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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MAY 29, 1998
CAPSTAR BROADCASTING CORPORATION
(Exact name of registrants as specified in their charters)
<TABLE>
<S> <C> <C>
DELAWARE 333-48819 74-2833106
(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation) Identification No.)
600 CONGRESS AVENUE, SUITE 1400
AUSTIN, TEXAS 78701
(Address of principal executive offices) (Zip code)
</TABLE>
Registrant's telephone number, including area code: (512) 340-7800
NOT APPLICABLE
(former name and former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
SFX ACQUISITION
On May 29, 1998, SBI Holding Corporation, a Delaware corporation
("Parent"), acquired SFX Broadcasting, Inc. (now known as Capstar
Communications, Inc.), a Delaware corporation ("SFX"). The acquisition was
effected through the merger (the "Merger") of SBI Radio Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), with and into SFX, with SFX as the surviving corporation. The
acquisition of SFX by Parent resulted in a change of control of SFX. As a
result of the Merger, SFX became an indirect subsidiary of Capstar Broadcasting
Corporation, a Delaware corporation and sole indirect stockholder of Parent
(the "Company"). Capstar Radio Broadcasting Partners, Inc., an indirect,
wholly owned subsidiary of the Company ("Capstar Radio"), owns all of the
outstanding common stock of Parent.
The holders of (i) Class A common stock, par value $.01 per share
("SFX Class A Common Stock"), of SFX were paid $75.00 per share, (ii) Class B
common stock, par value $.01 per share ("SFX Class B Common Stock"), of SFX
were paid $97.50 per share, (iii) Series C Redeemable Preferred Stock, par
value $.01 per share ("SFX Series C Preferred Stock"), of SFX were paid
$1,009.73 per share, and (iv) Series D Cumulative Convertible Exchangeable
Preferred Stock, par value $.01 per share ("SFX Series D Preferred Stock" and
together with the SFX Class A Common Stock, SFX Class B Common Stock and SFX
Series C Preferred Stock, the "SFX Stock"), of SFX were paid $82.4025 per
share. Each issued and outstanding share of 12 5/8% Series E Cumulative
Exchangeable Preferred Stock, par value $.01 per share ("SFX Series E Preferred
Stock"), of SFX continues to be outstanding. SFX has delivered a notice of
redemption to each holder of the SFX Series E Preferred Stock with respect to a
partial redemption of the outstanding shares of SFX Series E Preferred Stock
that will be effected in accordance with the terms of the certificate of
designation governing the SFX Series E Preferred Stock. From and after the
effective time of the Merger (as defined below), each option or warrant to
purchase shares of the capital stock of SFX represented only the right to
receive cash from SFX (net of any applicable exercise price). The total
consideration paid by the Company in the Merger was approximately $1.5 billion
(the "Merger Consideration"), including the repayment of the outstanding
balance under the existing credit facility of SFX (the "SFX Credit Facility")
of approximately $313.0 million. The Merger Consideration was determined
through arms' length negotiations between the Company and SFX.
In connection with the Merger and other related transactions, the
Company (i) consummated an initial public offering of its Class A Common Stock,
par value $0.01 per share (the "Class A Common Stock") receiving approximately
$555.9 million in net proceeds, (ii) borrowed $150.0 million (the "Chancellor
Loan") from Chancellor Media Corporation, a Delaware corporation ("Chancellor
Media"), evidenced by a promissory note (the "Chancellor Note"), (iii) borrowed
$596.2 million (the "Capstar Loan") under the Capstar Credit Facility (as
defined below) and (iv) received approximately $265.0 million from sales of
certain assets. The net proceeds from these transactions were, or will be,
used by the Company (i) to finance the Merger and other related transactions,
(ii) to repay existing indebtedness under the SFX Credit Facility, (iii) to
purchase additional shares of common stock of SFX, (iv) to redeem
approximately $154.0 million aggregate principal amount of SFX's 10 3/4% Senior
Subordinated Notes Due 2006 (the "10 3/4% SFX Notes") for an aggregate purchase
price of $173.3 million, including a $16.6 million redemption premium and $2.8
million of accrued interest and (iv) to redeem approximately $119.6 million
aggregate liquidation preference of the SFX Series E Preferred Stock for an
aggregate purchase price of approximately $141.6 million, including a $15.1
million redemption premium and $6.9 million of accumulated dividends.
In connection with the Merger, Capstar Radio, as the borrower, entered
into a new Credit Agreement, dated as of May 29, 1998 (the "Capstar Credit
Facility"), with the Company, Capstar Broadcasting Partners, Inc., a Delaware
corporation and direct subsidiary of the Company, and the financial
institutions party thereto. The Capstar Credit Facility consists of a $500.0
million revolving loan, a $450.0 million A term loan and a $400.0 million B
term loan. The Capstar Credit Facility will also contain provisions for
additional terms loans and revolving loans in an aggregate amount up to $550.0
million, subject, in all instances, to future commitment availability from the
lenders at their discretion.
2
<PAGE> 3
The assets of SFX, included among other things, real property and
equipment. Such real property was used by SFX in connection with its radio
broadcasting business. The Company intends to continue to use such assets in
the radio broadcasting business.
Upon consummation of the Merger and other related transactions (as
described below), the consummation of some of which are subject to various
conditions, the Company, through its directly and indirectly wholly-owned
subsidiaries, will own and operate or provide services to 299 radio stations
(208 FM and 91 AM) in 75 mid-sized markets in the United States.
OTHER RELATED TRANSACTIONS.
KODA Exchange. On May 29, 1998, SFX, through its indirect,
wholly-owned subsidiaries, exchanged station KODA- FM in Houston, Texas for
Chancellor Media Corporation of Los Angeles radio stations WAPE-FM and WFYV-FM
in Jacksonville, Florida and approximately $90.25 million in cash (the "KODA
Exchange"). In a deferred like kind exchange transaction, the indirect,
wholly-owned subsidiaries of SFX, through a qualified intermediary, used the
$90.25 million in cash received from Chancellor Media Corporation of Los
Angeles to acquire radio stations KASE-FM, KVET-AM and KVET-FM in Austin,
Texas. The deemed value of the KODA Exchange was $143.3 million as determined
through arms' length negotiations between such subsidiaries and Chancellor
Media Corporation of Los Angeles. The assets of the radio stations consist of,
among other things, broadcasting licenses granted by the Federal Communications
Commission ("FCC"), transmitting antennae, transmitters and other broadcasting
and technical equipment, technical information and data and certain real
property. Such subsidiaries currently intends to continue broadcasting
operations of the radio stations and to utilize the assets thereof in such
operations.
Nashville Acquisition. On May 21, 1998, SFX completed the acquisition
of three radio stations (two FM and one AM) in the Nashville, Tennessee market
from Sinclair Broadcasting Group ("Sinclair Broadcasting") for an aggregate
purchase price of approximately $35.0 million (the "Nashville Purchase Price").
The assets of the radio stations consist of, among other things, broadcasting
licenses granted by the FCC, transmitting antennae, transmitters and other
broadcasting and technical equipment, technical information and data and
certain real property. SFX currently intends to continue broadcasting
operations of the radio stations and to utilize the assets thereof in such
operations. The Nashville Purchase Price was determined through arms' length
negotiations between SFX and Sinclair Broadcasting. SFX funded the Nashville
Purchase Price from excess cash on hand.
Greenville Disposition. On May 29, 1998, due to governmental
restrictions on multiple station ownership, the Company, through its indirect,
wholly-owned subsidiaries, completed the disposition of the assets of four
radio stations (three FM and one AM) in the Greenville, South Carolina market
for approximately $35.0 million (the "Greenville Sale Price") to Clear Channel
Radio, Inc. ("CCR"). The assets of the radio stations consist of, among other
things, broadcasting licenses granted by the FCC, transmitting antennae,
transmitters and other broadcasting and technical equipment, technical
information and data and certain real property. The Greenville Sale Price was
determined through arms' length negotiations between such subsidiaries and CCR.
Upper Fairfield Disposition. On May 29, 1998, due to governmental
restrictions on multiple station ownership, the Company, through its indirect,
wholly-owned subsidiaries, assigned the assets of four radio stations (two FM
and two AM), subject to a right of repurchase, with an aggregate fair market
value at such date of approximately $15.0 million (the "Estimated Upper
Fairfield Sale Price") to a trust, whose trustee is Henry M. Rivera (the
"Trustee") and whose beneficiary is the Company. Concurrently with such
assignment, such subsidiaries contributed their right to repurchase such assets
to Upper Fairfield Radio, L.L.C. ("Upper Fairfield") in exchange for all of the
outstanding ownership interests in Upper Fairfield. Upon the approval by the
FCC, it is expected that the Trustee will sell the assets to Upper Fairfield
for approximately $14.9 million and such subsidiaries will sell all of their
voting interests in Upper Fairfield to BBR II, L.L.C. for $150,000. After the
sale of the assets to Upper Fairfield, the Trustee will distribute the proceeds
to the Company. Such subsidiaries will retain a non-voting interest in Upper
Fairfield. The assets of the radio stations consist of, among other things,
broadcasting licenses granted by the FCC, transmitting antennae, transmitters
and other broadcasting and technical equipment, technical information and data
and certain real property.
3
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Daytona Beach-WGNE Disposition. On May 29, 1998, due to governmental
restrictions on multiple station ownership, two indirect, wholly-owned
subsidiaries of SFX completed the disposition of the assets of one FM radio
station in the Daytona Beach, Florida market for consideration of approximately
$11.5 million (the "Daytona Beach Sale Price") to Clear Channel Metroplex, Inc.
and Clear Channel Metroplex Licensee, Inc. (collectively, "CCM"). The assets
of the radio station consist of, among other things, broadcasting licenses
granted by the FCC, transmitting antennae, transmitters and other broadcasting
and technical equipment, technical information and data and certain real
property. The Daytona Beach Sale Price was determined through arms' length
negotiations between such subsidiaries and CCM.
Long Island Disposition. On May 29, 1998, due to governmental
restrictions on multiple station ownership, four indirect, wholly-owned
subsidiaries of SFX completed the disposition of the assets of four radio
stations (three FM and one AM) in the Long Island, New York market for an
aggregate sale price in cash of approximately $48.0 million (the "Long Island
Sale Price") to Cox Radio, Inc. ("Cox"). The assets of the radio stations
consist of, among other things, broadcasting licenses granted by the FCC,
transmitting antennae, transmitters and other broadcasting and technical
equipment, technical information and data and certain real property. The Long
Island Sale Price was determined through arms' length negotiations between such
subsidiaries and Cox.
Houston-KKPN Disposition. On May 29, 1998, due to governmental
restrictions on multiple station ownership, SFX, through two of its indirect,
wholly-owned subsidiaries, completed the disposition of the assets of one FM
radio station in the Houston, Texas market for cash consideration of
approximately $54.0 million (the "Houston-KKPN Sale Price") to HBC Houston,
Inc. and HBC Houston License Corporation (collectively, "HBC"). Pursuant to an
agreement with Chancellor Media, such subsidiaries will pay 50% of the sale
proceeds in excess of $50.0 million, approximately $2.0 million, to Chancellor
Media. The assets of the radio station consist of, among other things,
broadcasting licenses granted by the FCC, transmitting antennae, transmitters
and other broadcasting and technical equipment, technical information and data
and certain real property. The Houston-KKPN Sale Price was determined through
arms' length negotiations between such subsidiaries and HBC.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
The following information is included in this report beginning at page
F-1:
SFX Broadcasting, Inc.
- Report of Independent Auditors
- Consolidated Balance Sheets as of March 31, 1998 and as of
December 31, 1997 and 1996
- Consolidated Statements of Operations for the three months
ended March 31, 1998 and 1997 and for the years ended December
31, 1997, 1996 and 1995
- Consolidated Statements of Shareholders' Equity for the three
months ended March 31, 1998 and 1997 and for the years ended
December 31, 1997, 1996 and 1995
- Consolidated Statements of Cash Flows for the three months
ended March 31, 1998 and for the years ended December 31,
1997, 1996 and 1995
- Notes to Consolidated Financial Statements
(b) PRO FORMA FINANCIAL INFORMATION.
It is impracticable to provide the required pro forma financial
information at the time of this Report on Form 8-K because such information is
not currently available. The required pro forma financial information will be
filed as
4
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an amendment to this Report on Form 8-K as soon as practicable, but not later
than 60 days after the date this Report on Form 8-K is required to be filed.
(c) EXHIBITS.
2.1.1 Agreement and Plan of Merger, dated as of August 24, 1997 (the
"SFX Merger Agreement"), by and among SBI Holding Corporation,
SBI Radio Acquisition Corporation and SFX. (1)
2.1.2 Amendment No. 1 to SFX Merger Agreement. (2)
2.1.3 Amendment No. 2 to SFX Merger Agreement. (3)
10.1 Credit Agreement, dated as of May 29, 1998, among Capstar
Radio Broadcasting Partners, Inc., as the borrower, the
Company , Capstar Broadcasting Partners, Inc. and the
financial institutions party thereto. The Credit Agreement
filed herewith excludes the exhibits and schedules thereto.
The contents of such exhibits and schedules are described in
the Credit Agreement.*
10.2 Letter Agreement, dated February 20, 1998, between Chancellor
Media and the Company (the "Chancellor Letter Agreement"). (4)
10.3 Amendment to Chancellor Letter Agreement. (4)
10.4 Capstar Broadcasting Corporation Pledge Agreement, dated May
29, 1998, between the Company and Chancellor Media Corporation
of Los Angeles.*
10.5 Note, dated May 29, 1998, by the Company due to Chancellor
Media Corporation of Los Angeles.*
10.6 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.7 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.8 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.9 Warrant, dated April 1, 1998, issued to R. Steven Hicks.*
10.10 Warrant, dated April 1, 1998, issued to R. Steven Hicks.*
10.11 Warrant, dated April 1, 1998, issued to Paul D. Stone.*
10.12 Warrant, dated April 1, 1998, issued to William S. Banowksy,
Jr.*
10.13 Asset Exchange Agreement, dated as of May 29, 1998, among
Chancellor Media Corporation of Los Angeles, Chancellor Media
Licensee Company, SFX Texas Limited Partnership and SFXTX
Limited Partnership.*
- -------------
* Filed herewith.
(1) Incorporated by reference to SFX's Current Report on Form 8-K, dated
August 26, 1997, File No. 000-22486.
(2) Incorporated by reference to SFX's Annual Report on Form 10-K for the
year ended December 31, 1997, File No. 000-22486.
5
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(3) Incorporated by reference to SFX's Current Report on Form 8-K dated
February 17, 1998, File No. 000-22486.
(4) Incorporated by reference to the Company's Registration Statement on
Form S-1, dated May 19, 1998, File No. 333-48819.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on their behalf by
the undersigned thereunto duly authorized.
CAPSTAR BROADCASTING CORPORATION
(Registrant)
By: /s/ PAUL D. STONE
----------------------------------
Name: Paul D. Stone
--------------------------------
Title: Executive Vice President
-------------------------------
Date: June 12, 1998
<PAGE> 8
REPORT OF INDEPENDENT AUDITORS
Board of Directors
SFX Broadcasting, Inc.
We have audited the accompanying consolidated balance sheets of SFX
Broadcasting, Inc. and Subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of operations, shareholders' equity, and cash
flows for each of the three years in the period ended December 31, 1997. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
SFX Broadcasting, Inc. and Subsidiaries at December 31, 1997 and 1996, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1997 in conformity with generally
accepted accounting principles.
ERNST & YOUNG LLP
New York, New York
March 5, 1998 except for
Notes 2 and 14
as to which the date
is April 27, 1998
F-1
<PAGE> 9
SFX BROADCASTING, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
MARCH 31, ----------------------
1998 1997 1996
----------- ---------- --------
(UNAUDITED)
<S> <C> <C> <C>
Current Assets:
Cash and cash equivalents............................. $ 38,464 $ 24,686 $ 10,601
Cash pledged for letters of credit.................... -- -- 20,000
Accounts receivable less allowance for doubtful
accounts of $2,400 in 1998, $2,264 in 1997 and
$1,620 in 1996..................................... 64,447 71,241 47,275
Assets under contract for sale........................ 38,268 42,883 8,352
Prepaid and other current assets...................... 3,791 3,109 2,461
Receivable from SFX Entertainment..................... 125,378 11,539 --
---------- ---------- --------
Total current assets.......................... 270,348 153,458 88,689
Property and equipment:
Land.................................................. 6,169 6,169 6,791
Buildings and improvements............................ 20,389 18,295 11,485
Broadcasting equipment and other...................... 68,714 67,821 54,736
---------- ---------- --------
95,272 92,285 73,012
Less accumulated depreciation and amortization.......... (19,976) (17,456) (10,192)
---------- ---------- --------
Net property and equipment.............................. 75,296 74,829 62,820
Intangible Assets:
Broadcast licenses.................................... 915,020 913,887 558,640
Goodwill.............................................. 131,601 131,601 98,165
Deferred financing costs.............................. 22,250 22,250 19,504
Other................................................. 5,406 5,406 4,727
---------- ---------- --------
1,074,277 1,073,144 681,036
Less accumulated amortization........................... (46,898) (39,580) (16,933)
---------- ---------- --------
Net intangible assets................................... 1,027,379 1,033,564 664,103
Net assets to be distributed to shareholders............ 11,454 102,144 --
Deposits and other payments for pending acquisitions.... 4,295 5,830 31,692
Other assets............................................ 5,123 5,790 12,023
---------- ---------- --------
Total Assets.................................. $1,393,895 $1,375,615 $859,327
========== ========== ========
</TABLE>
See accompanying notes.
F-2
<PAGE> 10
SFX BROADCASTING, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AMOUNTS)
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
DECEMBER 31,
MARCH 31, ----------------------
1998 1997 1996
----------- ---------- --------
(UNAUDITED)
<S> <C> <C> <C>
Current Liabilities:
Accounts payable........................................ $ 14,624 $ 8,665 $ 10,921
Accrued expenses........................................ 11,966 19,246 21,913
Payable to former national sales representative......... 11,783 23,025 --
Accrued interest and dividends.......................... 25,851 20,475 7,111
Income tax payable...................................... 115,037 -- --
Current portion of long-term debt....................... 535 509 231
Current portion of capital lease obligations............ 82 101 150
---------- ---------- --------
Total current liabilities................................. 179,878 72,021 40,326
Long-term debt, less current portion...................... 763,882 763,966 480,875
Capital lease obligations, less current portion........... 103 126 204
Deferred income taxes..................................... 77,781 102,681 91,352
---------- ---------- --------
Total liabilities......................................... 1,021,644 938,794 612,757
Redeemable preferred stock................................ 376,615 361,996 145,999
Minority interests -- SFX Entertainment................... 56,200 -- --
Commitments and contingencies
Shareholders' Equity (Deficit):
Class A Voting common stock, $.01 par value; 100,000,000
shares authorized; and 9,562,602 issued and 9,532,157
outstanding at March 31, 1998, 9,508,379 issued and
9,477,934 outstanding at December 31, 1997 and
8,089,367 issued and 8,063,348 outstanding at
December 31, 1996.................................... 95 95 81
Class B Voting convertible common stock, $.01 par value;
10,000,000 shares authorized; 1,190,911 issued and
1,047,037 outstanding at March 31, 1998 and at
December 31, 1997 and 1,208,810 issued and 1,064,936
outstanding at December 31, 1996..................... 12 12 12
Additional paid-in capital................................ 183,141 185,537 189,920
Treasury Stock; 174,319 shares at March 31, 1998 and
December 31, 1997 and 170,192 shares at December 31,
1996.................................................... (6,523) (6,523) (6,393)
Accumulated deficit....................................... (237,289) (104,296) (83,049)
---------- ---------- --------
Total shareholders' equity (deficit)...................... (60,564) 74,825 100,571
---------- ---------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)...... $1,393,895 $1,375,615 $859,327
========== ========== ========
</TABLE>
See accompanying notes.
F-3
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SFX BROADCASTING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- ---------------------------------
1998 1997 1997 1996 1995
---------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Gross revenues................................. $ 74,405 $ 50,994 $ 306,842 $ 162,011 $ 87,140
Less agency commissions........................ (8,654) (6,003) (36,478) (18,950) (10,310)
---------- --------- --------- --------- ---------
Net revenues................................... 65,751 44,991 270,364 143,061 76,830
Station operating expenses..................... 44,636 29,916 167,063 92,816 51,039
Depreciation, amortization, duopoly integration
costs and acquisition related costs.......... 10,653 7,485 38,232 17,311 9,137
Corporate expenses, net of $2,206 allocated to
SFX Entertainment in 1997, including related
party expenses of $151 in 1996 and $330 in
1995, net of related party advisory fees of
$802 in 1996................................. 1,569 1,035 6,837 6,261 3,797
Non-cash stock compensation.................... 138 156 624 52 --
Non-recurring and unusual charges, including
adjustments to broadcast rights agreement.... 24,974 -- 20,174 28,994 5,000
---------- --------- --------- --------- ---------
Total operating expenses....................... 81,970 38,592 232,930 145,434 68,973
---------- --------- --------- --------- ---------
Operating income (loss)........................ (16,219) 6,399 37,434 (2,373) 7,857
Investment income.............................. (202) (1,654) 2,821 4,017 650
Interest expense............................... 19,190 12,712 (64,506) (34,897) (12,903)
Loss on sale of radio station.................. -- -- -- (1,900) --
---------- --------- --------- --------- ---------
Loss from continuing operations before income
taxes and extraordinary item................. (35,207) (4,659) (24,251) (35,153) (4,396)
Income tax expense............................. 210 285 810 480 --
---------- --------- --------- --------- ---------
Loss from continuing operations before
extraordinary item........................... (35,417) (4,944) (25,061) (35,633) (4,396)
Discontinued operations:
Income (loss) from operations to be
distributed to shareholders, net of
taxes...................................... (97,576) (1,544) 3,814 -- --
Loss on disposal of operations to be
distributed to shareholders................ -- -- -- -- --
---------- --------- --------- --------- ---------
Income (loss) from discontinued operations..... (97,576) (1,544) 3,814 -- --
---------- --------- --------- --------- ---------
Loss before extraordinary item................. (132,993) (6,488) (21,247) (35,633) (4,396)
Extraordinary loss on debt retirement.......... -- -- -- 15,219 --
---------- --------- --------- --------- ---------
Net loss....................................... (132,993) (6,488) (21,247) (50,852) (4,396)
Redeemable preferred stock dividends and
accretion.................................... 10,350 7,952 38,510 6,061 291
---------- --------- --------- --------- ---------
Net loss applicable to common stock............ $ 143,343 $ (14,440) $ (59,757) $ (56,913) $ (4,687)
========== ========= ========= ========= =========
Loss per basic common share from continuing
operations................................... $ (4.34) $ (1.41) $ (6.67) $ (5.51) $ (0.71)
(Loss) income per basic common share from
operations to be distributed to
shareholders................................. (9.24) (0.17) 0.40 -- --
---------- --------- --------- --------- ---------
Loss per basic common share before
extraordinary item........................... $ (13.58) $ (1.58) $ (6.27) $ (5.51) $ (0.71)
Extraordinary loss on debt retirement per basic
common share................................. -- -- -- (2.01) --
---------- --------- --------- --------- ---------
Loss per basic common share.................... $ (13.58) $ (1.58) $ (6.27) $ (7.52) $ (0.71)
========== ========= ========= ========= =========
Weighted average common shares outstanding..... 10,554,130 9,161,433 9,526,429 7,563,600 6,595,728
========== ========= ========= ========= =========
</TABLE>
See accompanying notes.
F-4
<PAGE> 12
SFX BROADCASTING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1995, 1996, AND 1997 AND THREE MONTHS ENDED MARCH 31,
1998
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
CLASS A CLASS B PAID-IN TREASURY ACCUMULATED
COMMON COMMON CAPITAL STOCK DEFICIT TOTAL
------- ------- -------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1994..... $48 $ 9 $ 76,600 -- $ (27,801) $ 48,856
Public offering, net of
expenses..................... 17 39,149 39,166
Redemption of Class C Common... (459) (459)
Accretion and dividends on
redeemable preferred stock... (291) (291)
Conversion of Class A Common to
Class B Common............... (1) 1 --
Decrease in unrealized holding
losses....................... 185 185
Net loss....................... (4,396) (4,396)
--- --- -------- ------- --------- ---------
Balance, December 31, 1995..... $64 $10 $115,184 $ -- $ (32,197) $ 83,061
=== === ======== ======= ========= =========
Accretion and dividends on
redeemable preferred stock... (6,061) (6,061)
Issuance upon exercise of stock
options...................... 370 370
Issuance of warrants to SCMC... 8,905 8,905
Issuance of equity securities
for MMR Merger............... 17 2 71,522 71,541
Repurchase of common stock..... (6,393) (6,393)
Net loss....................... (50,852) (50,852)
--- --- -------- ------- --------- ---------
Balance, December 31, 1996..... $81 $12 $189,920 $(6,393) $ (83,049) $ 100,571
=== === ======== ======= ========= =========
Issuance upon exercise of stock
options...................... 11 21,132 21,143
Issuance upon exercise of Class
B Warrants................... 2,476 2,476
Issuance of stock for
acquisitions................. 3 9,519 9,522
Payment from shareholder....... 1,000 1,000
Accretion and dividends on
redeemable preferred stock... (38,510) (38,510)
Repurchase of common stock..... (130) (130)
Net loss....................... (21,247) (21,247)
--- --- -------- ------- --------- ---------
Balance, December 31, 1997..... $95 $12 $185,537 $(6,523) $(104,296) $ 74,825
=== === ======== ======= ========= =========
Redeemable preferred stock
dividends and accretion...... (10,350) (10,350)
Other, principally shares
issued pursuant to stock
option plans................. 7,954 7,954
Net loss....................... (132,993) (132,993)
--- --- -------- ------- --------- ---------
Balance at March 31, 1998
(unaudited).................. $95 $12 $183,141 $(6,523) $(237,289) $ (60,564)
=== === ======== ======= ========= =========
</TABLE>
See accompanying notes.
F-5
<PAGE> 13
SFX BROADCASTING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
--------------------- --------------------------------
1998 1997 1997 1996 1995
--------- --------- --------- --------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Operating activities:
Net loss.............................................. $(132,993) $ (6,488) $ (21,247) $ (50,852) $ (4,396)
Income from operations to be distributed to
shareholders........................................ 27,296 1,544 (3,814) -- --
Adjustments to reconcile net loss to net cash provided
by (used in) operating activities:
Depreciation........................................ 2,986 2,253 10,955 5,972 2,658
Amortization........................................ 7,546 4,932 26,406 10,202 5,099
Noncash portion of non-recurring and unusual
charge............................................ 4,196 -- 4,712 9,878 --
Extraordinary loss on debt repayment................ -- -- -- 15,219 --
Loss on sale of radio station and other noncash
items............................................. -- -- -- 1,900 (207)
Deferred taxes...................................... (13,500) -- -- (710) --
Changes in assets and liabilities, net of amounts
acquired:
Accounts receivable............................... 6,794 6,076 (22,189) (13,839) (5,164)
Prepaid and other assets.......................... 6,140 (1,256) 2,599 (1,704) 2,052
Accrued interest and dividends.................... 12,098 11,966 345 3,841 6
Accounts payable, accrued expenses and other
liabilities..................................... (14,991) (9,959) 6,275 6,646 451
--------- --------- --------- --------- --------
Cash provided by (used in) continuing
operations................................... (94,428) 9,068 4,042 (13,447) 499
Cash from operating activities of SFX
Entertainment.............................. 9,140 307 1,005 -- --
--------- --------- --------- --------- --------
Net cash provided by (used in) operating
activities................................... (85,288) 9,375 5,047 (13,447) 499
Investing activities:
Purchase of stations and related businesses, net of
cash acquired..................................... -- (63,667) (408,788) (493,433) (26,057)
Proceeds from sales of stations and other assets.... 4,692 717 1,836 56,943 703
Deposits and other payments for pending
acquisitions...................................... (59) (14,545) (3,594) (30,799) (3,000)
Purchase of property and equipment.................. (3,602) (2,763) (12,409) (3,224) (3,261)
Sale of short-term investments...................... -- -- -- -- 7,918
Loans and advances to related parties............... -- (2,800) (2,800) -- (2,000)
Net tax liability on Spin-Off to be reimbursed...... 105,975 -- -- -- --
--------- --------- --------- --------- --------
Net cash used in investing activities........... 107,006 (83,058) (425,755) (470,513) (25,697)
Cash from investing activities of SFX
Entertainment..................................... (379,782) (22,612) (73,296) -- --
--------- --------- --------- --------- --------
Net cash used in investing activities........... (272,776) (105,670) (499,051) (470,513) (25,697)
Financing activities:
Payments on long-term debt, including prepayment
premiums.......................................... (100) (50,123) (73,863) (110,396) (22,521)
Additions to debt issuance costs.................... -- (52) (3,006) (19,505) (2,139)
Proceeds from issuance of senior and subordinated
debt.............................................. -- 20,000 356,500 501,500 22,000
Net proceeds from sales of preferred stock.......... -- 215,258 215,258 143,445 --
Dividends paid on preferred stock................... (2,459) (2,459) (23,487) (4,983) --
Proceeds from issuance of common stock and
shareholders...................................... 3,759 46 24,619 -- 39,166
Purchases of treasury stock......................... -- -- (130) (6,393) --
Stock, redemptions, retirements and other........... -- -- (1,000) (1,000) (2,609)
--------- --------- --------- --------- --------
Net cash provided by financing activities....... 1,200 182,670 494,891 502,668 33,897
Cash from financing activities of SFX
Entertainment..................................... 458,654 (29) (823) -- --
--------- --------- --------- --------- --------
Net cash provided by financing activities....... 459,854 182,641 494,068 502,668 33,897
Net increase in cash and cash equivalents........... 101,790 86,346 64 18,708 8,699
Cash and cash equivalents at beginning of period.... 30,666 30,601 30,601 11,893 3,194
Cash of SFX Entertainment at the end of period...... 93,992 (2,622) (5,979) -- --
--------- --------- --------- --------- --------
Cash and equivalents at end of period............... $ 38,464 $ 114,325 $ 24,686 $ 30,601 $ 11,893
========= ========= ========= ========= ========
</TABLE>
Supplemental disclosure of cash flow information (See Note 13).
See accompanying notes.
F-6
<PAGE> 14
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
NOTE 1 -- ORGANIZATION AND BASIS OF PRESENTATION
SFX Broadcasting, Inc. (the "Company"), a Delaware corporation, is one of
the largest radio station groups in the United States. At December 31, 1997, the
Company owned and operated, provided programming to or sold advertising on
behalf of sixty-three FM stations and nineteen AM stations serving the following
twenty-three markets: Dallas, Texas; Houston, Texas; Pittsburgh, Pennsylvania;
Milwaukee, Wisconsin; San Diego, California; Providence, Rhode Island;
Indianapolis, Indiana; Charlotte, North Carolina; Hartford, Connecticut;
Greensboro, North Carolina; Nashville, Tennessee; Raleigh-Durham, North
Carolina; Jacksonville, Florida; Richmond, Virginia; Albany, New York;
Greenville-Spartanburg, South Carolina; Tucson, Arizona;
Springfield/Northampton, Massachusetts; Wichita, Kansas; Daytona Beach, Florida;
New Haven, Connecticut; Jackson, Mississippi and Biloxi, Mississippi.
In addition, in 1997, the Company, through the acquisitions of
Delsener/Slater Enterprises, Ltd. ("Delsener/Slater"), a concert promotion
company based in New York City, Sunshine Promotions, Inc., ("Sunshine
Promotions"), an Indianapolis concert promotion company which owns the Deer
Creek Music Theater and the Polaris Amphitheater and certain related companies,
and certain companies which collectively own and operate the Meadows Music
Theater, (the "Meadows"), a 25,000-seat indoor/outdoor complex located in
Hartford, Connecticut, became one of the largest live entertainment groups in
the United States.
As more fully described in Note 2, the Company has entered into an
Agreement and Plan of Merger and intends to distribute to its shareholders its
live entertainment business. Therefore, the live entertainment business has been
classified as net assets to be distributed to shareholders and income from
operations to be distributed to shareholders in the consolidated financial
statements. The Company has also recently completed substantial additional
acquisitions in the live entertainment business (see Note 14).
NOTE 2 -- RECENT DEVELOPMENT; SPIN-OFF AND PENDING MERGER
On August 24, 1997, the Company entered into an Agreement and Plan of
Merger with SBI Holdings Corporation, a wholly owned subsidiary of Capstar
Broadcasting Corporation ("Buyer"), and SBI Radio Acquisition Corporation
pursuant to which the Company will become a wholly owned subsidiary of Buyer
(the "Merger"). In the Merger, holders of the Company's Class A Common Stock
will receive $75.00 per share, Class B Common Stock will receive $97.50 per
share, and the 6 1/2% Series D Cumulative Convertible Exchangeable Preferred
Stock will convert into the right to receive an amount equal to the product of
(i) $75.00 and (ii) the number of shares of Class A Common Stock into which that
share would convert immediately prior to the consummation of the Merger; in each
case, subject to adjustment under certain circumstances. Pursuant to the merger
agreement, the Company distributed the net assets (the "Spin-Off") of its live
entertainment business ("SFX Entertainment") pro-rata to its stockholders and
the holders of certain warrants, options and stock appreciation rights on April
27, 1998.
Until the consummation of the Merger, senior management of the Company will
continue to serve in their present capacities with the Company while devoting
such time as they deem reasonably necessary to conduct the operations of SFX
Entertainment. Although SFX Entertainment has not yet entered into employment
agreements with such members of senior management, most members of existing
management have agreed in principle to become full-time employees of SFX
Entertainment and Mr. Sillerman, Executive Chairman, will continue to be
Executive Chairman of SFX Entertainment upon consummation of the Merger.
SFX Entertainment is required to repay to the Company all amounts paid in
connection with its concert promotion acquisitions and certain capital
improvements since the date of the Merger agreement and SFX Entertainment will
assume all the liabilities and obligations related to such company's business.
As of March 31, 1998, the Company had a $5.4 million receivable from SFX
Entertainment related to such obligations. In April 1998, SFX Entertainment
reimbursed such amount to the Company.
F-7
<PAGE> 15
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Upon the consummation of the Merger, all net working capital of the
Company, as determined in accordance with the merger agreement, will be paid to
SFX Entertainment by the Company or any net negative working capital will be
paid to the Company by SFX Entertainment. As of March 31, 1998, the Company
estimates that the working capital to be paid by SFX Entertainment would have
been approximately $3.3 million.
The consummation of the Merger is subject to the receipt of certain
regulatory approvals. In February 1998, the Company received the consents of the
holders of the Series E Preferred Stock and certain of the Company's outstanding
notes and in March 1998 the required approval of the shareholders.
SFX Entertainment also will be responsible for any taxes of the Company
resulting from the Spin-Off, including any income taxes to the extent that the
income taxes result from gain on the distribution that exceeds the net operating
losses of the Company and SFX Entertainment available to offset gain. In
connection with the use of the Company's NOL's to offset the Spin-Off gain, a
tax benefit of $13.5 million has been recorded in operations to be distributed
to shareholders. Such tax benefit includes a $8.5 million reversal of the
Company's deferred tax asset valuation allowance at December 31, 1997, the
remainder reflects a benefit for a $5.0 million estimated use of the Company's
NOL generated during the first quarter of 1998. In addition, the Spin-Off gain
was also offset by the Company NOL's generated from the exercise of stock
options in 1997. As a result, the deferred tax asset valuation allowance at
December 31, 1997 was reduced by an additional $11.4 million and the related tax
benefit has reduced the income (loss) from operations to be distributed to
shareholders, net of taxes, in the consolidated statement of operations for the
three months ended March 31, 1998. Also included in income (loss) from
operations to be distributed to shareholders, net of tax benefit for the three
months ended March 31, 1998 is estimated tax expense of $117 million related to
the taxable gain on the spin-off.
The actual amount of the tax indemnification payment will be based largely
on the excess of the value of SFX Entertainment's Common Stock on the date of
the Spin-Off over the tax basis of that stock. Management estimates that SFX
Entertainment will be required to pay approximately $120.0 million pursuant to
such indemnification obligation, based on the $30 1/2 average per share price on
the Spin-Off date. The Company expects that such indemnity payment will be due
on or about June 15, 1998. It is the Company's understanding that SFX
Entertainment intends to pay such indemnification amount with the proceeds from
a public offering of SFX Entertainment's capital stock. No assurances can be
given that SFX Entertainment's public offering will be successful or, if
successful, that such payment will be received in time by the Company to pay
such tax liability.
The Company anticipates that the Merger will be consummated in the second
quarter of 1998. There can be no assurance that the regulatory approvals will be
given or that the conditions to consummating the Merger will be met.
The operations of SFX Entertainment have been presented in the financial
statements as operations to be distributed to shareholders pursuant to the
Spin-Off. During the three months ended March 31, 1998, revenue and loss from
operations for SFX Entertainment were $61.0 million and $27.6 million,
respectively. Included in operating expenses is $1.3 million of allocated
corporate expenses, net of $133,000 of reimbursements from Triathlon (Note 9).
Additionally, interest expense relating to the debt to be distributed to the
shareholders pursuant to the Spin-off of $6.7 million has been allocated to SFX
Entertainment. During the year ended December 31, 1997, revenue and income from
operations for SFX Entertainment were $96.1 million and $5.1 million,
respectively. Included in operating expenses is $2.2 million of allocated
corporate expenses net of $1.8 million of reimbursement from Triathlon (Note 9).
Additional, interest expense relating to the debt to be distributed to the
shareholders pursuant to the Spin-Off of $1.6 million has been allocated to SFX
Entertainment. The Company provides various administrative services to SFX
Entertainment. It is the Company's policy to allocate these expenses on the
basis of direct usage. In the opinion of management, this
F-8
<PAGE> 16
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
method of allocation is reasonable and allocated expenses approximate what SFX
Entertainment would have occurred on a stand-alone basis.
NOTE 3 -- ACQUISITIONS AND DISPOSITIONS
Radio Broadcasting Acquisitions. In August 1997, the Company acquired two
radio stations operating in Pittsburgh, Pennsylvania and two radio stations in
Milwaukee, Wisconsin for $35.0 million (the "Hearst Acquisition").
In August 1997, the Company exchanged one radio station in Pittsburgh,
Pennsylvania, which the Company had recently acquired from Secret Communications
Limited Partnership ("Secret Communications") (part of the Secret Communications
Acquisition, as defined below), and $20.0 million in cash for one radio station
in Charlotte, North Carolina (the "Charlotte Exchange"). The Company operated
the radio station in Charlotte, North Carolina pursuant to a local market
agreement during July 1997.
In July 1997, the Company acquired substantially all of the assets of four
radio stations operating in Richmond, Virginia for approximately $46.5 million
in cash, including payments made to buy out minority equity interests which the
Company had originally agreed to provide to certain of the sellers (the
"Richmond Acquisition").
In April 1997, the Company acquired substantially all of the assets of
three radio stations in Indianapolis, Indiana and in June 1997 the Company
acquired substantially all of the assets of four stations in Pittsburgh,
Pennsylvania from Secret Communications for a total purchase price of $255.0
million in cash (collectively, the "Secret Communications Acquisition").
Also in April 1997, the Company sold one radio station operating in Little
Rock, Arkansas (the "Little Rock Disposition") to Triathlon Broadcasting
Company, a related party. The station was sold for $4.1 million, of which $3.5
million had been held as a deposit by the Company since 1996. No gain or loss
was recorded on the transaction as the radio station was recently acquired in
connection with the MMR Merger, as defined below.
In March 1997, the Company acquired two radio stations operating in
Houston, Texas, for a purchase price of approximately $43.0 million in cash,
exclusive of certain additional contingent liabilities which may become payable
(the "Texas Coast Acquisition"). The Texas Coast Acquisition increased the
number of stations the Company owns in the Houston market to four.
In March 1997, the Company exchanged one radio station operating in
Washington D.C./Baltimore, Maryland, for two radio stations operating in Dallas,
Texas (the "CBS Exchange") and completed the sale of two radio stations
operating in the Myrtle Beach, South Carolina market for $5.1 million payable in
installments over a five year period (present value approximately $4.3 million).
The CBS Exchange was structured as a substantially tax free exchange of
like-kind assets. The contract for the sale of the Myrtle Beach stations was in
place prior to the merger with Multi-Market Radio, Inc. ("MMR"). No gain or loss
was recognized on the Myrtle Beach stations that were recently acquired in the
MMR Merger, as defined below.
Costs of $871,000 related to the reformatting of the Dallas stations was
included in depreciation, amortization, duopoly integration costs and
acquisition related costs in 1997.
In February 1997, the Company purchased WWYZ-FM, operating in Hartford,
Connecticut, for a purchase price of $25.9 million in cash (the "Hartford
Acquisition"). The Hartford Acquisition increased the number of stations the
Company owns in the Hartford market to five.
In January 1997, the Company purchased one radio station operating in
Albany, New York, for $1.0 million in cash (the "Albany Acquisition").
F-9
<PAGE> 17
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In December 1996, the Company acquired substantially all of the assets of
WHSL-FM, operating in Greensboro, North Carolina, for a purchase price of $6.0
million in cash (the "Greensboro Acquisition") and exchanged radio station
KRLD-AM, Dallas, Texas and the Texas State Networks for radio station KKRW-FM,
Houston, Texas (the "Houston Exchange"). The Houston Exchange was structured as
a substantially tax free exchange of like kind assets. No gain or loss was
recorded on the Houston Exchange as the book values of KRLD-AM and the Texas
State Networks approximated the fair value of the assets of KKRW-FM.
In November 1996, the Company consummated its merger with MMR (the "MMR
Merger"), pursuant to which it acquired MMR in exchange for 1,631,450 shares of
Class A Common Stock, 208,810 shares of Class B Common Stock both valued at $34
per share and other equity securities with a total market value for all
securities issued of approximately $71.5 million in cash (Note 7). Concurrently
with the consummation of the MMR Merger, the Company paid approximately $43.0
million in cash to satisfy outstanding indebtedness of MMR. MMR was organized in
1992 by the Company's executive chairman and another officer and director of the
Company. The Company's executive chairman owned a substantial equity interest in
MMR which was exchanged for Class B Common Stock of the Company upon the
consummation of the MMR Merger. MMR owned and operated, provided programming to
or sold advertising on behalf of thirteen FM stations and on AM station located
in eight markets: New Haven, Connecticut; Hartford, Connecticut;
Springfield/Northampton, Massachusetts; Daytona Beach, Florida; Augusta,
Georgia; Biloxi, Mississippi; Myrtle Beach, South Carolina and Little Rock,
Arkansas. Prior to the MMR Merger, MMR had entered into agreements to sell two
stations operating in Myrtle Beach, South Carolina and one station operating in
Little Rock, Arkansas (the "MMR Dispositions"). The MMR Dispositions, which were
completed in 1997 as described above, are classified as assets under contract
for sale in the accompanying balance sheet at December 31, 1996. The Company
also terminated a Joint Sales Agreement ("JSA") with one station operating in
Augusta, Georgia and its Local Marketing Agreement ("LMA") with one station
operating in Myrtle Beach, South Carolina in December 1996.
In October 1996, the Company sold radio station KTCK-AM, Dallas, Texas for
approximately $13.4 million in cash, net of certain sale expenses (the "Dallas
Disposition"). The Company acquired the assets of KTCK-AM in Dallas, Texas (the
"Dallas Acquisition") in September 1995 from a third party for $8,633,000 in
cash (including $133,000 in transaction costs) and $2,000,000 of 6% current
coupon Series C Redeemable Preferred Stock (Note 6). The purchase agreement
contains a provision for a contingent payment not to exceed $7,500,000 payable
in 1998 if the Company's Dallas properties achieve certain ratings and financial
goals. In 1996, the Company recorded a loss of $1.9 million on the Dallas
disposition, based on its estimate of the ultimate resolution of the
contingency. During 1997, the company paid $3,000,000 to the Seller in
connection with this provision, leaving a remaining accrual at December 31, 1997
of approximately $300,000, and it is unable to reasonably estimate future
amounts due, if any. The Company had provided programming to KTCK-AM pursuant to
an LMA since March 1, 1995.
In July 1996, the Company acquired Liberty Broadcasting, Inc. ("Liberty
Broadcasting") for a purchase price of approximately $239.7 million in cash,
including $10.4 million for working capital (the "Liberty Acquisition"). Liberty
Broadcasting was a privately-held radio broadcasting company which owned and
operated, provided programming to or sold advertising on behalf of fourteen FM
and six AM radio stations (the "Liberty Stations") located in six markets:
Washington, DC/Baltimore, Maryland; Nassau-Suffolk, New York; Providence, Rhode
Island; Hartford, Connecticut; Albany, New York and Richmond, Virginia.
In July 1996, the Company sold three of the Liberty Stations operating in
the Washington, DC/Baltimore, Maryland market (the "Washington Dispositions")
for $25.0 million. No gain or loss was recognized on the Washington
Dispositions.
In July 1996, the Company acquired from Prism Radio Partners, L.P.
("Prism"), substantially all of the assets used in the operation of eight FM and
five AM radio stations located in four markets: Jacksonville,
F-10
<PAGE> 18
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Florida; Raleigh, North Carolina; Tucson, Arizona and Wichita, Kansas. In
September 1996, the Company also acquired from Prism substantially all of the
assets of three radio stations operating in Louisville, Kentucky (the
"Louisville Stations"), upon renewal of the Federal Communications Commission
("FCC") licenses of such stations (the "Louisville Acquisition") (collectively
the "Prism Acquisition"). The total purchase price for the Prism Acquisition was
approximately $105.3 million in cash. In October 1996, the Company sold the
Louisville Stations (the "Louisville Disposition") for $18.5 million in cash.
The Company recognized no gain or loss on the Louisville Disposition.
In July 1996, the Company acquired substantially all of the assets of
WJDX-FM, Jackson, Mississippi for a purchase price of approximately $3.2
million. In addition, in August 1996, the Company acquired substantially all of
the assets of WSTZ-FM and WZRX-AM, each operating in Jackson, Mississippi, for
approximately $3.5 million in cash (collectively, the "Jackson Acquisitions").
In June 1996, the Company acquired substantially all of the assets of
WROQ-FM, Greenville, South Carolina, for approximately $14.0 million in cash
(the "Greenville Acquisition") and WTRG-FM and WRDU-FM, both operating in
Raleigh, North Carolina, and WMFR-AM, WMAG-FM and WTCK-AM (formerly WWWB-AM),
each operating in Greensboro, North Carolina for approximately $36.8 million in
cash (the Raleigh-Greensboro Acquisition").
In February 1996, the Company acquired radio stations WTDR-FM and WLYT-FM
(formerly WEZC-FM), both operating in Charlotte, North Carolina (the "Charlotte
Acquisition"), for an aggregate purchase price of $24.3 million in cash. Costs
of $785,000 related to the integration and reformatting of the Charlotte
stations were included in depreciation, amortization, duopoly integration costs
and acquisition related costs in 1996.
In April 1995, the Company acquired all of the outstanding stock of Parker
Broadcasting Company ("Parker"), the owner and licensee of radio station KYXY-FM
in San Diego, California (the "San Diego Acquisition"), for approximately
$17,424,000 in cash (including transaction costs of $831,000 of which $175,000
was paid to Sillerman Communications Management Company ("SCMC") for providing
or paying for legal services necessary in negotiating and documenting the
transaction), including a $650,000 three year covenant not to compete with the
former owners. In addition, costs of $1,380,000 related to the integration of
KYXY-FM and reformatting of its duopoly partner, KPLN-FM, were included in
depreciation, amortization, duopoly integration costs and acquisition related
costs in 1995. The Company had provided programming to and sold advertising on
behalf of KYXY-FM pursuant to an LMA since January 18, 1995.
For financial statement purposes, all of the acquisitions described above
were accounted for using the purchase method, with the aggregate purchase price
allocated to the tangible and identifiable intangible assets based upon current
estimated fair market values. Certain of the recent transactions are based on
preliminary estimates of the fair value of the net assets acquired and subject
to final adjustment. The assets and liabilities of these acquisitions and the
results of their operations for the period from the date of acquisition have
been included in the accompanying consolidated financial statements. The
following unaudited pro forma summary presents the consolidated results of
operations, excluding operations to be distributed to shareholders, for the
years ended December 31, 1997, 1996 and 1995 as if the acquisitions for any
given year and the subsequent year had occurred at the beginning of such year
after giving effect to certain adjustments, including amortization of goodwill
and interest expense on the acquisition debt. These pro forma results have been
F-11
<PAGE> 19
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
prepared for comparative purposes only and do not purport to be indicative of
what would have occurred had the acquisition been made as of that date or of
results which may occur in the future.
PRO FORMA
YEAR ENDED DECEMBER 31
IN THOUSANDS EXCEPT PER SHARE DATA
(UNAUDITED)
<TABLE>
<CAPTION>
1997 1996 1995
---------- ---------- ----------
<S> <C> <C> <C>
Net revenues.......................................... $ 309,049 $ 276,075 $ 189,595
========== ========== ==========
Loss before extraordinary item........................ $ (23,436) $ (49,285) $ (16,978)
========== ========== ==========
Net loss.............................................. $ (23,436) $ (64,504) $ (32,197)
========== ========== ==========
</TABLE>
Pending Radio Broadcasting Transactions.
Pursuant to separate agreements, the Company has agreed to: (i) exchange
four radio stations owned by the Company and located on Long Island, New York,
for $11 million cash and two radio stations operating in Jacksonville, Florida,
where the Company currently owns four stations, (the "Chancellor Exchange");
(ii) acquire three radio stations operating in Nashville, Tennessee, where the
Company currently owns two radio stations, for $35 million (the "Nashville
Acquisition"); and (iii) sell six stations in Jackson, Mississippi and two
stations in Biloxi, Mississippi for $66.0 million in cash (the "Jackson and
Biloxi Disposition"). The assets related to the Jackson and Biloxi Deposition
are classified as assets under contract for sale in the accompanying balance
sheet as of December 31, 1997. The Chancellor Exchange and the Nashville
Acquisition are collectively referred to as the "Pending Acquisition." The
Jackson and Biloxi Disposition is referred to herein as the "Pending
Disposition." The U.S. Department of Justice, Antitrust Division (the "DOJ") has
brought suit alleging that the Chancellor Exchange is likely to reduce
competition. The complaint requests permanent injunctive relief preventing the
consummation of the acquisition of the Long Island stations by Chancellor Media
Corporation ("Chancellor"). The Company, Chancellor, an affiliate of Buyer, and
DOJ are currently involved in settlement discussions. If successfully concluded,
these settlement discussions will resolve all competitive issues raised by DOJ
and will terminate all investigations or litigation by DOJ with respect to the
Company, the Merger, the Pending Acquisitions and the Pending Disposition. The
Company cannot, however, be certain that the settlement discussions will be
successful. If the Company fails to reach an acceptable settlement agreement
with DOJ, the Company intends to defend the suit vigorously. At December 31,
1997, the Company had capitalized $1.7 million of costs related to the
acquisition of the Jacksonville radio stations. In the event the Chancellor
Exchange does not take place the Company will be required to write-off such
costs.
The aggregate proceeds to be received from these transactions, net of
acquisitions, is approximately $42 million. The Company has deposited $2.0
million in escrow to secure its obligations under these agreements. The Company
expects to record a pre-tax gain of approximately $20.0 million on the Jackson
and Biloxi Disposition. The Company does not expect to record a gain or loss on
the other transactions as the assets were recently acquired.
Concert Promotion Acquisitions. During 1997, the Company also acquired the
following concert promotion companies, which are expected to be contributed to
SFX Entertainment at the Spin-Off date.
In January 1997, the Company purchased Delsener/Slater for an aggregate
consideration of approximately $26.6 million, including $2.9 million for working
capital and the present value of deferred payments of $3.0 million to be paid,
without interest, over five years and $1.0 million to be paid, without interest,
over ten years (the "Delsener/Slater Acquisition"). The deferred payments are
subject to acceleration in certain circumstances.
F-12
<PAGE> 20
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In March 1997, Delsener/Slater consummated the acquisition of certain
companies which collectively own and operate the Meadows (the "Meadows
Acquisition") for $900,000 in cash, 250,838 shares of SFX Class A Common Stock
with a value of approximately $7.5 million and the assumption of approximately
$15.4 million of debt.
SFX Entertainment may assume the obligation to exercise an option held by
the Company to repurchase 250,838 shares of the Company's Class A Common Stock
for an aggregate purchase price of $8.3 million (the "Meadows Repurchase"). This
option was granted in connection with the acquisition of the Meadows Music
Theater. If the option were exercised by the Company, the exercise would result
in a reduction of working capital in connection with the Spin-Off by
approximately $8.3 million. If the option were not exercised, working capital
would decrease by approximately $10.5 million.
Also in March 1997, the Company, in partnership with Pavilion Partners,
entered into a twenty-two year lease to operate the PNC Bank Arts Center, a
10,800 seat complex located in Holmdel, New Jersey. The lease also granted
Pavilion Partners the right to expand the capacity to 17,500 prior to the 1998
season.
In June 1997, the Company acquired Sunshine Promotions for $53.9 million in
cash at closing, $2.0 million in cash payable over 5 years, 62,792 shares of
Class A Common Stock issued and issuable over a two year period with a value of
approximately $4.0 million and the assumption of approximately $1.6 million of
debt. The assets to be acquired include Deer Creek Music Center, a 21,000 seat
complex located in Indianapolis, Indiana, the Polaris Amphitheater, a 20,000
seat complex located in Columbus, Ohio and a 99 year lease to operate Murat
Centre, a 2,700 seat theater and 2,200 seat ballroom, located in Indianapolis,
Indiana.
For financial statement purposes, all of the concert acquisitions described
above were accounted for using the purchase method, with the aggregate purchase
price allocated to the tangible and identifiable intangible assets based upon
current estimated fair market values. The concert acquisitions are based on
preliminary estimates of the fair value of the net assets acquired and subject
to final adjustment. The assets and liabilities of these acquisitions and the
results of their operations for the period from the date of acquisition have
been included as net assets and income from operations to be distributed to
shareholders in the accompanying consolidated financial statements.
NOTE 4 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Consolidation
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All significant intercompany accounts for
transactions have been eliminated in consolidation. The Company accounts for
investments in which it has a 50% or less and 20% or greater ownership interest
under the equity method.
Cash and Cash Equivalents
All highly liquid investments with an original maturity of less than three
months are classified as cash equivalents. The carrying amounts of cash and cash
equivalents reported in the balance sheet approximate their fair values.
Property and Equipment
Property and equipment are stated at cost. Depreciation and amortization is
provided on the straight-line method over the estimated useful lives of the
assets as follows:
<TABLE>
<S> <C>
Buildings and improvements.................................. 7-20 years
Broadcasting equipment and other............................ 5-7 years
</TABLE>
F-13
<PAGE> 21
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Leasehold improvements are amortized over the shorter of the lease term or
estimated useful lives of the assets. Amortization of assets recorded under
capital leases is included in depreciation expense.
Amortization of Intangible Assets
Broadcast licenses and goodwill are amortized using the straight-line
method over 40 years. Other intangible assets are being amortized using the
straight-line method over their estimated remaining useful lives from 1 to 10
years. Debt issuance costs and discounts are being amortized by the
straight-line method, which closely approximates the interest method, over the
life of the respective debt. Concert promotion goodwill was amortized using the
straight-line method over 15 years.
In 1996 the Company adopted FAS No. 121 "Accounting for the Impairment of
Long-Lived Assets". Under FAS No. 121, the carrying values of intangible assets
are reviewed if the facts and circumstances suggest that they may be impaired.
If this review indicates the intangible assets will not be recoverable as
determined based on the undiscounted cash flows of the Company over the
remaining amortization period, the Company's carrying value of the intangible
assets will be reduced to their estimated fair values, if lower than the
carrying value. The impact of this adoption had no effect on the consolidated
financial statements.
Payable to Former National Sales Representative
The Company is obligated to pay $23 million to a national advertising
representative company in 1998 in connection with switching its affiliations.
The amount is classified in the current liabilities section of the consolidated
balance sheets at December 31, 1997.
Revenue Recognition
The Company's primary source of revenue is the sale of airtime to
advertisers. Revenue from the sale of airtime is recorded when the
advertisements are broadcast.
Barter Transactions
The Company barters unsold advertising time for products and services. Such
transactions are recorded at the estimated fair value of the products or
services received or used. Barter revenue is recorded when commercials are
broadcast and related expenses are recorded when the product or service is
received or used. For the years ended December 31, 1997, 1996 and 1995, the
Company recorded barter revenue of $11,995,000, $8,029,000 and $4,961,000
respectively, and expenses of $11,281,000, $7,476,000 and $4,811,000
respectively.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Local Marketing Agreements/Joint Sales Agreements
From time to time, the Company enters into LMAs and JSAs with respect to
radio stations owned by third parties including radio stations which it intends
to acquire. Terms of the agreements generally require the Company to pay a
monthly fee in exchange for the right to provide station programming and sell
related advertising time in the case of an LMA or sell advertising in the case
of a JSA. The agreements terminate upon the acquisition of the stations. It is
the Company's policy to expense the fees as incurred as a component of operating
income (loss). The Company accounts for payments received pursuant to LMAs of
owned
F-14
<PAGE> 22
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
stations as net revenue to the extent that the payment received represents a
reimbursement of the Company's ownership costs.
Advertising Costs
Advertising costs are expensed as incurred and approximated $9,789,000,
$5,068,000 and $3,336,000 in 1997, 1996 and 1995, respectively.
Concentration of Credit Risk
The Company's revenue and accounts receivable primarily relate to the sale
of advertising within the radio stations' broadcast areas. Credit is extended
based on an evaluation of a customer's financial condition, and generally
collateral is not required. Credit losses are provided for in the financial
statements and consistently have been within management's expectations.
New Accounting Pronouncement
The Company adopted SFAS No. 130 "Reporting Comprehensive Income" during
the first quarter of 1998. The Company has no items of other comprehensive
income as described in SFAS No. 130. Therefore, net income is equal to
comprehensive income for all periods presented.
Reclassification
Certain amounts in 1995 and 1996 have been reclassified to conform to the
1997 presentation.
Interim Financial Information
Information as of March 31, 1998 and for the three months ended March 31,
1998 and 1997 is unaudited. The accompanying unaudited consolidated financial
statements have been prepared in accordance with generally accepted accounting
principles for interim financial information and Rule 10-01 of Regulation S-X.
Accordingly, they do not include all information and footnotes required by
generally accepted accounting principles for complete financial statements. In
the opinion of management, the unaudited interim financial statements contain
all adjustments, consisting of normal recurring accruals, necessary for a fair
presentation of the financial position, results of operations and cash flows of
the Company, for the periods presented. The results of operations for the three
month period are not necessarily indicative of the results of operations for the
full year.
NOTE 5 -- DEBT AND SUBORDINATED NOTES
Debt consists of the following at December 31, 1997 and 1996 (in
thousands):
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Senior subordinated notes................................... $450,566 $450,566
Senior credit facility...................................... 313,000 30,000
Other....................................................... 909 540
-------- --------
764,475 481,106
Less: current portion....................................... (509) (231)
-------- --------
$763,966 $480,875
======== ========
</TABLE>
F-15
<PAGE> 23
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The aggregate contractual maturities of long-term debt for the years ending
December 31 are as follows: 1998 -- $509,000; 1999 -- $200,000;
2000 -- $766,000; 2001 -- $57,000,000; 2002 -- $72,000,000;
thereafter -- $634,000,000.
In May 1996, the Company completed the placement of $450.0 million in
aggregate principal amount of its 10.75% Senior Subordinated Notes due 2006 (the
"Note Offering"). Interest is payable semi-annually on May 15 and November 15.
The notes are unsecured obligations of the Company and are subordinate to all
senior debt of the Company. The Company incurred issuance costs totaling $15.3
million related to the Note Offering which were recorded as deferred financing
costs. In addition to the Note Offering, the Company sold in a private placement
2,990,000 shares of Series D Preferred Stock aggregating $149.5 million in
liquidation preference (the "Preferred Stock Offering").
Concurrently with the closings of the Note Offering and the Preferred Stock
Offering, the Company completed a tender offer (the "Tender Offer") and related
consent solicitation with respect to its 11.375% Senior Subordinated Notes due
2000 (the "Old Notes"). SFX repurchased approximately $79.4 million in principal
amount of the $80.0 million in principal amount of the Old Notes outstanding in
the Tender Offer. The Company also entered into a supplemental indenture
amending the terms of the indenture pursuant to which the remaining Old Notes
were issued.
In March 1995, the Company entered into a $50.0 million senior credit
facility (the "Old Credit Facility") pursuant to which the Company made
borrowings to finance the Charlotte Acquisition and certain working capital
needs. On May 31, 1996 all amounts outstanding under the Old Credit Facility
were repaid with a portion of the proceeds of the Note Offering and the
Preferred Stock Offering.
In connection with the repurchase of the Old Notes and the repayment of the
Old Credit Facility, the Company recorded an extraordinary loss on debt
retirement of approximately $15.2 million to reflect the cost of prepayment
premiums and the write-off of debt issuance costs.
On November 22, 1996, the Company entered into a new credit facility, as
amended (the "New Credit Agreement"), a senior revolving credit facility
providing for borrowings of up to $400 million. Borrowings under the New Credit
Agreement may be used to finance permitted acquisitions, for working capital and
general corporate purposes, and for letters of credit up to $20.0 million. The
credit facility will be reduced by $18 million on a quarterly basis commencing
March 31, 2000 to December 31, 2004 and two final payments of $20 million will
be paid on March 31, 2005 and June 30, 2005. Interest on the funds borrowed
under the New Credit Agreement is based on a floating rate selected by the
Company of either (i) the higher of (a) the Bank of New York's prime rate and
(b) the federal funds rate plus 0.5%, plus a margin which varies from 0.25% to
1.5%, based on the Company's then-current leverage ratio, or (ii) the LIBOR rate
plus a margin which varies from 1.875% to 2.75%, based on the Company's
then-current leverage ratio. The Company must prepay certain outstanding
borrowings in advance of their scheduled due dates in certain circumstances,
including but not limited to achieving certain cash flow levels or receiving
certain proceeds from asset disposition as defined. The Company must also pay
annual commitment fees of 0.5% of the unutilized total commitments under the New
Credit Agreement. The Company's obligations under the New Credit Agreement are
secured by substantially all of its assets, including property, stock of
subsidiaries and accounts receivable, and are guaranteed by the Company's
subsidiaries. At December 31, 1997, the weighted average interest rate was
8.19%.
The New Credit Agreement and the indentures related to the Company's
subordinated notes contain covenants that impose certain restrictions on the
Company, such as total leverage, pro forma debt service and pro forma interest
expense ratios.
The fair value of the Company's senior subordinated notes was $493,313,000
at December 31, 1997 based upon the quoted market price. The book value of the
Company's senior credit facility and other debt approximates fair value, which
was estimated using discounted cash flow analysis based on the Company's
incremental borrowing rate for similar types of borrowing arrangements.
F-16
<PAGE> 24
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's 10.75% senior subordinated notes and 11.375% senior
subordinated notes are guaranteed by every direct and indirect subsidiary of the
Company. There are no non-guarantor subsidiaries. The guarantees by the
guarantor subsidiaries are full, unconditional, and joint and several. All of
the guarantor subsidiaries are wholly-owned. The Company is a holding company
with no assets, liabilities or operations other than its investment in its
subsidiaries. Separate financial statements of each guarantor have not been
included as management has determined that they are not material to investors.
NOTE 6 -- REDEEMABLE PREFERRED STOCK
Preferred stock consists of the following at December 31, 1997 and 1996
(dollars in thousands):
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Preferred Stock of the Company, $.01 par value, 10,012,000
shares authorized:
Series B Redeemable, 0 and 1,000 shares issued and
outstanding in 1997 and 1996, respectively................ $ -- $ 917
Series C Redeemable, 2,000 shares issued and outstanding in
1997 and 1996, includes accreted dividends of $197 in 1997
and $108 in 1996.......................................... 1,725 1,636
Series D Cumulative Convertible Exchangeable Preferred
Stock, 2,990,000 shares issued and outstanding, includes
accreted issuance costs of $878 in 1997................... 144,324 143,446
Series E Cumulative Exchangeable Preferred Stock, 2,250,000
shares issued and outstanding, net of issuance costs,
includes accreted issuance costs of $951 in 1997.......... 215,947 --
-------- --------
$361,996 $145,999
======== ========
</TABLE>
The Series B Redeemable Preferred Stock which was non-voting and not
entitled to receive dividends was redeemed in October 1997 at the liquidation
value of $1,000 per share.
The shares of Series C Redeemable Preferred Stock receive cumulative
dividends equal to 6% per annum paid by the Company in arrears on a quarterly
basis. The shares are non-voting and are redeemable by the Company after
September 15, 1998 or by the holder after September 15, 2000, at the liquidation
value of $1,000 per share. The Series C Redeemable Preferred Stock ranks senior
to other preferred stock and to the Company's common stock as to dividends and
liquidation rights.
The shares of Series D Cumulative Convertible Exchangeable Preferred Stock
(the "Series D Preferred Stock") receive cumulative dividends equal to 6 1/2%
per annum ($0.8125 per share) which are paid by the Company on a quarterly
basis. The shares of Series D Preferred Stock are redeemable at the option of
the Company on or after June 1, 1999, in whole or in part, at redemption prices
ranging from 104.5% in 1999 to 100.0% in 2006, plus accrued and unpaid dividends
to the redemption date. The Series D Preferred Stock is not subject to any
scheduled mandatory redemption prior to its maturity. The Series D Preferred
Stock will mature on May 31, 2007.
The Series D Preferred Stock is convertible at the option of the holder
into shares of Class A Common Stock of the Company at any time prior to maturity
at a conversion price of $45.51 per share (equivalent to a conversion rate of
1.0987 shares per $50 in Liquidation Preference of Series D Preferred Stock),
subject to adjustment in certain events. The Series D Preferred Stock is
exchangeable in full but not in part, at the Company's option on any dividend
payment date, for the Company's 6 1/2% Convertible Subordinated Exchange Notes
due 2007.
The Series D Preferred Stock ranks senior to the Company's common stock as
to dividends and liquidation rights.
The shares of Series E Cumulative Exchangeable Preferred Stock (the "Series
E Preferred Stock") receive cumulative dividends equal to the rate of 12 5/8%
per annum which are paid by the Company on
F-17
<PAGE> 25
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
January 15 and July 15 of each year. Dividends may be paid, at the Company's
option, through January 15, 2002, in cash or additional shares of Series E
Preferred Stock. Subject to certain condition, the shares of the Series E
Preferred Stock are exchangeable in whole or in part on a pro rata basis, at the
option of the Company, on any dividend payment date, for the Company's 12 5/8%
Senior Subordinated Exchangeable Debentures due 2006. The Company is required,
subject to certain conditions, to redeem all of the Series E Preferred Stock
outstanding on October 31, 2006. The semi-annual dividend payable on January 15,
1998 was paid in additional shares of preferred stock.
NOTE 7 -- SHAREHOLDER'S EQUITY
Common Stock
The holders of Class A Common Stock are entitled to one vote per share and
the holders of Class B Common Stock are entitled to ten votes per share on all
matters to be voted on by stockholders, except (i) for the election of
directors, (ii) with respect to any "going private" transaction between the
Company and its Chairman, or any of his affiliates, and (iii) as otherwise
provided by law. The holders of Class A and Class B Common Stock share ratably
in all dividends and other distributions. As of December 31, 1997, 1,047,937
shares of Class A Common Stock, authorized but unissued, are reserved for
conversion of the Class B Common Stock. Shares of the Company's Class B Common
Stock convert on a share per share basis into the same number of Class A Common
Stock under certain circumstances.
In December 1995, 16,784 shares of non-voting Class C Common Stock were
repurchased and retired by the Company for $459,000. In May 1996, 26,318 shares
of Class A common Stock and 143,874 shares of Class B Common Stock were
repurchased from the Company's former President. In July 1997, the Company
repurchased 3,667 shares of Class A Common for $111,000. In addition, in
September 1997, the Company repurchased 460 shares of Class A Common Stock for
$19,000.
In July 1995, the Company completed an offering of 1,725,000 shares of its
Class A Common Stock for $24.50 per share. The net proceeds of the offering were
$39,166,000 after underwriting discounts, commissions and other costs of the
offering. The net proceeds were utilized to repay senior indebtedness of
$21,500,000 and to fund the Dallas Acquisition and a portion of the Charlotte
Acquisition.
Securities Issued in MMR Merger
The following MMR warrants and options issued and outstanding at the date
of the merger were assumed by the Company and are now convertible into SFX
shares:
<TABLE>
<CAPTION>
NUMBER MMR NUMBER SFX
OF MMR EXERCISE OF SFX EXERCISE
SECURITIES SHARES PRICE SECURITIES PRICE
---------- ------- ------------ ---------- -------------
<S> <C> <C> <C> <C>
Underwriters Warrants exercisable
through July 22, 1998................ 125,000 $9.10 37,288 $30.51
Class B Warrants exercisable through
March 22, 1999....................... 749,460 $11.50 217,162 $38.55
Unit Purchase Options exercisable
through March 22, 1999 (entitle the
holder to purchase one share of MMR
Common Stock, one MMR Class A Warrant
and one MMR Class B Warrant)......... 160,000 $7.75-$11.50 47,728 $25.98-$38.55
Stock options exercisable at various
dates through November 22, 2006...... 305,000 $5.00-$10.50 90,982 $16.76-$35.20
Warrants issued to Huff Alternative
Income Fund, L.P. exercisable through
March 31, 2005....................... 728,000 $7.75 223,564 $25.98
Sillerman Options...................... 10,000 $2.50 2,983 $8.38
</TABLE>
F-18
<PAGE> 26
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The former MMR warrants and options are exercisable for that number of
shares of the Company's Class A Common Stock equal to the product of the number
of MMR shares covered by the security times 0.2983 and the per share exercise
price for the share of the Company's Class A Common Stock issuable upon the
exercise of each warrant and option is equal the quotient determined by dividing
the exercise price per share of the MMR shares specified for such security by
0.2983.
During 1997, certain holders of the former MMR securities exercised 95,874,
215,344, 153,445, and 142,001 of Underwriters Warrants, Class B Warrants, Unit
Purchase Options and Stock Options, respectively, of the securities describe
above. The warrants issued to the Huff Alternative Income Fund, L.P. were
exercised through election of cashless exercise provisions whereby the Company
issued 165,023 shares of the Company's Class A Common Stock.
Stock Options
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to employees" ("APB25") and related
interpretations in accounting for its employee stock options, as opposed to the
fair value accounting provided for under FAS Statement No. 123, "Accounting for
Stock-Based Compensation."
Under stock option plans adopted annually since 1993, stock options to
acquire Class A Common Stock have been granted to certain officers, key
employees and other key individuals who perform services for the Company.
Options granted under these plans are generally granted at option prices equal
to the fair market value of the Class A Common Stock on the date of grant. As
such, under APB25, no expense is recorded in the statement of operations. Terms
of the options, determined by the Company, provided that the maximum term of
each options shall not exceed ten years and the options become fully exercisable
within five years of continued employment with the exception of certain options
granted to executives which were fully vested upon issuance.
In connection with the Merger, the Board has approved that all outstanding
options will vest immediately upon the date of such Merger.
At December 31, 1997, options outstanding had an average exercise price of
$22.04 and expiration dates ranging from December 1, 2003 to April 15, 2007. The
table below does not include the MMR options described above.
<TABLE>
<CAPTION>
1997 1996 1995
------------- ------------- --------------
<S> <C> <C> <C>
Options outstanding at beginning of
year................................. 910,000 748,000 500,000
Option price........................... $13.00-$33.75 $13.00-$21.25 $13.00-$13.50
Options granted........................ 420,000 349,000 248,000
Options price.......................... $28.00 $27.25-$33.75 $21.25
Options exercised...................... 726,050 -- --
Option price........................... $13.00-$33.75 -- --
Options repurchased.................... -- 187,000 --
Option price........................... -- $13.00-$21.25
Options expired or canceled............ -- -- --
Options outstanding at end of year..... 603,950 910,000 748,000
Option price........................... $13.00-$28.75 $13.00-$33.75 $13.00-$21.25
Options exercisable at end of year..... 439,750 461,200 153,000
</TABLE>
F-19
<PAGE> 27
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 8 -- INCOME TAXES
The provision for income taxes for the years ended December 31, 1997, 1996
and 1995 is summarized in thousands as follows:
<TABLE>
<CAPTION>
1997 1996 1995
----- ------ ------
<S> <C> <C> <C>
Current
Federal................................................. $ -- $ -- $ --
State................................................... 990 1,190 --
----- ------ ------
990 1,190 --
----- ------ ------
Deferred
Federal................................................. -- -- --
State................................................... (180) (710) --
----- ------ ------
(180) (710) --
----- ------ ------
$ 810 $ 480 $ --
===== ====== ======
</TABLE>
The Company files a consolidated tax return for federal income tax
purposes. As a result of current losses, no federal tax provision was recorded
for the year ended December 31, 1997 and 1996. The current income tax expense
recorded during 1997 and 1996 is a result of current state and local income
taxes in certain states where subsidiaries file separate tax returns. Deferred
state tax benefit was recognized in 1997 and 1996 attributable to the
disposition of stations acquired in transactions in which associated deferred
tax liabilities were recorded in purchase accounting. As a result of current
losses and the deferred benefit associated with the losses, no current or
deferred expense or benefit was recorded for the year ended December 31, 1995.
At December 31, 1997, the Company had total net operating loss
carryforwards of approximately $69,000,000 that will expire from 2003 through
2012, including net operating losses of acquired subsidiaries. Due to ownership
changes related to the acquisition of subsidiaries, the utilization of
approximately $15,300,000 of which losses is subject to various limitations. The
future use of remaining net operating loss carryforwards may be impacted and
subject to additional limitations as a result of the Merger.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amount of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. The
F-20
<PAGE> 28
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
significant components of the Company's deferred tax assets and liabilities as
of December 31, 1997 and 1996 are as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Deferred Tax Assets:
Accounts receivable......................................... $ 860 $ 563
Net operating loss carryforwards............................ 23,965 12,044
Management service contract................................. 2,356 2,128
Other reserves.............................................. 113 646
National sales representative contract settlement........... 8,740 --
Accrued bonuses and other compensation...................... 1,563 997
--------- ---------
Total deferred tax assets................................... 37,597 16,378
Valuation allowance......................................... (21,876) (5,623)
--------- ---------
Net Deferred Tax Assets................................... 15,721 10,755
Deferred Tax Liabilities:
Property, plant and equipment............................... (684) (372)
Intangible assets........................................... (117,718) (101,658)
Other....................................................... -- (77)
--------- ---------
Total Deferred Tax Liabilities............................ (118,402) (102,107)
--------- ---------
Net Deferred Tax Liabilities.............................. $(102,681) $ (91,352)
========= =========
</TABLE>
The acquisition of radio station WWYZ resulted in the recognition of
deferred tax liabilities of approximately $10 million under the purchase method
of accounting. The amounts were based upon the excess of the financial statement
basis over the tax basis in assets, primarily intangibles.
The 1997, 1996 and 1995 effective tax rate varied from the statutory
federal income tax rate as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Income taxes at the statutory rate................. $ (8,488) $(16,924) $ (1,495)
Effect of non-recurring and unusual charges........ 6,781 6,875 --
Valuation allowance................................ 13,977 9,859 1,434
Effect of nondeductible amortization of
intangibles...................................... 295 264 198
Nonqualified stock options......................... (12,380) -- --
State and local income taxes (net of federal
benefit)......................................... 535 317 (145)
Other.............................................. 90 89 8
-------- -------- --------
Total.................................... $ 810 $ 480 $ --
======== ======== ========
</TABLE>
NOTE 9 -- RELATED PARTY TRANSACTIONS
Prior to April 1996, SCMC, where Robert F.X. Sillerman, the Company's
Executive Chairman, serves as Chairman of the Board of Directors and Chief
Executive Officer, had been engaged by the Company from time to time for
advisory services with respect to specific transactions. In April 1996, the
Company and SCMC entered into the SCMC Termination Agreement, pursuant to which
SCMC assigned to the Company its rights to provide services to, and receive fees
payable by each of, MMR and Triathlon in respect of such consulting and
marketing services to be performed on behalf of such companies, except for fees
related to certain transactions pending at the date of such agreement. In
addition, the Company and SCMC terminated the arrangement pursuant to which SCMC
performed financial consulting services for the Company. Upon
F-21
<PAGE> 29
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
consummation of the MMR Merger, SCMC's agreement with MMR was terminated. Prior
to consummation of the MMR Merger, MMR paid an annual fee of $500,000 to SCMC
and Triathlon paid SCMC an annual fee of $300,000 (which increased to $500,000
effective January 1, 1997). In addition, Triathlon has agreed to advance to SCMC
an amount of $500,000 per year in connection with transaction-related services
to be rendered by SCMC. However, if the agreement between SCMC and Triathlon is
terminated or if an unaffiliated person acquires a majority of the capital stock
of Triathlon the unearned fees must be repaid. Pursuant to the SCMC Termination
Agreement, the Company has agreed to continue to provide consulting and
marketing services to Triathlon until the expiration of their agreement on June
1, 2005, and not to perform any consulting or investment banking services for
any person or entity other than Triathlon in the radio broadcasting industry or
in any business which uses technology for the audio transmission of information
or entertainment. In consideration of the foregoing agreements, the Company
issued to SCMC warrants to purchase up to 600,000 shares of Class A Common Stock
at an exercise price, subject to adjustment, of $33.75 (the market price at the
time the financial consulting arrangement was terminated). The Company also
forgave a $2.0 million loan made by the Company to SCMC, plus accrued and unpaid
interest thereon. Pursuant to such agreement, the Chairman has agreed with the
Company that he will supervise, subject to the direction of the Board of
Directors, the performance of the financial consulting and other services
previously performed by SCMC for the Company. During 1996, the Company received
fees of $292,000 from MMR and $511,000 from Triathlon. During 1997, the Company
received fees of $1,794,000 from Triathlon. In connection with this agreement,
the Company had a $44,000 receivable from Triathlon at December 31, 1997.
Pursuant to the Merger, the Company will transfer the Triathlon consulting
contract to SFX Entertainment. Triathlon has previously announced that it is
exploring ways of maximizing stockholder value, including possible sale to a
third party. If Triathlon were acquired by a third party, the agreement might
not continue for the remainder of its term.
In 1996, the Company paid to SCMC advisory fees of $4.0 million in
connection with the Liberty Acquisition, the Prism Acquisition, the Greenville
Acquisition, the Jackson Acquisitions, the Greensboro Acquisition and the
Raleigh-Greensboro Acquisition. In addition, the Company paid SCMC, on behalf of
MMR, a non-refundable fee of $2.0 million for investment banking services
provided to MMR in connection with the MMR Merger.
No pending transactions, as described in Note 3, predate the SCMC
Termination Agreement, and therefore no fees are payable to SCMC.
Prior to June 1996, the Company held a non-recourse note receivable from
the Company's former President in the amount of $2,000,000 which was secured by
133,333 shares of Class B Common Stock. The note bore interest at 6% per annum.
Interest income of $60,000 and $120,000 was accrued in 1996 and 1995 on the
loan, respectively. The loan and interest accrued were forgiven in June 1996
pursuant to an agreement with the former President and are included in
non-recurring and unusual charges.
In January 1995, the Company paid a $1,000,000 fee to SCMC in connection
with the transfer of shares of the Company's Class C Common Stock.
During the last quarter of 1996, the Company consolidated all of its
corporate office functions in New York. Prior to such time, the Company had an
agreement with the Chairman related to the maintenance of the Company's New York
Office whereby the Company reimbursed SCMC for certain office expenses and
salaries for certain employees of SCMC who provided services on behalf of the
Company. In addition certain of the Company's employees performed certain
services for other entities affiliated with SCMC. In connection with SCMC
Termination Agreement and the consolidation of the Company's Corporate Office in
New York, SCMC employees who provided services on behalf of the Company became
employees of the Company. Total reimbursements paid to SCMC for office expenses
and salaries totaled approximately $1,082,000 and $530,000 for the years ended
December 31, 1996 and 1995. The reimbursements paid to SCMC in 1996 included
$292,000 and $261,000 of fees paid by MMR and Triathlon, respectively, directly
to SCMC
F-22
<PAGE> 30
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
following the effective date of the SCMC Termination Agreement. The timing of
these payments during the year were such that the Company had advanced amounts
to SCMC of up to $230,000 during the period. As of December 31, 1996 and 1997,
there are no amounts due to or from SCMC.
The transactions above were not negotiated on an arms-length basis.
Accordingly, each transaction was approved by the Company's Board of Directors,
including the Company's independent directors, in accordance with the provisions
relating to affiliate transactions in the Company's by-laws, bank agreements and
Indenture, which provisions require a determination as to the fairness of the
transactions to the Company.
The Company's Executive Vice President, General Counsel and Director is Of
Counsel to the law firm of Baker & McKenzie. Baker & McKenzie serves as counsel
to the Company in certain matters. Baker & McKenzie compensates the executive
based, in part, on the fees it receives from providing legal services to the
Company and other clients originated by the executive. The Company paid Baker &
McKenzie $6,813,000, $4,886,000 and $793,000 for legal services during 1997,
1996 and 1995, respectively. During February 1998, the Company was reimbursed by
SFX Entertainment for approximately $2,948,000 of legal fees related to concert
acquisitions and the Spin-Off. As of December 31, 1997 and 1996, the Company
accrued Baker & McKenzie legal fees of approximately $4,782,000 and $1,550,000,
respectively.
NOTE 10 -- NON-RECURRING AND UNUSUAL CHARGES, INCLUDING ADJUSTMENTS TO BROADCAST
RIGHTS AGREEMENT
Audited:
The Company recorded non-recurring and unusual charges related to the
Merger of SFX Broadcasting and the Spin-Off of SFX Entertainment of $20,174,000
in 1997 which consisted primarily of (i) $12,140,000 related to bonuses paid to
officers of the Company (ii) a write-off of a $2,500,000 loan made to the
Company's Executive Chairman (iii) $1,713,000 relating to an increase in value
of certain Stock Appreciation Rights and (iv) $3,821,000 of other expenses,
primarily legal, accounting and regulatory fees.
The Company recorded non-recurring and unusual charges of $28,994,000 in
1996 which consisted primarily of payments in excess of the fair value of stock
repurchased totaling $12,461,000 to the company's former President and the
reserve by the Company of $2,330,000 relating to the loan and accrued interest
to the Company's former President, $5,586,000 related to the SCMC Termination
Agreement (Note 9), $4,575,000 for the repurchase of options and rights to
receive options held by the Chief Operating Officer, and a charge of $1,600,000
related to the termination of the Company's contractual four-year broadcast
rights of Texas Rangers baseball and an adjustment in the value of the contract
for the 1996 season. In 1995, the Company recorded a $5 million charge related
to the write down in value of the Company's Texas Rangers broadcast rights.
Unaudited:
In the first quarter of 1998, the Company recorded non-recurring and
unusual charges of $25.0 million which consisted primarily of (i) $4.2 million
of compensation expense related to options issued, (ii) $550,000 relating to the
settlement of a lawsuit, (iii) $489,000 relating to the increase in value of
certain SARs, (iv) $16.6 million relating to the consent solicitations from the
holders of its Senior Subordinated Notes due 2006 and the holders of its 12 5/8%
Series E Preferred Stock in connection with the Spin-Off and (v) $3.2 million of
expenses, primarily legal, accounting and regulatory fees associated with the
pending Merger and the consent solicitations in connection with the Spin-Off.
NOTE 11 -- COMMITMENTS AND CONTINGENCIES
The Company has entered into various operating leases, broadcast rights
agreements and employment agreements. Total rent expense was $5,403,000,
$2,903,000 and $1,506,000 for the years ending December 31, 1997, 1996 and 1995,
respectively. The Company has entered into employment agreements with certain
F-23
<PAGE> 31
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
officers and other key employees. Expenses under the contracts approximated
$19,748,000 for the year ended December 31, 1997. Future minimum payments in the
aggregate for all noncancelable operating leases including broadcast rights
agreements and employment agreements with initial terms of one year or more
consist of the following at December 31, 1997 (in thousands):
<TABLE>
<CAPTION>
SFX BROADCASTING, INC. SFX ENTERTAINMENT, INC.
---------------------- ------------------------
OPERATING EMPLOYMENT OPERATING EMPLOYMENT
LEASES AGREEMENTS LEASES AGREEMENTS
--------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
1998.............................................. $11,186 $18,090 $ 3,366 $1,900
1999.............................................. 7,232 12,394 3,823 1,864
2000.............................................. 6,373 5,638 1,648 1,624
2001.............................................. 4,084 2,133 1,666 1,534
2002.............................................. 2,913 1,471 1,678 300
2003 and thereafter............................... 7,725 1,159 14,117 --
------- ------- ------- ------
$39,513 $40,885 $26,298 $7,222
======= ======= ======= ======
</TABLE>
The future minimum payments pursuant to operating leases does not include
the New York offices as theses facilities will be transferred to SFX
Entertainment.
Future minimum payments in the aggregate for all noncancelable capital
leases with initial terms of one year or more consist of the following at
December 31, 1997 (in thousands)
<TABLE>
<CAPTION>
CAPITAL
LEASES
-------
<S> <C>
1998........................................................ $ 124
1999........................................................ 86
2000........................................................ 43
2001........................................................ 14
2002 and thereafter......................................... --
-----
Total minimum lease payments................................ 267
Less: amount representing interest.......................... (40)
-----
Present value of future minimum lease payments.............. 227
Less: current portion....................................... (101)
-----
Long-term capital lease obligations......................... $ 126
=====
</TABLE>
The Company is the subject of various claims and litigation principally in
the normal course of business. In the opinion of management, the ultimate
resolution of such matters will not have a material adverse impact on the
consolidated financial statements. SFX Entertainment has committed to certain
renovation and construction projects totaling $35.5 million.
NOTE 12 -- DEFINED CONTRIBUTION PLAN
The Company sponsors a 401(k) defined contribution plan in which most of
its employees were eligible to participate. The Plan presently provides for
discretionary employer contributions. The Company made no contributions in 1997,
1996 or 1995.
F-24
<PAGE> 32
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 13 -- SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
<TABLE>
<CAPTION>
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
Cash paid during the year for:
Interest................................................ $65,184 $30,898 $12,903
Income taxes............................................ $ 1,059 $ 81 $ --
</TABLE>
Supplemental schedule of noncash investing and financing activities:
Issuance of equity securities, including deferred equity security issuance, and
assumption of debt in connection with certain acquisitions (Note 3)
Agreements to pay future cash consideration in connection with certain
acquisitions (Note 3)
Exchange of radio stations (Note 3)
Issuance of warrants in connection with SCMC termination agreement (Note 9).
NOTE 14 -- SUBSEQUENT EVENTS
Radio Broadcasting. In January 1998, the Company sold one radio station
operating in Richmond, Virginia (the "Richmond Disposition") for $4.3 million.
Concert Promotion Acquisitions and Financing. In February and March 1998,
SFX Entertainment acquired the following live entertainment businesses which
were contributed to SFX Entertainment upon the Spin-Off.
PACE Entertainment Corporation ("PACE"), one of the largest diversified
producers and promoters of live entertainment in the United States, having what
SFX Entertainment believes to be the largest distribution network in the United
Sates in each of its music, theater and specialized motor sports businesses (the
"PACE Acquisition"), for total consideration of approximately $156,056,000. In
connection with the PACE Acquisition, SFX Entertainment acquired 100% of
Pavilion Partners, a partnership that owns interest in 10 venues ("Pavilion"),
through the PACE Acquisition and directly from PACE's various partners for
$90,627,000. The Company has guaranteed the performance of SFX Entertainment's
obligation to PACE until PACE is issued the SFX Entertainment stock it is
entitled to under the acquisition agreement.
The Contemporary Group ("Contemporary"), a fully-integrated live
entertainment and special event promoter and producer, venue owner and operator
and consumer marketer, for total consideration of approximately $101,402,000.
The Network Magazine Group ("Network Magazine"), a publisher of trade
magazines for the radio broadcasting industry, and SJS Entertainment ("SJS"), an
independent creator, producer and distributor of music-related radio
programming, services and research which it exchanges with radio broadcasters
for commercial air-time sold, in turn, to national network advertisers (the
"Network Acquisition"), for total consideration of approximately $66,784,000.
BG Presents ("BGP"), one of the oldest promoters of, and owner-operators of
venues for, live entertainment in the United States, and a leading promoter in
the San Francisco Bay area (the "BGP Acquisition"), for total consideration of
approximately $80,327,000.
Concert/Southern Promotions ("Concert/Southern"), a promoter of live music
events in the Atlanta, Georgia metropolitan area (the "Concert/Southern
Acquisition"), for total consideration of approximately $16,600,000.
F-25
<PAGE> 33
SFX BROADCASTING, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Westbury Music Fair, a theater located in Westbury, New York for aggregate
consideration of $3.0 million in cash and an agreement to issue 75,019 shares of
Class A Common Stock of SFX Entertainment.
On February 11, 1998, SFX Entertainment completed the private placement of
$350.0 million of 9 1/8% Senior Subordinated Notes (the "Notes") due 2008.
Interest is payable on the Notes on February 1 and August 1 of each year.
On February 26, 1998, SFX Entertainment executed a Credit and Guarantee
Agreement (the "Credit Agreement") which established a $300.0 million senior
secured credit facility comprised of (i) a $150.0 million eight-year term loan
(the "Term Loan") and (ii) a $150.0 million seven-year reducing revolving credit
facility. Borrowings under the Credit Agreement are secured by substantially all
of the assets of SFX Entertainment, including a pledge of the outstanding stock
of substantially all of its subsidiaries and guaranteed by all of SFX
Entertainment's subsidiaries. On February 27, 1998, SFX Entertainment borrowed
$150.0 million under the Term Loan. Together with the proceeds from the Notes,
the proceeds from the Term Loan were used to finance the 1998 acquisitions
discussed above.
Consent Solicitation. To facilitate the Spin-Off, SFX Entertainment's 1998
acquisitions and its financing thereof, the Company sought and obtained consents
from the holders of its Old Notes and the holders of its Senior Subordinate
Notes due 2006 and the holders of its 12 5/8% Series E Preferred Stock. In
connection with these consents, the Company modified certain covenants.
Management anticipates that the Company will be in compliance with these
covenants in the foreseeable future. Fees and expenses of approximately $18.0
million were incurred by the Company in connection with the consent
solicitations and were reimbursed by SFX Entertainment with the proceeds of the
SFX Entertainment Notes. Such charges are included in non-recurring and unusual
charges, including adjustments to broadcast rights agreement.
Legal Proceedings
On August 29, 1997, two lawsuits were commenced against the Company and its
directors which allege that the consideration to be paid as a result of the
Merger to the holders of the Company's Class A Common Stock is unfair and that
the individual defendants have breached their fiduciary duties.
On March 16, 1998, all of the parties entered into a Memorandum of
Understanding, pursuant to which they have reached an agreement providing for a
settlement of the action (the "Settlement"). The Settlement provides for the
Company to pay plaintiffs' counsel an aggregate of $950,000, including all fees
and expenses as approved by the court. The Company anticipates that a
significant portion of such payment will be funded by the Company's insurance.
The Settlement is conditioned on the (a) consummation of the Merger, (b)
completion of the confirmatory discovery and (iii) approval of the court.
F-26
<PAGE> 34
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
2.1.1 Agreement and Plan of Merger, dated as of August 24, 1997 (the
"SFX Merger Agreement"), by and among SBI Holding Corporation,
SBI Radio Acquisition Corporation and SFX. (1)
2.1.2 Amendment No. 1 to SFX Merger Agreement. (2)
2.1.3 Amendment No. 2 to SFX Merger Agreement. (3)
10.1 Credit Agreement, dated as of May 29, 1998, among Capstar
Radio Broadcasting Partners, Inc., as the borrower, the
Company , Capstar Broadcasting Partners, Inc. and the
financial institutions party thereto. The Credit Agreement
filed herewith excludes the exhibits and schedules thereto.
The contents of such exhibits and schedules are described in
the Credit Agreement.*
10.2 Letter Agreement, dated February 20, 1998, between Chancellor
Media and the Company (the "Chancellor Letter Agreement"). (4)
10.3 Amendment to Chancellor Letter Agreement. (4)
10.4 Capstar Broadcasting Corporation Pledge Agreement, dated May
29, 1998, between the Company and Chancellor Media Corporation
of Los Angeles.*
10.5 Note, dated May 29, 1998, by the Company due to Chancellor
Media Corporation of Los Angeles.*
10.6 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.7 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.8 Amended and Restated Warrant, dated April 1, 1998, issued to
R. Steven Hicks.*
10.9 Warrant, dated April 1, 1998, issued to R. Steven Hicks.*
10.10 Warrant, dated April 1, 1998, issued to R. Steven Hicks.*
10.11 Warrant, dated April 1, 1998, issued to Paul D. Stone.*
10.12 Warrant, dated April 1, 1998, issued to William S. Banowksy,
Jr.*
10.13 Asset Exchange Agreement, dated as of May 29, 1998, among
Chancellor Media Corporation of Los Angeles, Chancellor Media
Licensee Company, SFX Texas Limited Partnership and SFXTX
Limited Partnership.*
</TABLE>
- -------------
* Filed herewith.
(1) Incorporated by reference to SFX's Current Report on Form 8-K, dated
August 26, 1997, File No. 000-22486.
(2) Incorporated by reference to SFX's Annual Report on Form 10-K for the
year ended December 31, 1997, File No. 000-22486.
<PAGE> 35
(3) Incorporated by reference to SFX's Current Report on Form 8-K dated
February 17, 1998, File No. 000-22486.
(4) Incorporated by reference to the Company's Registration Statement on
Form S-1, dated May 19, 1998, File No. 333-48819.
<PAGE> 1
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
among
CAPSTAR BROADCASTING CORPORATION,
CAPSTAR BROADCASTING PARTNERS, INC.,
CAPSTAR RADIO BROADCASTING PARTNERS, INC.,
VARIOUS BANKS,
NATIONSBANC MONTGOMERY SECURITIES LLC, AS SYNDICATION AGENT,
SALOMON BROTHERS HOLDING COMPANY INC
and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS DOCUMENTATION AGENTS,
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
__________________________________
Dated as of May 29, 1998
__________________________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.04 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.14 Additional Term Loan Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Letter of Credit Requests; Notices of Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.03 Letter of Credit Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.05 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3. Commitment Commission; Fees; Reductions of Commitment . . . . . . . . . . . . . . . . . . . . . . . 19
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving Loan Commitment . . . . . . . . . . 21
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5A. Conditions Precedent to Initial Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5A.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
5A.02 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5A.03 Corporate Documents; Proceedings; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5A.04 Shareholders' Agreements; Management Agreements; Employment Agreements; Tax Sharing Agreements . . . 34
5A.05 Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5A.06 Consummation of the Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5A.07 Refinancings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5A.08 Subsidiary Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5A.09 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5A.10 Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5A.11 Mortgages; Title Insurance; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5A.12 Consent Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5A.13 Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5A.14 Solvency Letter; Environmental Analyses; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 38
5A.15 Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5A.16 Pro Forma Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5A.17 Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5A.18 CCI Intercompany Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5B. Conditions Precedent to A Term Loans on the Second A Term Loan Borrowing Date . . . . . . . . . . . 39
5B.01 CCI Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6. Conditions Precedent to All Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.01 No Default; Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.02 Notice of Borrowing; Letter of Credit Request . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7. Representations, Warranties and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.01 Corporate or Partnership Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.02 Corporate or Partnership Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. . . . . . . . 42
7.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.11 The Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.12 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.15 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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7.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.18 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.19 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.20 Patents, Licenses, Franchises and Formulas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.21 Special Purpose Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.22 Business of Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.23 FCC Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.24 Subordinated Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.25 Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.26 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.27 Year 2000 Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(a) Monthly Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(b) Quarterly Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(c) Annual Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(d) Management Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(e) Budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(f) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(g) Notice of Default or Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(h) Other Reports and Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(i) Annual Meetings with Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(j) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(k) Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
8.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.06 Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.08 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.09 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.11 Dividends on Exchangeable Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.12 Maintenance of Separateness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.13 Additional Security; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.14 CCI Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . . . . . . . . . . . . . . . . . . . 66
9.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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9.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.07 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9.08 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
9.09 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
9.10 Limitation on Modifications of Certificate of Incorporation, Partnership Agreement, Limited Liability
Company Agreement, By-Laws and Certain Other Agreements; Limitations of Prepayments and Modifications
of Indebtedness; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9.11 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 81
9.12 Limitation on Issuance of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
9.13 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.14 Limitation on Creation of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.15 No Other Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.04 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.07 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.08 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.10 Change of Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
10.11 Non-Controlled Entity Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11. Definitions and Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 12. The Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
12.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
12.03 Lack of Reliance on the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
12.04 Certain Rights of the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.07 The Administrative Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . 122
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
12.09 Resignation by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
13.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
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13.02 Right of Setoff; Collateral Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
13.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
13.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 129
13.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
13.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
13.12 Amendment or Waiver; etc., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
13.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.15 Limitation on Additional Amounts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
13.17 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
13.18 Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
SECTION 14. Parents Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
14.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
14.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
14.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
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SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Existing Letters of Credit
SCHEDULE V Subsidiaries
SCHEDULE VI FCC Authorizations
SCHEDULE VII Insurance
SCHEDULE VIII Existing Liens
SCHEDULE IX Existing Indebtedness
SCHEDULE X Existing Investments
SCHEDULE XI Radio Stations Assets
SCHEDULE XII Indebtedness to be Refinanced
SCHEDULE XIII Regions
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of A Term Note
EXHIBIT B-2 Form of B Term Note
EXHIBIT B-3 Form of Revolving Note
EXHIBIT C Form of Additional Term Loan Assumption Agreement
EXHIBIT D Form of Letter of Credit Request
EXHIBIT E Form of Section 4.04(b)(ii) Certificate
EXHIBIT F-1 Form of Opinion of Vinson & Elkins, Special Counsel to the
Credit Parties
EXHIBIT F-2 Form of Opinion of Wiley, Rein & Fielding, Special FCC Counsel
to the Credit Parties
EXHIBIT G Form of Officers' Certificate
EXHIBIT H Form of Subsidiary Guaranty
EXHIBIT I Form of Pledge Agreement
EXHIBIT J Form of Security Agreement
EXHIBIT K Form of Consent Letter
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of Parent Note
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CREDIT AGREEMENT, dated as of May 29, 1998, among CAPSTAR
BROADCASTING CORPORATION, a Delaware corporation ("Parent"), CAPSTAR
BROADCASTING PARTNERS, INC., a Delaware corporation ("Holdings"), CAPSTAR RADIO
BROADCASTING PARTNERS, INC., a Delaware corporation (the "Borrower"), the Banks
party hereto from time to time, NATIONSBANC MONTGOMERY SECURITIES LLC, as
Syndication Agent, SALOMON BROTHERS HOLDING COMPANY INC and GOLDMAN SACHS
CREDIT PARTNERS L.P., as Documentation Agents, and BANKERS TRUST COMPANY, as
Administrative Agent (all capitalized terms used herein and defined in Section
11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. (a) (i) Subject to and upon the terms and
conditions set forth herein, each Bank with an A Term Loan Commitment severally
agrees to make a term loan or term loans (each such term loan together with any
term loans made pursuant to clause (ii) of this Section 1.01(a) collectively,
the "A Term Loans," and each an "A Term Loan") to the Borrower, which A Term
Loans made pursuant to this Section 1.01(a)(i) shall (i) be incurred by the
Borrower pursuant to (x) a single drawing on the Initial Borrowing Date and (y)
a single drawing on the Second A Term Loan Borrowing Date and (ii) not exceed
in initial aggregate principal amount for any Bank at the time of incurrence
thereof the A Term Loan Commitment, if any, of such Bank as in effect on such
date (before giving effect to any reductions thereto on such date pursuant to
Section 3.03(c)(i) but after giving effect to any reductions thereto pursuant
to Section 3.03(c)(iii)).
(ii) Subject to and upon the terms and conditions set forth
herein, each Bank with an Additional A Term Loan Commitment severally agrees to
make an A Term Loan or A Term Loans to the Borrower, which A Term Loans made
pursuant to this Section 1.01(a)(ii) shall (i) be incurred by the Borrower
pursuant to one or more drawings after the Initial Borrowing Date and prior to
the Additional Loans Availability Termination Date and (ii) not exceed in
initial aggregate principal amount for any Bank at the time of incurrence
thereof the Additional A Term Loan Commitment, if any, of such Bank as in
effect on such date (before giving effect to any reductions thereto on such
date pursuant to Section 3.03(e)(i)).
(iii) All A Term Loans, whether made pursuant to clause (i)
or (ii) of this Section 1.01(a), shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans; provided that all A Term Loans made as part of the
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same Borrowing shall, unless otherwise specifically provided in Section
1.10(b), consist of A Term Loans of the same Type. Once repaid, A Term Loans
incurred hereunder may not be reborrowed.
(b) (i) Subject to and upon the terms and conditions set
forth herein, each Bank with a B Term Loan Commitment severally agrees to make
a term loan or term loans (each such term loan together with any term loans
made pursuant to clause (ii) of this Section 1.01(b) collectively, the "B Term
Loans," and each a "B Term Loan") to the Borrower, which B Term Loans made
pursuant to this Section 1.01(b)(i) shall (i) be incurred by the Borrower
pursuant to a single drawing on the Initial Borrowing Date and (ii) not exceed,
in initial aggregate principal amount for any Bank at the time of incurrence
thereof the B Term Loan Commitment, if any, of such Bank as in effect on such
date (before giving effect to the termination thereof on such date pursuant to
Section 3.03(d)).
(ii) Subject to and upon the terms and conditions set forth
herein, each Bank with an Additional B Term Loan Commitment severally agrees to
make a B Term Loan or B Term Loans to the Borrower, which B Term Loans made
pursuant to this Section 1.01(b)(ii) shall (i) be incurred pursuant to one or
more drawings after the Initial Borrowing Date and prior to the Additional
Loans Availability Termination Date and (ii) not exceed in initial aggregate
principal amount for any Bank at the time of incurrence thereof the Additional
B Term Loan Commitment, if any, of such Bank as in effect on such date (before
giving effect to any reductions thereto on such date pursuant to Section
3.03(e)(i)).
(iii) All B Term Loans, whether made pursuant to clause (i)
or (ii) of this Section 1.01(b), shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans; provided that all B Term Loans made as part of the same
Borrowing shall, unless otherwise specifically provided in Section 1.10(b),
consist of B Term Loans of the same Type. Once repaid, B Term Loans incurred
hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees, at any
time and from time to time on and after the Initial Borrowing Date and prior to
the A/RL Maturity Date, to make a revolving loan or revolving loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans;
provided that, except as otherwise specifically provided in Section 1.10(b),
all Revolving Loans comprising the same Borrowing shall at all times be of the
same Type, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to (I) the aggregate principal
amount of all other then outstanding Revolving Loans made by such Bank and (II)
the product of (x) such Bank's Adjusted RL Percentage and (y) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such
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time, equals the Available Revolving Loan Commitment of such Bank at such time
and (iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals the Total Available Revolving Loan
Commitment at such time.
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing of Loans under a respective Tranche shall
not be less than the Minimum Borrowing Amount for such Tranche. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding
more than fifteen Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires
to incur Loans hereunder, it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan and at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder, provided that any such
notice shall be deemed to have been given on a certain day only if given before
12:00 Noon (New York time) on such day. Each such written notice or written
confirmation of telephonic notice (each a "Notice of Borrowing"), except as
otherwise expressly provided in Section 1.10, shall be irrevocable and shall be
given by the Borrower in the form of Exhibit A, appropriately completed to
specify the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business Day),
whether the Loans being incurred pursuant to such Borrowing shall constitute A
Term Loans, B Term Loans or Revolving Loans, and whether the Loans being
incurred pursuant to such Borrowing are to be initially maintained as Base Rate
Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period
to be applicable thereto. The Administrative Agent shall promptly give each
Bank which is required to make Loans of the Tranche specified in the respective
Notice of Borrowing, notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or the Issuing Bank (in the case of the
issuance of Letters of Credit), as the case may be, may act without liability
upon the basis of such telephonic notice, believed by the Administrative Agent
or the Issuing Bank, as the case may be, in good faith to be from an Authorized
Officer of the Borrower prior to receipt of written confirmation. In each such
case, the Borrower hereby waives the right to dispute the Administrative
Agent's or the Issuing Bank's record of the terms of such telephonic notice.
1.04 Disbursement of Funds. (a) Except as otherwise
specifically provided in the second succeeding sentence, no later than 12:00
Noon (New York time) on the date specified in each Notice of Borrowing, each
Bank with a Commitment of the respective Tranche will make available its pro
rata portion of each such Borrowing requested to be made on such date. All
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<PAGE> 11
such amounts shall be made available in Dollars and in immediately available
funds at the Payment Office of the Administrative Agent, and the Administrative
Agent will make available to the Borrower at the Payment Office the aggregate
of the amounts so made available by the Banks (prior to 1:00 P.M. on such day,
to the extent of funds actually received by the Administrative Agent prior to
12:00 Noon on such day). Unless the Administrative Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's portion of any
Borrowing to be made on such date, the Administrative Agent may assume that
such Bank has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover on demand from such
Bank or the Borrower, as the case may be, interest on such corresponding amount
in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Bank, at the Federal Funds Rate and
(ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Bank from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Bank as a result of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Bank shall be evidenced
(i) if A Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1, with blanks appropriately
completed in conformity herewith (each, an "A Term Note" and, collectively, the
"A Term Notes"); (ii) if B Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each, a "B Term Note" and,
collectively, the "B Term Notes"); and (iii) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-3, with blanks appropriately completed in conformity
herewith (each, a "Revolving Note" and collectively, the "Revolving Notes").
(b)(I) The A Term Note issued to each Bank that has an A
Term Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to
the order of such Bank or its registered assigns and be dated the Initial
Borrowing Date (or, if issued thereafter, the date of the issuance thereof),
(iii) be in a stated principal amount equal to the A Term Loan Commitment of
such Bank and be payable in the outstanding principal amount of A Term Loans
evidenced thereby, (iv) mature on the A/RL Maturity Date, (v) bear interest as
provided in the appropriate
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<PAGE> 12
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided in Section
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(II) The A Term Note issued to each Bank that has an
Additional A Term Loan Commitment shall (i) be executed by the Borrower, (ii)
be payable to the order of such Bank or its registered assigns and be dated the
date of issuance thereof, (iii) be in a stated principal amount equal to the
sum of the principal amount of A Term Loans made by such Bank pursuant to
Section 1.01(a)(ii) and be payable in the outstanding principal amount of A
Term Loans evidenced thereby, (iv) mature on the A/RL Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of
the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(c)(I) The B Term Note issued to each Bank that has a B Term
Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to the
order of such Bank or its registered assigns and be dated the Initial Borrowing
Date (or, if issued thereafter, the date of the issuance thereof), (iii) be in
a stated principal amount equal to the principal amount of B Term Loans made by
such Bank pursuant to Section 1.01(b)(i) and be payable in the outstanding
principal amount of B Term Loans evidenced thereby, (iv) mature on the B Term
Loan Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02
and (vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(II) The B Term Note issued to each Bank that has an
Additional B Term Loan Commitment shall (i) be executed by the Borrower, (ii)
be payable to the order of such Bank or its registered assigns and be dated the
date of issuance thereof, (iii) be in a stated principal amount equal to the
principal amount of B Term Loans made by such Bank pursuant to Section
1.01(b)(ii) and be payable in the outstanding principal amount of B Term Loans
evidenced thereby, (iv) mature on the B Term Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of
the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) The Revolving Note issued to each Bank that has a
Revolving Loan Commitment shall (i) be executed by the Borrower, (ii) be
payable to the order of such Bank or its registered assigns and be dated the
Initial Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the outstanding principal amount of
the Revolving Loans evidenced thereby, (iv) mature on the A/RL Maturity Date,
(v) bear interest as provided in
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<PAGE> 13
the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(e) In addition to the terms set forth in clauses (b),
(c) and (d) of this Section 1.05, each Note shall also contain the following
legend (which shall be printed thereon in bold face):
THE BORROWER HEREBY DESIGNATES ITS OBLIGATIONS UNDER THIS NOTE AND THE
OTHER CREDIT DOCUMENTS AS "DESIGNATED SENIOR INDEBTEDNESS" FOR
PURPOSES OF, AND AS DEFINED IN, EACH OF THE BORROWER'S 9 1/4% SENIOR
SUBORDINATED NOTE INDENTURE AND HOLDINGS' SUBORDINATED EXCHANGE
DEBENTURES INDENTURE (EACH AS DEFINED IN THE AGREEMENT).
(f) Each Bank will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in any such notation or endorsement shall not
affect the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to
convert, on any Business Day occurring after the Initial Borrowing Date, all or
a portion equal to at least the applicable Minimum Borrowing Amount of the
outstanding principal amount of the Loans owing pursuant to a single Tranche
into a Borrowing or Borrowings pursuant to such Tranche of another Type of
Loan; provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being converted and no partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if a violation of Section 10.01 or 10.05 or an Event of
Default is in existence on the date of the conversion and the Administrative
Agent or the Required Banks have determined that such conversion at such time
would be disadvantageous to the Banks and (iii) no conversion pursuant to this
Section 1.06 shall result in a greater number of Eurodollar Loans than is
permitted under Section 1.02. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time) at least three Business Days' prior notice (each a "Notice
of Conversion") specifying the Loans to be so converted, the Borrowing or
Borrowings pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans. Upon any such conversion, the proceeds
thereof will be deemed to be applied directly on the day of such conversion to
repay the outstanding principal amount of the Loans being converted.
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<PAGE> 14
1.07 Pro Rata Borrowings. All Loans under this Agreement
shall be incurred from the Banks pro rata on the basis of their A Term Loan
Commitments, Additional A Term Loan Commitments (in the case of A Term Loans
incurred pursuant to Section 1.01(a)(ii)), B Term Loan Commitments, Additional
B Term Loan Commitments (in the case of B Term Loans incurred pursuant to
Section 1.01(b)(ii)) or Revolving Loan Commitments, as the case may be. It is
understood that no Bank shall be responsible for any default by any other Bank
of its obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans provided to be made by it hereunder, regardless of the
failure of any other Bank to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i)
the maturity (whether by acceleration, optional or mandatory, or otherwise) of
such Base Rate Loan and (ii) the conversion of such Base Rate Loan to a
Eurodollar Loan pursuant to Section 1.06, at a rate per annum which shall be
equal to the sum of the Applicable Margin plus the Base Rate in effect from
time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration, optional or mandatory, or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the
sum of the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
rate which is 2% per annum in excess of the rate then borne by such Loans, in
each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the case of an Interest
Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period and (iii) in respect of
each Loan, on any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable
to Eurodollar Loans and shall promptly notify the Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
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<PAGE> 15
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Eurodollar Loan, which Interest Period
shall, at the option of the Borrower, be a one, two, three, six or, if
available to each of the Banks, nine or twelve month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at
all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Eurodollar Loan
(including the date of any conversion thereto from a Loan of a
different Type) and each Interest Period occurring thereafter in
respect of such Eurodollar Loan shall commence on the day on which the
next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, however, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a day
which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
violation of Sections 10.01 or 10.05 or an Event of Default is then in
existence and the Administrative Agent or the Required Banks have
determined that such an election at such time would be disadvantageous
to the Banks;
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of A
Term Loans or B Term Loans, as the case may be, shall be selected at
any time which extends beyond any date upon which a mandatory
repayment of such Tranche of Term Loans will be required to be made
under Section 4.02(b)(i) or (ii), as the case may be, if, after giving
effect to the election of such Interest Period, the aggregate
principal amount of A Term Loans or B Term
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<PAGE> 16
Loans, as the case may be, which have Interest Periods that will
expire after such date will be in excess of the aggregate principal
amount of A Term Loans or B Term Loans, as the case may be, then
outstanding less the aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that any Bank shall have determined (which determination with respect to clause
(i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased
costs or reductions in the amounts received or receivable hereunder
with respect to any Eurodollar Loan because of (x) any change since
the Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any
Bank of the principal of or interest on such Eurodollar Loan or any
other amounts payable hereunder (except for changes in the rate of tax
on, or determined by reference to, the net income or profits of such
Bank, or any franchise tax based on the net income or profits of such
Bank, in either case pursuant to the laws of the United States of
America or the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any
amounts payable in respect of Taxes pursuant to Section 4.04(a), or
(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included
in the computation of the Eurodollar Rate and/or (y) other
circumstances since the Effective Date affecting such Bank or the
interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the Effective Date which materially and adversely affects the
interbank Eurodollar market;
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<PAGE> 17
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the Banks
that the circumstances giving rise to such notice by the Administrative Agent
no longer exist, and any Notice of Borrowing or Notice of Conversion given by
the Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall, subject to the provisions
of Section 13.15 (to the extent applicable) pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Bank,
showing the basis for the calculation thereof and certifying that it is
generally charging such costs to other similarly situated borrowers under
similar credit facilities, submitted to the Borrower by such Bank in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law. Each of the
Administrative Agent and each Bank agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Bank, the
Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Bank, the obligations
of such Bank to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent given immediately, or if
permitted by applicable law given at such later date permitted thereby, require
the affected Bank to convert such Eurodollar Loan into a Base Rate Loan,
provided that, if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the Effective Date any Bank
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any
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<PAGE> 18
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank based on the existence of such
Bank's Commitments hereunder or its obligations hereunder, then the Borrower
shall, subject to the provisions of Section 13.15 (to the extent applicable),
pay to such Bank, upon its written demand therefor, such additional amounts as
shall be required to compensate such Bank or such other corporation for the
increased cost to such Bank or such other corporation or the reduction in the
rate of return to such Bank or such other corporation as a result of such
increase of capital. In determining such additional amounts, each Bank will
act reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's reasonable good faith
determination (made in a manner generally consistent with such Bank's standard
practices) of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show the basis for calculation of such
additional amounts and certify that it is generally charging such costs to
other similarly situated borrowers under similar credit facilities.
1.11 Compensation. The Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans but excluding any loss
of anticipated profit) which such Bank may sustain: (i) if for any reason
(other than a default by such Bank or the Administrative Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a) or
(b)); (ii) if any repayment (including any repayment made pursuant to Section
4.01 or 4.02 or as a result of an acceleration of the Loans pursuant to Section
10) or conversion of any of its Eurodollar Loans occurs on a date which is not
the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in
a notice of prepayment given by the Borrower; or (iv) as a consequence of (x)
any other default by the Borrower to repay its Loans when required by the terms
of this Agreement or any Note held by such Bank or (y) any election made
pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Bank, it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans affected by such event, provided that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section.
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<PAGE> 19
Nothing in this Section 1.12 shall affect or postpone any of the obligations of
the Borrower or the right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Bank which results in such Bank charging to
the Borrower increased costs in excess of those being generally charged by the
other Banks or (z) in the case of certain refusals by a Bank (other than a Bank
whose commitments are terminated in accordance with Section 3.02(b) and/or
whose Loans are repaid in accordance with Section 4.01(b)) to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as (and to the
extent) provided in Section 13.12(b), the Borrower shall have the right, if no
Default or Event of Default will exist immediately after giving effect to the
respective replacement, to either replace (1) such Bank (the "Replaced Bank")
with one or more other Eligible Transferee or Transferees reasonably acceptable
to the Administrative Agent, none of whom shall constitute a Defaulting Bank at
the time of such replacement (collectively, the "Replacement Bank") or (2) at
the option of the Borrower, to replace only (a) the Revolving Loan Commitment
(and outstandings pursuant thereto) of the Replaced Bank with an identical
Revolving Loan Commitment provided by the Replacement Bank or (b) the Term Loan
Commitment and/or outstanding Term Loans of the Replaced Bank in respect of
each Tranche with an identical Term Loan Commitment or Term Loans provided by
the Replacement Bank; provided that (i) at the time of any replacement pursuant
to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire the Commitment and
outstanding Loans (or, in the case of the replacement of only (a) the Revolving
Loan Commitment, the Revolving Loan Commitment and outstanding Revolving Loans
or (b) the Term Loan Commitment or outstanding Term Loans of one or more
Tranches, the Term Loan Commitment or the outstanding Term Loans of the
respective Tranche) of, and in each case (except for the replacement of only
the outstanding Term Loan Commitment or the outstanding Term Loans of one or
more Tranches of the respective Bank) participations in Letters of Credit by,
the Replaced Bank and, in connection therewith, shall pay to (x) the Replaced
Bank in respect thereof an amount equal to the sum of (without duplication) (A)
the principal of, and all accrued interest on, all outstanding Loans (or of the
Loans of the respective Tranche being replaced) of the Replaced Bank, (B)
except in the case of the replacement of only the Term Loan Commitment or the
outstanding Term Loans of one or more Tranches of a Replaced Bank, all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such time and
(C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Bank (but only with respect to the relevant Tranche, in the case of
the replacement of less than all Tranches of Loans then held by the respective
Replaced Bank) pursuant to Section 3.01 and (y) except in the case of the
replacement of only the Term Loan Commitment or the outstanding Term Loans of
one or more Tranches of a Replaced Bank, the Issuing Bank an amount equal to
such Replaced
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Bank's Adjusted RL Percentage (for this purpose, determined as if the
adjustment described in clause (y) of the immediately succeeding sentence had
been made with respect to such Replaced Bank) of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obligations of the
Borrower owing to the Replaced Bank (other than those (a) specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid or (b) relating to any Tranche of
Loans and/or Commitments of the respective Replaced Bank which will remain
outstanding after giving effect to the respective replacement) shall be paid in
full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Assumption Agreements, the payment
of amounts referred to in clauses (i) and (ii) above, the recordation of the
assignment in the Register by the Administrative Agent pursuant to Section
13.17 and, if so requested by the Replacement Bank, delivery to the Replacement
Bank of the appropriate Note or Notes executed by the Borrower, (x) the
Replacement Bank shall become a Bank hereunder and, unless the respective
Replaced Bank continues to have outstanding Term Loans or a Commitment
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the
same may be limited by Section 13.15 (to the extent applicable)), which shall
survive as to such Replaced Bank and (y) in the case of a replacement of a
Defaulting Bank with a Non-Defaulting Bank, the Adjusted RL Percentages of the
Banks shall be automatically adjusted at such time to give effect to such
replacement (and to give effect to the replacement of a Defaulting Bank with
one or more Non-Defaulting Banks). Any replacement of a Bank pursuant to this
Section 1.13 shall not be deemed to be a waiver of any rights which the
Borrower, the Administrative Agent or any other Bank shall have against the
Replaced Bank.
1.14 Additional Term Loan Commitments. At any time on and
after the Effective Date and prior to the Additional Loans Availability
Termination Date, with the prior written consent of the Administrative Agent,
the Borrower may request one or more Banks or other lending institutions to
assume an Additional A Term Loan Commitment or an Additional B Term Loan
Commitment and to make A Term Loans or B Term Loans, as the case may be, to the
Borrower as provided in Sections 1.01(a)(ii) and 1.01(b)(ii), respectively,
(all such term loans whether A Term Loans or B Term Loans being herein referred
to as "Additional Term Loans") and in the sole discretion of each such Bank or
other institution, any such Bank or other institution may agree to so commit;
provided that (i) no Default or Event of Default then exists or would result
therefrom, (ii) the increase in the Total Additional Term Loan Commitment
pursuant to any such request shall be in an aggregate amount of at least
$100,000,000, (iii) after giving effect to each such increase, the sum of the
Total Additional Term Loan Commitment (determined without giving effect to any
prior reductions thereto pursuant to Section 3.03(e)) and any additional
Revolving Loan Commitments pursuant to Section 9.04(xiv) shall not exceed
$550,000,000 and (iv) no more than two requests shall be made per calendar
year. The Borrower and each such Bank or other lending institution (each an
"Assuming Bank") which agrees to commit to make Additional Term Loans shall
execute and deliver to the Administrative Agent an Additional Term Loan
Assumption Agreement substantially in the form of Exhibit C (with the
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increase in or, in the case of a new Assuming Bank, assumption of, such Bank's
Additional Term Loan Commitment to be effective upon delivery of such
Additional Term Loan Assumption Agreement to the Administrative Agent). The
Administrative Agent shall promptly notify each Bank as to the occurrence of
each Additional Term Loan Assumption Date. On each Additional Term Loan
Assumption Date, (x) Schedule I shall be deemed modified to reflect the
Additional Term Loan Commitments of such Banks, and (y) the Borrower shall pay
to each such Assuming Bank such up front fee (if any) as may have been agreed
between the Borrower and such Assuming Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions set forth herein, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Initial Borrowing
Date and prior to the 5th Business Day preceding the A/RL Maturity Date (or the
30th Business Day prior to A/RL Maturity Date in the case of Trade Letters of
Credit ), (x) for the account of the Borrower and for the benefit of any holder
(or any trustee, agent or other similar representative for any such holders) of
L/C Supportable Obligations of Parent or any of its Subsidiaries, an
irrevocable sight standby letter of credit, in a form customarily used by such
Issuing Bank or in such other form as has been approved by such Issuing Bank
(each such standby letter of credit, a "Standby Letter of Credit") in support
of such L/C Supportable Obligations and (y) for the account of the Borrower, an
irrevocable sight commercial letter of credit in a form customarily used by
such Issuing Bank (each such commercial letter of credit, a "Trade Letter of
Credit" and each such Trade Letter of Credit and each Standby Letter of Credit,
a "Letter of Credit") in support of customary commercial transactions of the
Borrower and its Subsidiaries.
(b) Each Issuing Bank may agree in its sole discretion, and
BTCo hereby agrees that, in the event a requested Letter of Credit is not
issued by one of the other Issuing Banks, it will (subject to the terms and
conditions contained herein), at any time and from time to time on or after the
Initial Borrowing Date and prior to the 5th Business Day preceding the A/RL
Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower one or more Letters of Credit
(x) in the case of Standby Letters of Credit, in support of such L/C
Supportable Obligations of Parent or any of its Subsidiaries and (y) in the
case of Trade Letters of Credit, in support of sellers of goods as referenced
in Section 2.01(a), provided that the respective Issuing Bank shall be under no
obligation to issue any Letter of Credit of the types described above if at the
time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit
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in particular or shall impose upon such Issuing Bank with respect to
such Letter of Credit any restriction or reserve or capital
requirement (for which such Issuing Bank is not otherwise compensated,
including, without limitation, by reimbursement from the Borrower) not
in effect on the date hereof, or any unreimbursed loss, cost or
expense which was not applicable, in effect or known to such Issuing
Bank as of the date hereof and which such Issuing Bank in good faith
deems material to it; or
(ii) such Issuing Bank shall have received notice from any
Bank prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $150,000,000 minus the aggregate amount of cash earnest money
deposits outstanding at such time pursuant to Section 9.01(xviii) or (y) when
added to the aggregate outstanding principal amount of all Revolving Loans, the
Adjusted Total Available Revolving Loan Commitment; (ii) each Letter of Credit
shall be denominated in Dollars; (iii) the Stated Amount of each Letter of
Credit shall be no less than $50,000 or such lesser amount as is acceptable to
the Issuing Bank; and (iv) each Letter of Credit shall by its terms terminate
(A) in the case of Standby Letters of Credit, on or before the earlier of (x)
the date which occurs 12 months after the date of the issuance thereof
(although any such Letter of Credit may be extendable, if such Letter of Credit
could otherwise be issued pursuant to the terms and conditions hereof, for
successive periods of up to 12 months, but not beyond the 5th Business Day
preceding the A/RL Maturity Date), and (y) the 5th Business Day preceding the
A/RL Maturity Date and (B) in the case of Trade Letters of Credit, on or before
the earlier of (x) the date which occurs 180 days after the date of issuance
thereof and (y) the date which is 30 days prior to the A/RL Maturity Date.
(d) Schedule IV attached hereto contains a description of all
letters of credit issued by BTCo pursuant to the Existing Credit Agreement and
which are to remain outstanding on the Initial Borrowing Date. Each such
letter of credit, including any extension thereof (each an "Existing Letter of
Credit") shall constitute a "Letter of Credit" for all purposes of this
Agreement. Each Existing Letter of Credit shall be deemed issued for purposes
of Sections 2.03(a), 3.01(b) and 3.01(c) on the Initial Borrowing Date.
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever the Borrower desires that a Letter of Credit be issued for its
account, the Borrower shall give the Administrative Agent and the respective
Issuing Bank at least two Business Days' (or such shorter period as is
acceptable to the respective Issuing Bank) prior written notice thereof. In
the case of Letters of Credit to be issued pursuant to Section 2.01, each
notice shall be in the form of Exhibit D (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in
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accordance with, and will not violate the requirements of, Section 2.01(c).
Unless the respective Issuing Bank has received notice from any Bank before it
issues a Letter of Credit that one or more of the conditions specified in
Sections 5A, 5B or 6 are not then satisfied, or that the issuance of such
Letter of Credit would violate Section 2.01(c), then such Issuing Bank may
issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Bank's usual and customary practices. Upon its
issuance of or amendment to any Standby Letter of Credit, such Issuing Bank
shall promptly notify each Bank participating therein of such issuance or
amendment, and at the request of any Participant, the Issuing Bank shall
forward a copy of such issued Letter of Credit and any amendments thereto. For
Trade Letters of Credit on which the Issuing Bank is other than the
Administrative Agent, the Issuing Bank will send to the Administrative Agent by
facsimile transmission, promptly on the first Business Day of each week, the
daily aggregate Stated Amount of Trade Letters of Credit issued by such Issuing
Bank and outstanding during the preceding week. The Administrative Agent will
send to each Bank after each calendar month end and upon each payment of the
Letter of Credit Fee, a report setting forth for the relevant period the daily
aggregate Stated Amount of all outstanding Trade Letters of Credit of all
Issuing Banks during such period.
2.03 Letter of Credit Participations. (a) Immediately upon
the issuance (or deemed issuance pursuant to Section 2.01(d)) by any Issuing
Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold
and transferred to each Bank with a Revolving Loan Commitment, other than such
Issuing Bank (each such Bank, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Adjusted RL Percentage, in such Letter of Credit, each
drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although the Letter of Credit Fee shall be payable directly
to the Administrative Agent for the account of the Participants as provided in
Section 3.01(b) and the Participants shall have no right to receive any portion
of any Facing Fees). Upon any change in the respective Revolving Loan
Commitments of the Banks pursuant to Section 1.13 or 13.04(b), it is hereby
agreed that, with respect to all such outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.03 to reflect the new Adjusted RL Percentages of the assignor
and assignee Bank.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Bank shall have no obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such Letter
of Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by any Issuing Bank under or in connection
with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct as determined by a court of competent
jurisdiction and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall not create for such
Issuing Bank any resulting liability to the Borrower or any Bank.
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(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly
and unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the Federal Funds Rate. The failure of any Participant to make available to
such Issuing Bank its Adjusted RL Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to such Issuing Bank its Adjusted RL Percentage of any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Issuing Bank such other Participant's Adjusted RL Percentage of any such
payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to each
Participant which has paid its Adjusted RL Percentage thereof, in Dollars and
in same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Parent or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Issuing Bank, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying
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transaction between Parent or any Subsidiary of Parent and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment directly to such Issuing Bank in immediately available funds, for any
payment or disbursement made by it under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), no later than three
Business Days after the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Issuing Bank, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding
the date such Issuing Bank was reimbursed by the Borrower therefor at a rate
per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans; provided,
however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New
York time) on the fifth Business Day following such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Issuing Bank (and until reimbursed by the Borrower) at a rate per annum which
shall be the Base Rate in effect from time to time plus the Applicable Margin
for Revolving Loans maintained as Base Rate Loans plus 2%, in each such case,
with interest to be payable on demand. The respective Issuing Bank shall give
the Borrower prompt notice of each Drawing under any Letter of Credit, provided
that the failure to give any such notice shall in no way affect, impair or
diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04
to reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Bank's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by any Issuing Bank
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct as determined by a court of
competent jurisdiction and in
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accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, shall not create for such Issuing Bank any resulting
liability to the Borrower.
2.05 Increased Costs. If at any time after the Effective
Date, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant, or any corporation controlling such Person, with any request
or directive by any such authority (whether or not having the force of law),
shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of credit issued by any
Issuing Bank or participated in by any Participant, or (ii) impose on any
Issuing Bank or any Participant, or any corporation controlling such Person,
any other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the
cost to any Issuing Bank or any Participant of issuing, maintaining or
participating in any Letter of Credit, or reduce the amount of any sum received
or receivable by any Issuing Bank or any Participant hereunder or reduce the
rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income or
profits of such Issuing Bank or such Participant, or any corporation
controlling such Person, or any franchise tax based on the net income or
profits of such Bank or Participant, or any corporation controlling such
Person, in either case pursuant to the laws of the United States of America,
the jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein),
but without duplication of any amounts payable in respect of taxes pursuant to
Section 4.04(a), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or such
Participant to the Administrative Agent) and subject to the provisions of
Section 13.15 (to the extent applicable), the Borrower shall pay to such
Issuing Bank or such Participant such additional amount or amounts as will
compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Bank
or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Bank or such Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Administrative
Agent), setting forth in reasonable detail the basis for the calculation of
such additional amount or amounts necessary to compensate such Issuing Bank or
such Participant. The certificate required to be delivered pursuant to this
Section 2.05 shall, if delivered in good faith and absent manifest error, be
final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) (i) The Borrower agrees to pay the
Administrative Agent for distribution to each Non-Defaulting Bank with a
Revolving Loan Commitment a commitment commission (the "Revolving Loan
Commitment Commission") for the period from the Effective Date to and including
the A/RL Maturity Date (or such earlier date as the Total Revolving Loan
Commitment shall have been terminated), computed at a rate for each day equal
to the
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Applicable Commitment Commission Percentage on the daily average Unutilized
Revolving Loan Commitment of such Non- Defaulting Bank. Accrued Revolving Loan
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the A/RL Maturity Date or such earlier date upon
which the Total Revolving Loan Commitment is terminated.
(ii) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Bank with an A Term Loan Commitment a
commitment commission (the "A Term Loan Commitment Commission") for the period
from the Effective Date to and including the Second A Term Loan Borrowing Date
(or such earlier date as the Total A Term Loan Commitment shall have been
terminated), computed at a rate for each day equal to the Applicable Commitment
Commission Percentage on the daily average A Term Loan Commitment of such
Non-Defaulting Bank. Accrued A Term Loan Commitment Commission shall be due
and payable quarterly in arrears on each Quarterly Payment Date and on the A
Term Loan Availability Termination Date or such earlier date upon which the
Total A Term Loan Commitment is terminated.
(iii) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Bank with an Additional Term Loan
Commitment a commitment commission (the "Additional Term Loan Commitment
Commission" and, together with the Revolving Loan Commitment Commission and the
A Term Loan Commitment Commission, the "Commitment Commission") for the period
from the Additional Term Loan Assumption Date to and including the Additional
Loans Availability Termination Date (or such earlier date as the Additional
Term Loan Commitment shall have been terminated), computed at a rate for each
day equal to the Applicable Commitment Commission Percentage on the daily
average Additional Term Loan Commitment of such Non-Defaulting Bank. Accrued
Additional Term Loan Commitment Commission shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the Additional Loans
Availability Termination Date or such earlier date upon which the Total
Additional Term Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment
(based on their respective Adjusted RL Percentages), a fee in respect of each
Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the period
from and including the date of issuance of such Letter of Credit, to and
including the termination of such Letter of Credit computed at a rate per annum
equal to the difference between (i) the Applicable Margin for Revolving Loans
maintained as Eurodollar Loans as in effect from time to time and (ii) 1/4 of
1% on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing
Bank, for its own account, a facing fee in respect of each Letter of Credit
issued for its account hereunder (the "Facing Fee") for the period from and
including the date of issuance of such Letter of Credit to
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and including the termination of such Letter of Credit, computed at a rate
equal to 1/4 of 1% per annum of the daily Stated Amount of such Letter of
Credit; provided that, in no event shall the annual Facing Fee with respect to
each Letter of Credit be less than $500. Accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date
upon which the Total Revolving Loan Commitment has been terminated and no
Letters of Credit remain outstanding.
(d) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge and reasonable out-of-pocket expenses
which the respective Issuing Bank is generally imposing in connection with such
occurrence with respect to letters of credit.
(e) The Borrower shall pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrower and the Administrative Agent.
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan Commitment. (a) Upon at least two Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Borrower shall have
the right, at any time or from time to time, without premium or penalty, to
terminate or partially reduce the Total Unutilized Revolving Loan Commitment in
whole or in part, provided that (x) each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each
Bank with such a Commitment, (y) any partial reduction pursuant to this Section
3.02 shall be in integral multiples of $1,000,000 and (z) the reduction to the
Total Unutilized Revolving Loan Commitment shall in no case be in an amount
which would cause the Revolving Loan Commitment of any Bank to be reduced (as
required by the preceding clause (x)) by an amount which exceeds the Unutilized
Revolving Loan Commitment of such Bank as in effect immediately before giving
effect to such reduction.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 13.12(b), the Borrower shall have the right, upon five Business Days'
written notice to the Administrative Agent at its Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks) to
terminate the entire Commitments of such Bank, so long as all Loans, together
with accrued and unpaid interest, Fees and other amounts, owing to such Bank
are repaid concurrently with the effectiveness of such termination pursuant to
Section 4.01(b) (at which time Schedule I shall be deemed modified to reflect
such changed amounts), and at such time such Bank shall no longer constitute a
"Bank" for purposes of this Agreement, except with respect to indemnifications
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 12.06 and 13.01, as the same may be limited by Section 13.15 (to the
extent applicable)), which shall survive as to such repaid Bank.
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<PAGE> 29
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitment (and the A Term Loan Commitment, B Term Loan Commitment, and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on June
30, 1998 unless (i) all elements of the Transaction which are required pursuant
to Section 5A to have been consummated on or prior to the Initial Borrowing
Date shall have been consummated and (ii) the Initial Borrowing Date has
occurred.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Revolving Loan Commitment (and the Revolving
Loan Commitment of each Bank) shall terminate in its entirety on the A/RL
Maturity Date.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total A Term Loan Commitment (and the A Term
Loan Commitment of each Bank) shall (i) be reduced on each date on which A Term
Loans (other than A Term Loans incurred pursuant to Section 1.01(a)(ii)) are
incurred (after giving effect to the making of A Term Loans on such date), in
an amount equal to the aggregate principal amount of A Term Loans incurred on
such date, (ii) terminate in its entirety on the Second A Term Loan Borrowing
Date (after giving effect to the making of A Term Loans pursuant to Section
1.01(a)(i) on or prior to such date) and (iii) prior to the termination of the
Total A Term Loan Commitment as provided above, be reduced from time to time to
the extent required by Section 4.02.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total B Term Loan Commitment (and the B Term
Loan Commitment of each Bank) shall terminate in its entirety on the Initial
Borrowing Date (after giving effect to the making of B Term Loans pursuant to
Section 1.01(b)(i) on such date).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Additional Term Loan Commitment (and
the Additional Term Loan Commitment (whether Additional A Term Loan Commitment
or Additional B Term Loan Commitment) of each Bank) shall (i) be reduced on
each date on which Additional Term Loans are incurred (after giving effect to
the making of Additional Term Loans incurred on such date), in an amount equal
to the aggregate principal amount of Additional Term Loans incurred on such
date and (ii) terminate in its entirety on the Additional Loans Availability
Termination Date (after giving effect to the making of Additional Term Loans on
or prior to such date). Each mandatory commitment reduction required pursuant
to this Section 3.03(e) shall be applied pro rata to the Total Additional A
Term Loan Commitment (in an amount equal to the Additional A Term Loan
Percentage) and the Total Additional B Term Loan Commitment (in an amount equal
to the Additional B Term Loan Percentage).
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Effective Date upon which
a mandatory repayment of Term Loans (or a mandatory reduction to the Total Term
Loan Commitment, as the case may be), pursuant to any of Sections 4.02(c)
through 4.02(i), inclusive, is required (and exceeds in amount the aggregate
principal amount of Term Loans then outstanding (or the Total Term Loan
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<PAGE> 30
Commitment as then in effect, as the case may be)) or would be required if Term
Loans were then outstanding (or the Total Term Loan Commitment as then in
effect, as the case may be), the Total Revolving Loan Commitment shall be
permanently reduced by the amount, if any, by which the amount required to be
applied pursuant to said Sections (determined as if an unlimited amount of Term
Loans were actually outstanding) (or the Total Term Loan Commitment as then in
effect, as the case may be)) exceeds the aggregate principal amount of Term
Loans then outstanding (or the Total Term Loan Commitment as then in effect, as
the case may be). Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03(f) shall be applied proportionally to permanently
reduce the Revolving Loan Commitment of each Bank with such a Commitment.
(g) Each reduction to the Total A Term Loan Commitment, Total
B Term Loan Commitment, the Total Additional Term Loan Commitment and the Total
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to Section
4.02) shall be applied pro rata to reduce the A Term Loan Commitment, B Term
Loan Commitment, the Additional Term Loan Commitment or the Revolving Loan
Commitment, as the case may be, of each Bank with such a Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York
time) at its Notice Office (x) at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
Base Rate Loans and (y) at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, whether such Loans are A Term Loans, B Term Loans or
Revolving Loans, the amount of such prepayment and the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
promptly transmit to each of the Banks; (ii) each prepayment shall be in an
aggregate principal amount of at least $25,000; provided that, if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, then such Borrowing shall
be converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans and any election of an Interest Period with respect thereto
given by the Borrower shall have no force or effect; (iii) each prepayment in
respect of any Loans made pursuant to a Borrowing shall, except as provided in
clause (iv) below, be applied pro rata among the Banks which made such Loans;
(iv) at the Borrower's election in connection with any prepayment of Loans,
such prepayment shall not be applied to the Revolving Loans of a Defaulting
Bank and (v) each voluntary prepayment of any Tranche of Term Loans pursuant to
this Section 4.01(a) shall be applied to A Term Loans (in an amount equal to
the A TL Percentage of such prepayment) and B Term Loans (in an amount equal to
the B TL Percentage of such prepayment) and shall reduce the remaining
Scheduled Repayments of each of the remaining Scheduled Repayments of each of
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<PAGE> 31
the A Term Loans and B Term Loans on a pro rata basis (based upon the then
remaining principal amount of each such Scheduled Repayment).
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 13.12(b), the Borrower shall have the right, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Banks)
to repay all Loans, together with accrued and unpaid interest, Fees, and other
amounts owing to such Bank (or owing to such Bank with respect to each Tranche
which gave rise to the need to obtain such Bank's individual consent), in
accordance with said Section 13.12(b) so long as (A) in the case of the
repayment of Revolving Loans of any Bank pursuant to this clause (b), the
Revolving Loan Commitment of such Bank is terminated concurrently with such
repayment (at which time Schedule I shall be deemed modified to reflect the
changed Revolving Loan Commitments), (B) in the case of the repayment of A Term
Loans of any Bank pursuant to this clause (b), the A Term Loan Commitment of
such Bank (to the extent not theretofore terminated) is terminated concurrently
with such repayment (at which time Schedule I shall be deemed modified to
reflect the changed A Term Loan Commitment) and (C) the consents required by
Section 13.12(b) in connection with the repayment pursuant to this clause (b)
have been obtained.
(c) Each voluntary prepayment of Term Loans pursuant to this
Section 4.01 shall be applied to A Term Loans (in an amount equal to the A/TL
Percentage of such prepayment) and B Term Loans (in an amount equal to the B/TL
Percentage of such prepayment), and shall reduce the then remaining Scheduled
Repayments of each of the A Term Loans or B Term Loans pro rata based upon the
then remaining principal amounts of the Scheduled Repayments of the respective
Tranche after giving effect to all prior reductions thereto.
4.02 Mandatory Repayments and Commitment Reductions. (a)(i)
On any day on which the sum of the aggregate outstanding principal amount of
Revolving Loans made by Non-Defaulting Banks plus the Letter of Credit
Outstandings on such day exceeds the Adjusted Total Available Revolving Loan
Commitment as then in effect, the Borrower shall repay on such date the
principal of Revolving Loans of Non-Defaulting Banks in an amount equal to such
excess. If, after giving effect to the repayment of all outstanding Revolving
Loans of Non-Defaulting Banks, the aggregate amount of the Letter of Credit
Outstandings exceeds the Adjusted Total Available Revolving Loan Commitment as
then in effect, the Borrower shall pay to the Administrative Agent at the
Payment Office on such date an amount of cash or Cash Equivalents equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of the Borrower to the Banks hereunder in a cash
collateral account to be established by the Administrative Agent.
(ii) On any day on which the aggregate outstanding
principal amount of the Revolving Loans made by any Defaulting Bank exceeds the
Available Revolving Loan
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<PAGE> 32
Commitment of such Defaulting Bank, the Borrower shall prepay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b) (i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of A Term Loans, to
the extent then outstanding, as is set forth below opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02 (j), an "A Term Loan Scheduled Repayment," and each such date, an "A Term
Loan Scheduled Repayment Date"):
<TABLE>
<CAPTION>
A Term Loan Scheduled Repayment Date Amount
------------------------------------ ------
<S> <C>
August 31, 1999 $ 11,250,000
November 30, 1999 $ 11,250,000
February 29, 2000 $ 11,250,000
May 31, 2000 $ 11,250,000
August 31, 2000 $ 16,875,000
November 30, 2000 $ 16,875,000
February 28, 2001 $ 16,875,000
May 31, 2001 $ 16,875,000
August 31, 2001 $ 16,875,000
November 30, 2001 $ 16,875,000
February 28, 2002 $ 16,875,000
May 31, 2002 $ 16,875,000
August 31, 2002 $ 22,500,000
November 30, 2002 $ 22,500,000
February 28, 2003 $ 22,500,000
May 31, 2003 $ 22,500,000
August 31, 2003 $ 22,500,000
November 30, 2003 $ 22,500,000
February 29, 2004 $ 22,500,000
May 31, 2004 $ 22,500,000
August 31, 2004 $ 45,000,000
A/RL Maturity Date $ 45,000,000
</TABLE>
; provided that, at the time of incurrence of any A Term Loans pursuant to
Section 1.01(a)(ii), each A Term Loan Scheduled Repayment occurring after the
date of such incurrence of additional A Term Loans may be adjusted in a manner
satisfactory to the Administrative Agent
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<PAGE> 33
and the Borrower and substantially consistent with the weighted average life of
the remaining A Term Loans.
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of B Term Loans, to
the extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02
(j), a "B Term Loan Scheduled Repayment," and each such date, a "B Term Loan
Scheduled Repayment Date"):
<TABLE>
<CAPTION>
B Term Loan Scheduled Repayment Date Amount
------------------------------------ ------
<S> <C>
August 31, 1998 $ 1,000,000
November 30, 1998 $ 1,000,000
February 28, 1999 $ 1,000,000
May 31, 1999 $ 1,000,000
August 31, 1999 $ 1,000,000
November 30, 1999 $ 1,000,000
February 29, 2000 $ 1,000,000
May 31, 2000 $ 1,000,000
August 31, 2000 $ 1,000,000
November 30, 2000 $ 1,000,000
February 28, 2001 $ 1,000,000
May 31, 2001 $ 1,000,000
August 31, 2001 $ 1,000,000
November 30, 2001 $ 1,000,000
February 28, 2002 $ 1,000,000
May 31, 2002 $ 1,000,000
August 31, 2002 $ 1,000,000
November 30, 2002 $ 1,000,000
February 28, 2003 $ 1,000,000
May 31, 2003 $ 1,000,000
August 31, 2003 $ 45,000,000
November 30, 2003 $ 45,000,000
February 29, 2004 $ 45,000,000
May 31, 2004 $ 45,000,000
August 31, 2004 $ 50,000,000
November 30, 2004 $ 50,000,000
February 28, 2005 $ 50,000,000
B Term Loan Maturity Date $ 50,000,000
</TABLE>
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<PAGE> 34
; provided that, at the time of incurrence of any B Term Loans pursuant to
Section 1.01(b)(ii), each B Term Loan Scheduled Repayment occurring after the
date of such incurrence of additional B Term Loans may be adjusted in a manner
satisfactory to the Administrative Agent and the Borrower and substantially
consistent with the weighted average life of the remaining B Term Loans.
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective Date
upon which Parent or any of its Subsidiaries receives any proceeds from any
capital contributions or any sale or issuance of its equity (other than (i)
proceeds received as part of the IPO, (ii) proceeds received from the issuance
of shares of Parent Common Stock as a result of any reissuance of Parent Common
Stock to new employees pursuant to, and as permitted by, Section
9.03(iii)(B)(y) to the extent that the aggregate proceeds do not exceed
$15,000,000 in any fiscal year of Parent, (ii) so long as no Default or Event
of Default then exists or would result therefrom, the first $250,000,000 of
proceeds received by Parent from the sale or issuance of its equity used to
finance Permitted Section 9.02(xiii) Acquisitions, (iii) so long as no Default
or Event of Default then exists or would result therefrom, proceeds received
from the sale or issuance of shares of Parent Common Stock to be used to cure
defaults or make principal or interest payments under any Non-Controlled Entity
Credit Facility and (iv) proceeds from any Permitted Issuance), an amount equal
to 100% of the cash proceeds from the respective capital contribution or sale
or issuance (net of all reasonable costs associated therewith, including,
without limitation, all due diligence costs and expenses paid for, or
reimbursed by, Parent and/or any of its Subsidiaries, all underwriting or
similar fees, discounts and commissions, attorneys' fees paid for or reimbursed
by, Parent and/or any of its Subsidiaries and other direct costs associated
therewith) shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 4.02(j) and (k).
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any incurrence by Parent or any of its Subsidiaries of
Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 9.04), an amount equal to 100% of
the cash proceeds of the respective incurrence of Indebtedness (net of all
reasonable costs associated therewith, including, without limitation, all due
diligence costs and expenses paid for, or reimbursed by, Parent and/or any of
its Subsidiaries, any underwriting or similar fees, discounts and commissions,
attorneys' fees and expenses paid for, or reimbursed by, Parent and/or any of
its Subsidiaries, all financing and/or commitment fees and other direct costs
associated therewith) shall be applied as a
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<PAGE> 35
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(j) and (k).
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives proceeds
from any sale of assets (including capital stock and securities held thereby,
but excluding sales of assets to the extent permitted by Sections 9.02(ii),
(v), (vi), (vii), (x) and (xii)), an amount equal to 100% of the Net Sale
Proceeds therefrom shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirement of Sections 4.02(j) and (k),
provided, that so long as no Default or Event of Default then exists, the Net
Sale Proceeds of the sale of any Media Assets (whether as an asset sale, stock
transfer, merger or otherwise (including sales or swaps of Media Assets
pursuant to the sales, Media Asset Swaps or Stock Swaps, respectively effected
pursuant to Section 9.02(viii), (ix) or (xviii)) shall not be required to be so
applied on the date of receipt thereof to the extent the Borrower has delivered
a certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be reinvested or shall be committed to be
reinvested in Media Assets (and related assets) or 100% of the capital stock or
other equity interests of a Person whose principal business is the ownership
and operation of Media Assets (and related assets) or equipment to be used at
Media Assets (whether by merger of the Borrower or any of its Subsidiaries
(including Subsidiaries created pursuant to Section 9.14), or a Stock Swap or a
Media Asset Swap effected pursuant to Section 9.02(viii) or (ix)) (each a
"Reinvestment Asset" and collectively the "Reinvestment Assets") within 180
days following such date, and the Total Revolving Loan Commitment shall be
temporarily reduced by the amount of such Net Sale Proceeds and shall
constitute Blocked Commitments until the date on which such proceeds are to be
reinvested in Reinvestment Assets on which date such amount shall, subject to
Sections 5 and 6, be available to the Borrower as Revolving Loans or Letters of
Credit, as applicable to pay actual costs incurred by it in connection with the
acquisition of Reinvestment Assets or the making of any escrow deposits in
connection therewith or the posting of Letters of Credit in connection
therewith, and, provided further, that if all or any portion of such Net Sale
Proceeds not applied as a mandatory repayment and/or commitment reduction
pursuant to the preceding proviso are either (a) not so used or committed to be
used within 180 days after the date of receipt of such Net Sale Proceeds or (b)
if committed to be so used within 180 days after the date of receipt of such
Net Sale Proceeds and not so used within 360 days after the date of receipt of
such Net Sale Proceeds, then, in either such case, such remaining portion not
used or committed to be used in the case of preceding clause (a) and not used
in the case of preceding clause (b) shall be applied on the date which is 180
days following the date of receipt of such Net Sale Proceeds in the case of
clause (a) above, or the date occurring 360 days after the date of receipt of
such Net Sale Proceeds in the case of clause (b) above as a mandatory repayment
and/or commitment reduction in accordance with the requirements of Sections
4.02(j) and (k). At the time of the acquisition of any Reinvestment Assets,
Parent shall comply and shall cause its Subsidiaries to comply with Section
8.13.
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<PAGE> 36
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each Excess Cash
Payment Date, an amount equal to 50% of the Excess Cash Flow for the relevant
Excess Cash Payment Period shall be applied as a mandatory repayment and/or
mandatory commitment reduction in accordance with the requirements of Sections
4.02(j) and (k).
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Effective Date on which Parent or any of its Subsidiaries
receives any proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs including, without
limitation, legal costs and expenses and taxes incurred in connection with such
Recovery Event) shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 4.02(j) and (k);
provided that (x) so long as no Default or Event of Default then exists and
such proceeds do not exceed $2,500,000, such proceeds shall not be required to
be so applied on such date to the extent that the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used to replace or restore any properties or assets in
respect of which such proceeds were paid within 180 days following the date of
such Recovery Event (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) so long as no Default or Event of Default
then exists and to the extent that (a) the amount of such proceeds exceeds
$2,500,000, (b) the Borrower has delivered to the Administrative Agent a
certificate on or prior to the date the application would otherwise be required
pursuant to this Section 4.02(g) in the form described in clause (x) above and
also certifying the sufficiency of cash availability required by succeeding
clause (c), and (c) the Borrower has delivered to the Administrative Agent such
evidence as the Administrative Agent may reasonably request in form and
substance satisfactory to the Administrative Agent establishing that the
Borrower has or will have sufficient cash from ordinary cash flow, business
interruption insurance or from other sources satisfactory to the Administrative
Agent and that the Borrower will be receiving regular payments thereunder in
such amounts and at such times as are necessary to satisfy all obligations and
expenses of the Borrower (including, without limitation, all debt service
requirements, including pursuant to this Agreement), without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through the completion of the replacement or restoration of respective
properties or assets, then the entire amount and not just the portion in excess
of $2,500,000 shall temporarily reduce the Total Revolving Loan Commitment and
shall constitute Blocked Commitments until the date on which such proceeds are
to be used to replace or restore the respective properties or assets on which
date such amount shall, subject to Sections 5A, 5B and 6, be available to the
Borrower as Revolving Loans or Letters of Credit, as applicable to pay actual
costs incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements as
may be established by the Administrative Agent), and, provided further, that if
all or any portion of such proceeds not required to be applied as a mandatory
repayment and/or commitment reduction pursuant to the preceding proviso
(whether pursuant to clause (x) or (y) thereof) are either (A) not so used
within 180 days after the date of
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<PAGE> 37
receipt of proceeds from the respective Recovery Event or (B) if committed to
be used within 180 days after the date of receipt of proceeds from the
respective Recovery Event and not so used within 360 days after the date of
receipt of proceeds from the respective Recovery Event, then, in either case,
such remaining portion not used or committed to be used in the case of the
preceding clause (A) and not used in the case of preceding clause (B), shall be
applied on the date which is 180 days following the date of receipt of proceeds
from the respective Recovery Event in the case of clause (A) above, or the date
which is 360 days after the date of receipt of proceeds from the respective
Recovery Event in the case of clause (B) above, as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(j)
and (k).
(h) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any Dividend paid by a Non-Controlled Entity, an amount equal to
100% of the net proceeds therefrom shall be applied as a mandatory repayment
and/or commitment reduction in accordance with the requirements of Sections
4.02(j) and (k).
(i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any mandatory repayment of the CCI Intercompany Loan arising from
an acceleration of all principal and accrued interest owing thereunder, an
amount equal to 100% of the net proceeds therefrom shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(j) and (k).
(j) Each amount required to be applied to Term Loans (and/or
to the Total Term Loan Commitment) pursuant to Sections 4.02(c) through (i),
inclusive, shall be applied pro rata to each Tranche of Term Loans (in an
amount equal to the A/TL Percentage and/or B/TL Percentage, as the case may be,
of such repayment or reductions). Any amount required to be applied to any
Tranche of Term Loans pursuant to Sections 4.02(c) through (i), inclusive,
shall be applied (i) first, to repay the outstanding principal amount of Term
Loans of the respective Tranche and (ii) second, to the extent in excess
thereof, to reduce the Total A Term Loan Commitment or Total B Term Loan
Commitment, as the case may be. The amount of each principal repayment of Term
Loans (and the amount of each reduction to the Term Loan Commitments) made as
required by Sections 4.02(c) through (i), inclusive, shall be applied to reduce
the then remaining Scheduled Repayments of the respective Tranche of Term Loans
pro rata based upon the then remaining amount of each Scheduled Repayment of
the respective Tranche after giving effect to all prior reductions thereto.
(k) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made; provided that: (i) repayments of Eurodollar Loans pursuant to this
Section 4.02 may only be made on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans of the respective Tranche with Interest
Periods ending on such date of required repayment and all Base Rate Loans of
the respective Tranche have been paid in full; (ii)
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<PAGE> 38
if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto, such
Borrowing shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made
pursuant to a Borrowing shall be applied pro rata among the Banks which made
such Loans. In the absence of a designation by the Borrower as described in
the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.11.
(l) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all the then outstanding Loans of any Tranche
shall be repaid in full on the respective Maturity Date for such Tranche of
Loans and (ii) no mandatory repayments shall be required from any proceeds
received by CCI from SFX Entertainment as a result of gross-up reimbursement
payments in connection with the CCI/SFX Entertainment Tax Liability.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or Banks
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder
or under any Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without set-off, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Bank, or any franchise tax based on the net income or net profits of a Bank, in
either case pursuant to the laws of the United States of America or the
jurisdiction in which it is organized or in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If any
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence of this Section 4.04(a),
then the Borrower agrees to reimburse each Bank, upon the written request of
such Bank, for taxes imposed on or measured by the net income or net profits of
such Bank, or any franchise tax based on the net income or net profits of such
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<PAGE> 39
Bank, in either case pursuant to the laws of the jurisdiction in which such
bank is organized or in which the principal office or applicable lending office
of such Bank is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank is located
and for any withholding of taxes as such Bank shall determine in good faith are
payable by, or withheld from, such Bank in respect of such amounts so paid to
or on behalf of such Bank pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Bank pursuant to this sentence. The
Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Bank, and reimburse such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Bank.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, or in
the case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Sections 1.13 or 13.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit E (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees
that from time to time after the Effective Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate,
as the case may be, and such other forms as may be required in order to confirm
or establish the entitlement of such Bank to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such form or Certificate,
in which case such Bank shall not be required to deliver any such form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Bank which is not a
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United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments
to be made to a Bank in respect of income or similar taxes imposed by the
United States if (I) such Bank has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a
Bank described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay additional amounts and to indemnify each Bank in the manner set
forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result
of any changes after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes.
(c) The provisions of this Section 4.04 are subject to the
provisions of Section 13.15 (to the extent applicable).
SECTION 5A. Conditions Precedent to Initial Credit Events.
The obligation of each Bank to make Loans and to participate in Letters of
Credit under this Agreement, and the obligations of each Issuing Bank to issue
Letters of Credit, in each case on the Initial Borrowing Date is subject, at
the time of such Credit Event, to the satisfaction of the following conditions:
5A.01 Execution of Agreement; Notes. On or prior to the
Initial Borrowing Date (i) this Agreement shall have been executed and
delivered as provided in Section 13.10 and (ii) there shall have been delivered
to the Administrative Agent for the account of each of the Banks the
appropriate A Term Note, B Term Note and/or Revolving Note executed by the
Borrower, in the amount, maturity and as otherwise provided herein.
5A.02 Opinions of Counsel. On the Initial Borrowing Date,
the Administrative Agent shall have received (i) from Vinson & Elkins L.L.P.,
special counsel to Parent and its Subsidiaries, an opinion addressed to the
Agents and each of the Banks and dated the Initial Borrowing Date covering the
matters set forth in Exhibit F-1, and (ii) from Wiley, Rein & Fielding, special
FCC counsel to Parent and its Subsidiaries, an opinion addressed to the Agents
and each of the Banks and dated the Initial Borrowing Date covering the matters
set forth in Exhibit F-2 and (iii) from local counsel satisfactory to the
Agents, opinions each of which shall be in form and substance reasonably
satisfactory to the Agents and the Required Banks and shall cover the Mortgages
and such other matters incident to the transactions contemplated herein as the
Agents may reasonably request.
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5A.03 Corporate Documents; Proceedings; etc. (a) On the
Initial Borrowing Date, the Administrative Agent shall have received a
certificate, dated the Initial Borrowing Date, signed by an Authorized Officer
of each Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, all in the form of Exhibit G with appropriate
insertions, together with copies of the certificate or articles of
incorporation, limited liability company formation certificates, operating
agreement, member agreement, partnership agreement, limited liability company
agreement and by-laws (or other equivalent organization documents) of such
Credit Party and the resolutions, or such other administrative approval, of
such Credit Party, as the case may be, referred to in such certificate, and all
of the foregoing shall be reasonably acceptable to the Agents.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Transaction Documents
shall be reasonably satisfactory in form and substance to the Agents and the
Required Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Agents reasonably may
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
5A.04 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements. On or prior to the Initial
Borrowing Date, there shall have been delivered to the Administrative Agent
true and correct copies, certified as true and complete by an Authorized
Officer of Parent or its respective Subsidiaries of (i) all agreements entered
into by Parent or any of its Subsidiaries governing the terms and relative
rights of its capital stock, limited liability company interests and any
agreements entered into by shareholders, relating to any such entity with
respect to its capital stock or limited liability company interests
(collectively, the "Shareholders' Agreements"), (ii) all agreements with senior
members of, or with respect to, the management of Parent or any of its
Subsidiaries (collectively, the "Management Agreements"), (iii) any material
employment contracts entered into by Parent or any of its Subsidiaries
(collectively, the "Employment Agreements") and (iv) all agreements relating to
the sharing of tax liabilities and benefits among Parent and/or its
Subsidiaries (each a "Tax Sharing Agreement" and collectively, the "Tax Sharing
Agreements"); all of which Shareholders' Agreements, Management Agreements,
Employment Agreements and Tax Sharing Agreements, shall be in form and
substance reasonably satisfactory to the Agents and the Required Banks and
shall be in full force and effect on the Initial Borrowing Date.
5A.05 Financings. (a) On or prior to the Initial Borrowing
Date, the Borrower shall have received or have available to it an aggregate
gross amount of approximately $1.4 billion from the Company Financings and the
Borrower shall have contributed or caused to be contributed to SBI all or part
of the proceeds of the IPO and the Chancellor Loan net of all Transaction
expenses and other related expenses, as necessary to consummate the
Acquisition.
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(b) On or prior to the Initial Borrowing Date, there
shall have been delivered to the Administrative Agent true and correct copies
of the IPO Documents, the Capstar Disposition Documents, the Chancellor Loan
Documents and the CCI-Capstar Acquisition Documents, and all of the material
terms and conditions of the IPO Documents, the Capstar Disposition Documents,
the Chancellor Loan Documents and the CCI-Capstar Acquisition Documents shall
be reasonably satisfactory in form and substance to the Agents and the Required
Banks. All material conditions precedent to the consummation of the IPO, the
incurrence of the Chancellor Loan and the CCI-Capstar Acquisition as set forth
in the S-1 filed with the SEC as amended, and as set forth in the CCI-Capstar
Acquisition Documents, the Chancellor Loan Documents, and the CCI-Capstar
Acquisition Documents, respectively, shall have been satisfied, and not waived
unless consented to by the Agents and the Required Banks (which consent shall
not be unreasonably withheld or delayed), to the reasonable satisfaction of the
Agents and the Required Banks. The IPO, the incurrence of the Chancellor Loan
and the CCI-Capstar Acquisition shall have been consummated, in each case in
all material respects in accordance with the terms and conditions of the
applicable Documents therefor and all applicable laws.
5A.06 Consummation of the Acquisition. (a) On the Initial
Borrowing Date, the Acquisition shall have been consummated in all material
respects in accordance with the Acquisition Documents and all applicable laws,
and each of the conditions precedent to the consummation of the Acquisition
shall have been satisfied and not waived in any material respect except with
the consent of the Agents and the Required Banks (which consent shall not be
unreasonably withheld or delayed).
(b) On or prior to the Initial Borrowing Date, there
shall have been delivered to the Administrative Agent true and correct copies
of the Acquisition Documents, and all of the terms and conditions of the
Acquisition Documents shall be reasonably satisfactory in form and substance to
the Agents and the Required Banks.
5A.07 Refinancings. (a) On or prior to the Initial
Borrowing Date, the total commitment in respect of the Indebtedness to be
Refinanced shall have been terminated, and all loans and notes with respect
thereto shall have been repaid in full, together with interest thereon, all
letters of credit issued thereunder shall have been terminated (or converted
into Existing Letters of Credit) and all other amounts (including premiums)
owing pursuant to the Indebtedness to be Refinanced shall have been repaid in
full and all documents in respect of the Indebtedness to be Refinanced and all
guarantees with respect thereto shall have been terminated (except as to
indemnification provisions which may survive to the extent provided therein)
and be of no further force and effect.
(b) On or prior to the Initial Borrowing Date, the
creditors in respect of the Indebtedness to be Refinanced shall have terminated
and released any and all security interests and Liens on the assets owned by
Parent and its Subsidiaries. The Administrative Agent shall have received such
releases of security interests in and Liens on the assets owned by Parent and
its Subsidiaries as may have been reasonably requested by the Agents and the
Required Banks, which releases shall be in form and substance reasonably
satisfactory to the Agents and the
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Required Banks. Without limiting the foregoing, there shall have been
delivered (i) proper termination statements (Form UCC-3 or the appropriate
equivalent) for filing under the UCC of each jurisdiction where a financing
statement (Form UCC-1 or the appropriate equivalent) was filed with respect to
the Indebtedness to be Refinanced and the documentation related thereto, (ii)
termination or reassignment of any security interest in, or Lien on, any
patents, trademarks, copyrights or similar interests of Parent or any of its
Subsidiaries on which filings have been made, (iii) terminations of all
mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust
created with respect to property of Parent or any of its Subsidiaries, in each
case, to secure the obligations in respect of the Indebtedness to be
Refinanced, all of which shall be in form and substance reasonably satisfactory
to the Agents and the Required Banks, and (iv) all collateral owned by Parent
and its Subsidiaries in the possession of any of the creditors in respect of
the Indebtedness to be Refinanced or any collateral agent or trustee under any
related security document shall have been returned to Parent or its respective
Subsidiary, as the case may be.
5A.08 Subsidiary Guaranty. On the Initial Borrowing Date,
each Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiary Guaranty in the form of Exhibit H hereto (as amended, modified,
extended, renewed, replaced, restated or supplemented from time to time, the
"Subsidiary Guaranty") and the Subsidiary Guaranty shall be in full force and
effect.
5A.09 Pledge Agreement. On the Initial Borrowing Date, each
Credit Party shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit I (as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, the "Pledge Agreement")
and shall have delivered to the Collateral Agent, as pledgee, all the Pledged
Securities referred to therein then owned by such Credit Party, endorsed in
blank in the case of promissory notes or accompanied by executed and undated
stock powers in the case of capital stock, and the Pledge Agreement shall be in
full force and effect.
5A.10 Security Agreement. On the Initial Borrowing Date,
each Credit Party shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit J (as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, the "Security Agreement")
covering all of such Credit Party's present and future Security Agreement
Collateral, together with:
(a) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may
be necessary to perfect the security interests purported to be created
by the Security Agreement;
(b) certified copies of Requests for Information or Copies
(Form UCC- 11), or equivalent reports, listing all effective financing
statements that name Parent or any Subsidiary of Parent as debtor and
that are filed in any jurisdiction where a filing may be necessary or,
in the opinion of the Collateral Agent, desirable to perfect the
security interest purported to be created by the Security Agreement,
together with copies of such financing statements (none of which shall
cover the Collateral except to the extent
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evidencing Permitted Liens or in respect of which the Collateral Agent
shall have received termination statements (Form UCC-3) or such other
termination statements as shall be required by local law); and
(c) evidence of the completion of (or the arrangement for)
all other recordings and filings of, or with respect to, the Security
Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests intended
to be created by the Security Agreement; and the Security Agreement
shall be in full force and effect.
5A.11 Mortgages; Title Insurance; etc. On the Initial
Borrowing Date, the Collateral Agent shall have received:
(a) duly authorized, fully executed, acknowledged, and
delivered deeds of trust or mortgages, substantially in each case in
form and substance satisfactory to the Collateral Agent (as amended,
modified, extended, renewed, replaced, restated or supplemented from
time to time, each a "Mortgage" and, collectively, the "Mortgages"),
which Mortgages shall cover such of the Real Property owned by Parent
and/or its Subsidiaries and shall be designated as such on Part A of
Schedule II as a Mortgaged Property thereunder (each, a "Mortgaged
Property" and, collectively, the "Mortgaged Properties"), together
with evidence that counterparts of the Mortgages have been delivered
to the title insurance company insuring the Lien on the Mortgages for
recording in all places to the extent necessary, or, in the reasonable
opinion of the Collateral Agent, desirable to effectively create or
maintain a valid and enforceable first priority mortgage lien, subject
only to Permitted Encumbrances, on the Mortgaged Properties in favor
of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors;
(b) ALTA Lender's extended coverage policies of mortgage
title insurance (or the equivalent in the state where the respective
Mortgage Property is located) covering each Mortgaged Property,
together with all endorsements reasonably requested by the Collateral
Agent relating thereto issued by First American Title Insurance
Company or such other title insurers reasonably satisfactory to the
Collateral Agent (the "Mortgage Policies") in amounts reasonably
satisfactory to the Agents (but not in excess of the value of the
respective Mortgaged Property) assuring the Collateral Agent that the
Mortgages on such Mortgaged Properties are valid and enforceable first
priority mortgage liens on the respective Mortgaged Properties, free
and clear of all defects and encumbrances except Permitted
Encumbrances and such Mortgaged Policies shall otherwise be in form
and substance reasonably satisfactory to the Agents and the Required
Banks and shall include, as appropriate and to the extent available in
the applicable jurisdiction, an endorsement for future advances under
this Agreement and the Notes and for any other matter that the
Collateral Agent in its reasonable discretion may reasonably request,
shall not include an exception for mechanic's liens, and shall provide
for affirmative insurance and such reinsurance as the Collateral Agent
in its discretion may reasonably request.
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5A.12 Consent Letter. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 1633 Broadway, New York, New York 10019, substantially in
the form of Exhibit K, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 13.08.
5A.13 Adverse Change, etc. (a) On the Initial Borrowing
Date, nothing shall have occurred since December 31, 1997 (and neither the
Agents nor the Banks shall have become aware of any facts or conditions not
previously disclosed to them in writing) which could reasonably be likely to
have a material adverse effect on the rights or remedies of the Agents or the
Banks, or on the ability of the Credit Parties to perform their respective
obligations to the Agents and the Banks or which could reasonably be likely to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower
and its Subsidiaries taken as a whole or Parent and its Subsidiaries taken as a
whole.
(b) On or prior to the Initial Borrowing Date, all
necessary governmental (domestic and foreign) and third party approvals and/or
consents in connection with the Transaction and the other transactions
contemplated by the Transaction Documents and otherwise referred to herein or
therein shall have been obtained and remain in effect, and all applicable
waiting periods with respect thereto shall have expired without any action
being taken by any competent authority which restrains, prevents or imposes
materially adverse conditions upon, the consummation of the Transaction or the
other transactions contemplated by the Transaction Documents or otherwise
referred to herein or therein. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunction or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon, or materially delaying or making
economically unfeasible the consummation of the Transaction or the other
transactions contemplated by the Transaction Documents or otherwise required to
be consummated herein or therein.
5A.14 Solvency Letter; Environmental Analyses; Insurance. On
the Initial Borrowing Date, the Borrower shall have delivered or shall cause to
be delivered to the Administrative Agent (i) a solvency letter in form and
substance satisfactory to the Agents from Murray, Devine & Co., Inc., setting
forth its conclusions that, after giving effect to all elements of the
Transaction which are required pursuant to Section 5A to have been consummated
on or prior to the Initial Borrowing Date, each of Parent and its Subsidiaries
taken as a whole, and the Borrower and its Subsidiaries taken as a whole, is
not insolvent and will not be rendered insolvent by the indebtedness incurred
in connection therewith, and will not be left with unreasonably small capital
with which to engage in their business and will not have incurred debts beyond
their ability to pay debts as they mature, (ii) environmental and hazardous
substance assessments and analysis in scope, and in form and substance,
satisfactory to the Agents and the Required Banks and (iii) evidence of
insurance complying with the requirements of Section 8.03 for the business and
properties of Parent and its Subsidiaries, in scope, form and substance
reasonably satisfactory to the Agents and the Required Banks and naming the
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Collateral Agent as an additional insured and/or loss payee, and stating that
such insurance shall not be canceled or revised without 30 days' prior written
notice by the insurer to the Collateral Agent.
5A.15 Projections. On or prior the Initial Borrowing Date,
the Banks shall have received the Projections described in Section 7.05(d),
which Projections shall be in form and substance reasonably satisfactory to the
Agents and the Required Banks.
5A.16 Pro Forma Balance Sheet. On or prior to the Initial
Borrowing Date, the Banks shall have received the unaudited pro forma
consolidated balance sheet of Parent and its Subsidiaries as of March 31, 1998,
after giving effect to the Transaction and prepared on a basis consistent with
the Projections, which pro forma balance sheet shall be in form and substance
reasonably satisfactory to the Agents and the Required Banks.
5A.17 Payment of Fees. On the Initial Borrowing Date, the
Borrower shall have paid to the Agents and the Banks all costs, fees and
expenses (including, without limitation, legal fees and expenses) payable to
the Agents and the Banks to the extent then due.
5A.18 CCI Intercompany Loan. (a) On or prior to the Initial
Borrowing Date, the Borrower shall have agreed, pursuant to documentation
satisfactory to the Agents and the Required Banks, to lend to CCI on a fully
secured basis an aggregate principal amount of up to $1.4 billion (the "CCI
Intercompany Loan"). CCI shall have utilized the net cash proceeds from the
CCI Intercompany Loan to repay advances under a bridge credit facility which
was entered into for the purpose of repaying indebtedness of CCI under the CCI
Original Credit Facility and for working capital purposes of CCI and its
Subsidiaries.
(b) On or prior to the Initial Borrowing Date, there
shall have been delivered to the Agents true and correct copies of the
documentation for the CCI Intercompany Loan, and all of the terms and
conditions of such documentation shall be reasonably satisfactory in form and
substance to the Agents and the Required Banks.
SECTION 5B. Conditions Precedent to A Term Loans on the
Second A Term Loan Borrowing Date. The obligation of each Bank with an A Term
Loan Commitment to make A Term Loans to the Borrower hereunder on the Second A
Term Loan Borrowing Date is subject, at the time of the making of such A Term
Loans to the satisfaction of the following conditions:
5B.01 CCI Redemptions. (a) On the Second A Term Loan
Borrowing Date and concurrently with the Credit Events then occurring, (x) CCI
shall have repurchased, retired or redeemed approximately $154,000,000 in
aggregate principal amount of CCI's Existing 10 3/4% Senior Subordinated Notes
(the "CCI Existing 10 3/4% Senior Subordinated Notes Redemption"), in
accordance with their terms, the terms of the CCI 10 3/4% Senior Subordinated
Notes Documents and this Agreement and (y) CCI shall have repurchased, retired
or redeemed approximately $119,600,000 in aggregate liquidation preference of
the outstanding shares of CCI's
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12 5/8% Series E Cumulative Exchangeable Preferred Stock (the "CCI Exchangeable
Preferred Stock Redemption" and together with the CCI Existing 10 3/4% Senior
Subordinated Notes Redemption, the "CCI Redemptions"), in accordance with their
terms, the terms of the CCI Exchangeable Preferred Stock Documents and this
Agreement.
(b) All terms and conditions of the CCI Redemptions and
the documentation therefor shall be satisfactory to the Agents and the Required
Banks.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of (i) each Bank to make Loans, (ii) any Issuing Bank to issue any
Letter of Credit or (iii) any Bank to participate in any Letter of Credit
issued or to be issued, is subject, at the time of each such Credit Event, to
the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Credit Event,
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
6.02 Notice of Borrowing; Letter of Credit Request . (a)
Prior to the making of each Loan, the Administrative Agent shall have received
a Notice of Borrowing meeting the requirements of Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
The acceptance of the proceeds of each Loan by the Borrower or
the issuance of each Letter of Credit by an Issuing Bank at the request of the
Borrower (occurring on the Initial Borrowing Date and thereafter) shall
constitute a representation and warranty by each of Parent, Holdings and the
Borrower to the Agents and each of the Banks that all the conditions specified
in Section 5A (with respect to Credit Events on the Initial Borrowing Date), in
Section 5B (with respect to Credit Events on the Second A Term Loan Borrowing
Date) and in this Section 6 (with respect to Credit Events on and after the
Initial Borrowing Date) and applicable to such Credit Events exist as of that
time. All of the Notes, certificates, legal opinions and other documents and
papers referred to in Sections 5A and 5B and in this Section 6, unless
otherwise specified, shall be delivered to the Administrative Agent at the
Notice Office for the account of each of the Banks and except for the Notes, in
sufficient counterparts or copies for each of the Banks and shall be in form
and substance reasonably satisfactory to the Agents and the Required Banks.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the
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Letters of Credit as provided herein, each of Parent, Holdings and the Borrower
makes the following representations, warranties and agreements, all of which
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans and the issuance of the Letters of Credit, and with the
occurrence of each Credit Event on or after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified
in this Section 7 are true and correct in all material respects on and as of
the date of each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
7.01 Corporate or Partnership Status. Each of Parent and its
Subsidiaries (i) is a duly organized or formed and validly existing
corporation, limited liability company or partnership in good standing under
the laws of the jurisdiction of its organization or formation, (ii) has the
corporate, limited liability company or partnership power and authority to own
its property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified to do business and is
in good standing in each jurisdiction where the conduct of its business
requires such qualifications except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Parent and its Subsidiaries taken as a whole.
7.02 Corporate or Partnership Power and Authority. Each
Credit Party has the corporate, limited liability company or partnership power
and authority to execute, deliver and perform the terms and provisions of each
of the Transaction Documents to which it is a party and has taken all necessary
corporate or partnership action to authorize the execution, delivery and
performance by it of each of such Transaction Documents. Each Credit Party has
duly executed and delivered each of the Transaction Documents to which it is a
party, and each of such Transaction Documents constitutes such Credit Party's
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Transaction Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Security Documents) upon any of the
material properties or assets of Parent or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument, to which
Parent or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will violate
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any provision of the certificate or articles of incorporation, partnership
agreement or by-laws (or other equivalent organization documents) of Parent or
any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except filings necessary to perfect the Liens granted pursuant to the
Security Documents and except as have been obtained or made on or prior to the
Initial Borrowing Date), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the execution, delivery and performance of any
Transaction Document or (ii) the legality, validity, binding effect or
enforceability of any such Transaction Document, except where the failure to so
obtain or make would not have a material adverse effect on (x) the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower or of Parent and its Subsidiaries taken as a whole
or (y) the ability of the Credit Parties to perform their obligations under the
Transaction Documents or the rights and remedies of the Agents and the Banks
thereunder; provided, however, that: (a) subsequent to the date of execution
of the Transaction Documents, copies of certain of the Transaction Documents
are required to be filed with the FCC; (b) Parent and its Subsidiaries will be
required from time to time to obtain certain authorizations of, or to make
certain filings with, the FCC that are required in connection with the ordinary
course of business of Parent and its Subsidiaries; (c) under the Communications
Act and the FCC rules, FCC approval is required prior to the transfer of
control of Parent, Holdings or the Borrower or any of their respective
Subsidiaries or the assignment of any of the FCC Authorizations or prior to the
exercise of any voting rights or management authority over Parent, Holdings or
the Borrower or any of their respective Subsidiaries; and (d) prior to the
exercise of certain rights or remedies under the Security Documents by the
Agents or the Banks, or their respective successors and assigns, FCC consents
and notifications with respect to such exercise may be required to be timely
obtained or made.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheets of Parent
and its Subsidiaries for the fiscal year ended December 31, 1997 and the three
month period ended on March 31, 1998, and the related statements of income,
cash flows and shareholders' equity of Parent and its Subsidiaries for such
fiscal year or three month period ended as of said dates, as the case may be,
copies of which have been furnished to the Banks on or prior to the Initial
Borrowing Date, fairly present the financial condition of Parent and its
Subsidiaries at the date of such statements and the results of operations of
the Parent and its Subsidiaries for such fiscal year and three month period, as
the case may be. All of the foregoing financial statements are true and correct
in all material respects and have been prepared in accordance with GAAP
consistently applied except to the extent provided in the notes to said
financial statements and subject, in the case of the March 31, 1998 statements,
to normal year-end adjustments. The pro forma consolidated financial
statements of Parent and its Subsidiaries as of December 31, 1997, in each case
after giving effect to the Transaction and the financing therefor, copies of
which have been furnished to the Banks prior to the Initial Borrowing Date,
present fairly in all material respects the pro forma consolidated financial
position of Parent and its Subsidiaries as of December 31, 1997 and the pro
forma
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consolidated results of operations of Parent and its Subsidiaries for the
twelve month period covered thereby. After giving effect to the Transaction,
since December 31, 1997, there has been no material adverse change in the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Parent and its Subsidiaries taken
as a whole.
(b) On and as of the Initial Borrowing Date, on a pro
forma basis after giving effect to the Transaction and all Indebtedness
incurred, and to be incurred, and Liens created, and to be created, by Parent
and its Subsidiaries in connection with the transactions contemplated herein
(a) the sum of the assets, at a fair valuation, of each of Parent and its
Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole,
and the Borrower and its Subsidiaries taken as a whole, will exceed their
debts; (b) each of Parent and its Subsidiaries taken as a whole, Holdings and
its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken
as a whole, has not incurred and does not intend to incur, and does not believe
that they will incur, debts beyond their ability to pay such debts as such
debts mature; and (c) each of Parent and its Subsidiaries taken as a whole,
Holdings and its Subsidiaries taken as a whole, and the Borrower and its
Subsidiaries taken as a whole, will have sufficient capital with which to
conduct their businesses.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 7.05(a), there were as of the Initial Borrowing
Date no liabilities or obligations with respect to Parent or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower or to Parent and its Subsidiaries taken as a
whole. As of the Initial Borrowing Date, neither Parent, Holdings nor the
Borrower knows of any basis for the assertion against it of any liability or
obligation of any nature whatsoever that is not fully disclosed in the
financial statements delivered pursuant to Section 7.05(a) which, either
individually or in the aggregate, could reasonably be expected to be material
to the Borrower or Parent and its Subsidiaries taken as a whole.
(d) On and as of the Initial Borrowing Date, the financial
projections (the "Projections") previously delivered to the Agents and the
Banks have been prepared on a basis consistent with the financial statements
referred to in Section 7.05(a) (other than as set forth or presented in such
Projections), and there are no statements or conclusions in any of the
Projections which are based upon or include information known to Parent,
Holdings or the Borrower to be misleading in any material respect or which fail
to take into account material information regarding the matters reported
therein. The Projections contain estimates and projections based upon
information that was available at such time and believed to be correct and upon
assumptions believed to be reasonable, and Parent, Holdings and the Borrower do
not warrant that such estimates and projections will ultimately prove to have
been correct.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Parent, Holdings, and the Borrower,
threatened (i) with respect to any Transaction Document or (ii) that could
reasonably be expected to materially and adversely affect (x) the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects
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of the Borrower or of Parent and its Subsidiaries taken as a whole or (y) the
rights or remedies of the Administrative Agent, the Collateral Agent, the
Other Agents or the Banks or on the ability of any Credit Party to perform its
obligations to them hereunder and under the other Transaction Documents to
which it is, or will be, a party.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of Parent, Holdings or the
Borrower in writing to the Administrative Agent or any Bank (including, without
limitation, all information contained in the Transaction Documents, but
excluding the Projections) for purposes of or in connection with this
Agreement, the other Transaction Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of Parent, Holdings or the Borrower in
writing to the Administrative Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make
such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was
provided.
7.08 Use of Proceeds; Margin Regulations. (a) The proceeds
of Revolving Loans shall be used by the Borrower to (i) provide for the
Borrower's and its Subsidiaries' working capital and general corporate purposes
(including to effect Permitted Section 9.02(xiii) Acquisitions to the extent
permitted in this Agreement), (ii) pay Dividends for the payment of taxes as
permitted by Section 9.03(iv) and (iii) finance, to the extent holders of CCI's
12 5/8% Series E Cumulative Exchangeable Preferred Stock, CCI's 10 3/4% Senior
Subordinated Notes or CCI's 11 3/8% Senior Subordinated Notes opt to exercise
their right of repurchase as a result of a change of control, as provided in
the certificate of designation or the indentures, any repurchase of CCI's 12
5/8% Series E Cumulative Exchangeable Preferred Stock, CCI's 10 3/4% of Senior
Subordinated Notes or CCI's 11 3/8% Senior Subordinated Notes; provided,
however, that up to an additional $25 million of Revolving Loans may be used to
finance, in part, the Transaction and the payment of fees and expenses relating
thereto.
(b) The proceeds of all A Term Loans incurred on the Initial
Borrowing Date and the Second A Term Loan Borrowing Date shall be used by the
Borrower to finance, in part, the Transaction.
(c) The proceeds of the B Term Loans incurred on the Initial
Borrowing Date shall be used by the Borrower to finance, in part, the
Transaction.
(d) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulation T, U or X.
7.09 Tax Returns and Payments. Each of Parent, Holdings, the
Borrower and each of their Subsidiaries have timely filed or caused to be
timely filed, on the due dates thereof
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or within applicable grace periods, with the appropriate taxing authority, all
Federal and all material state returns, statements, forms and reports for taxes
(the "Returns") required to be filed by or with respect to the income,
properties or operations of Parent and/or any of its Subsidiaries. The Returns
accurately reflect in all material respects all liability for taxes of Parent,
Holdings, the Borrower and their respective Subsidiaries, as the case may be,
for the periods covered thereby. Each of Parent, Holdings, the Borrower and
their respective Subsidiaries have paid all material taxes payable by them
other than taxes which are not delinquent, and other than those contested in
good faith and for which adequate reserves have been established in accordance
with GAAP. Except as disclosed in the financial statements referred to in
Section 7.05(a), there is no material action, suit, proceeding, investigation,
audit, or claim now pending or, to the best knowledge of Parent, Holdings or
the Borrower, threatened by any authority regarding any taxes relating to
Parent, Holdings, the Borrower or any of their respective Subsidiaries. As of
the Initial Borrowing Date, none of Parent, Holdings, the Borrower nor any of
their respective Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Parent, Holdings,
the Borrower or any of their respective Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of
Parent, Holdings, the Borrower or any of their respective Subsidiaries not to
be subject to the normally applicable statute of limitations. None of Parent,
Holdings, the Borrower or any of their respective Subsidiaries has incurred, or
will incur, any material tax liability in connection with the Transaction or
the other transactions contemplated hereby.
7.10 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to
a Plan have been timely made; none of Parent, Holdings, the Borrower nor any of
their respective Subsidiaries nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975 or 4980 of the Code or reasonably expects to incur any material
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted to terminate or appoint a trustee to
administer any Plan; no condition exists which presents a material risk to
Parent, Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of Parent, Holdings, the Borrower,
their respective Subsidiaries and their ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event,
would not exceed $1,000,000; no lien imposed under the Code or ERISA on the
assets of Parent, Holdings, the Borrower or any of
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their respective Subsidiaries or any ERISA Affiliate exists or is reasonably
likely to arise on account of any Plan; and Parent, Holdings, the Borrower and
their respective Subsidiaries do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any employee pension benefit plan (as defined in
Section 3(2) of ERISA) the obligations with respect to which could reasonably
be expected to have a material adverse effect on the ability of Parent,
Holdings, the Borrower or any of its Subsidiaries to perform their respective
obligations under the Credit Documents to which they are a party.
7.11 The Security Documents. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreement, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filing, if this representation is being made more than 10 days after the
Initial Borrowing Date, has been made), creates a fully perfected first
priority lien on, and security interest in, all right, title and interest in
all of the Security Agreement Collateral described therein, subject to no other
Liens other than Permitted Liens. Each party to the Security Agreement has
good and indefeasible title to all Security Agreement Collateral described
therein, free and clear of all Liens except those described above in this
clause (a).
(b) The security interests created in favor of the Collateral
Agent, as pledgee, for the benefit of the Secured Creditors under the Pledge
Agreement constitute first priority perfected security interests in the Pledged
Securities described in the Pledge Agreement, subject to no security interest
of any other person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledged Securities and the proceeds thereof under the Pledge Agreement.
(c) The Mortgages create, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security
interest in and mortgage lien on all of the Mortgaged Properties in favor of
the Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Creditors, superior to and prior to
the rights of all third persons (except that the security interest and mortgage
lien created in the Mortgaged Properties may be subject to the Permitted
Encumbrances related thereto) and subject to no other Liens (other than Liens
permitted under Section 9.01). Part A and B of Schedule II contain a true and
complete list of each parcel of Real Property owned or leased by Parent,
Holdings, the Borrower and their respective Subsidiaries on the Initial
Borrowing Date, and the type of interest therein held by Parent, Holdings, the
Borrower or such Subsidiary. Parent, Holdings, the Borrower and each of their
respective Subsidiaries have good and indefeasible title to all Mortgaged
Properties free and clear of all Liens except those described in the first
sentence of this subsection (c).
7.12 Properties. Parent, Holdings, the Borrower and each of
their respective Subsidiaries have good and indefeasible title to all
properties (or a valid leasehold estate with
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respect to leased properties) owned by them, including all property reflected
in the balance sheet of the Borrower referred to in Section 7.05(a), free and
clear of all Liens, other than (i) as referred to in the balance sheet or in
the notes thereto or in the pro forma balance sheet or (ii) Permitted Liens.
7.13 Capitalization. (a) On the Initial Borrowing Date the
authorized capital stock of Parent shall consist of (w) 750,000,000 shares of
Class A common stock, $.01 par value per share, of which 33,668,675 shares are
issued and outstanding, (x) 150,000,000 shares of Class B common stock, $.01
par value per share, of which 6,081,723 shares are outstanding, (y) 150,000,000
shares of Class C common stock, $.01 par value per share, of which 67,808,902
shares are issued and outstanding (collectively the Class A, Class B and Class
C common stock are herein called "Parent Common Stock"), and (z) 100,000,000
shares of preferred stock, $.01 par value per share, none of which is
outstanding. All such outstanding shares have been duly and validly issued,
are fully paid and non-assessable and have been issued free of preemptive
rights. As of the Initial Borrowing Date, Parent does not have outstanding any
securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, in each case other than the options outstanding or to be
issued pursuant to the Employment Agreements or the Employee Stock Option Plan.
(b) On the Initial Borrowing Date, the authorized capital
stock of Holdings shall consist of (x) 300,000,000 shares of common stock, $.01
par share, of which 279,632,180 shares shall be issued and outstanding and (y)
2,500,000 shares of Senior Exchangeable Preferred Stock, of which 1,064,667
shares shall be issued and outstanding. All such outstanding shares have been
duly and validly issued, are fully paid and nonassessable, are free of
preemptive rights and, in the case of all such outstanding shares of common
stock, have been pledged pursuant to the Pledge Agreement. As of the Initial
Borrowing Date, Holdings does not have outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreements providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock.
(c) On the Initial Borrowing Date, the authorized capital
stock of the Borrower shall consist of 1,500,000,000 shares of common stock,
$.01 par value per share, of which 1,113,068,214 shares shall be issued and
outstanding. All such outstanding shares have been duly and validly issued,
are fully paid and nonassessable, are free of preemptive rights and, have been
pledged pursuant to the Pledge Agreement. As of the Initial Borrowing Date,
the Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreements providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock.
7.14 Subsidiaries. As of the Initial Borrowing Date, Parent
has no direct or indirect Subsidiaries other than Holdings and its
Subsidiaries, Holdings has no direct or indirect
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Subsidiaries other than the Borrower and its Subsidiaries and those other
Subsidiaries listed on Schedule V hereto and the Borrower has no Subsidiaries
other than those Subsidiaries listed on Schedule V hereto and those
Subsidiaries created or acquired after the Initial Borrowing Date pursuant to
Section 9.14. Schedule V correctly sets forth, as of the Initial Borrowing
Date, the percentage ownership (direct and indirect) of Parent in each class of
capital stock of each of its Subsidiaries and also identifies the direct owner
thereof.
7.15 Compliance with Statutes, etc. Each of Parent and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or of Parent and its Subsidiaries taken as a whole.
7.16 Environmental Matters. (a) Parents, Holdings, the
Borrower and each of their respective Subsidiaries have complied with, and on
the date of such Credit Event are in compliance with, all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws. There are no pending or, to the best knowledge of Parent,
Holdings and the Borrower after due inquiry, past or threatened Environmental
Claims against Parent, Holdings, the Borrower or any of their respective
Subsidiaries or any Real Property owned or operated by Parent, Holdings, the
Borrower or any of their respective Subsidiaries. There are no facts,
circumstances, conditions or occurrences on any Real Property owned or operated
by Parent, Holdings, the Borrower or any of their respective Subsidiaries or,
to the best knowledge of Parent, Holdings and the Borrower after due inquiry,
on any property adjoining or in the vicinity of any such Real Property that, to
the best knowledge of Parent, Holdings and the Borrower after due inquiry,
could reasonably be expected (i) to form the basis of an Environmental Claim
against Parent, Holdings, the Borrower or any of their respective Subsidiaries
or any such Real Property or (ii) to cause any such Real Property to be subject
to any restrictions on the ownership, occupancy, use or transferability of such
Real Property by Parent, Holdings, the Borrower or any of their respective
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by Parent or any of its Subsidiaries except in compliance with
applicable Environmental Laws. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by Parent or any of its
Subsidiaries except in compliance with applicable Environmental Laws. There
are not now any underground storage tanks located on any Real Property owned or
operated by Parent or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section
7.16, the representations made in this Section 7.16 shall only be untrue if the
aggregate effect of all failures and
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noncompliances of the types described above could reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Parent and its Subsidiaries taken as a whole.
7.17 Investment Company Act. None of Parent, Holdings, the
Borrower nor any of their respective Subsidiaries is an "investment company" or
a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Parent,
Holdings, the Borrower nor any of their respective Subsidiaries is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
7.19 Labor Relations. None of Parent, Holdings, the Borrower
nor any of their respective Subsidiaries is engaged in any unfair labor
practice that could reasonably be expected to have a material adverse effect on
the Borrower or on Parent and its Subsidiaries taken as a whole. There is (i)
no unfair labor practice complaint pending against Parent or any of its
Subsidiaries or, to the best knowledge of Parent, Holdings and the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no significant grievance or significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against Parent or
any of its Subsidiaries or, to the best knowledge of Parent, Holdings and the
Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against Parent or any of its Subsidiaries or, to
the best knowledge of Parent, Holdings and the Borrower, threatened against
Parent or any of its Subsidiaries and (iii) to the best knowledge of Parent,
Holdings, the Borrower, no union representation question existing with respect
to the employees of Parent or any of its Subsidiaries, except (with respect to
any matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate) such as could not reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Borrower or of Parent and
its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of
Parent and its Subsidiaries owns all material patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and formulas, or
rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, necessary for the present conduct
of its business, without any known conflict with the rights of others which, or
the failure to obtain which, as the case may be, could reasonably be likely to
result in a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole.
7.21 Special Purpose Corporation. Parent engages in no
business activities and has no significant assets (other than the capital stock
of Holdings) or liabilities (other than its
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guaranty provided in Section 14, the Limited Guaranties and such liabilities as
otherwise permitted by this Agreement).
7.22 Business of Holdings. Holdings owns the capital stock
of its Subsidiaries, provides administrative and management services thereto
and in connection therewith, has employees, enters into certain leases and
other agreements, and conducts all activities reasonably associated therewith.
7.23 FCC Authorizations. Parent and its Subsidiaries hold
such validly issued FCC main station and associated auxiliary, translator and
booster radio licenses and authorizations as are necessary to operate the Radio
Stations as they are currently operated (collectively, the "FCC
Authorizations"), each of which is in full force and effect. The FCC main
station licenses for Radio Stations to be held by Parent and its Subsidiaries,
after giving effect to all elements of the Transaction that are closing or
being consummated as of or on the Initial Borrowing Date (collectively, the
"Main Station Licenses") are listed on Schedule VI, each of which FCC
Authorizations has the expiration date indicated on Schedule VI. Neither
Parent, Holdings nor the Borrower has knowledge of any material adverse
condition imposed by the FCC as part of any FCC Authorizations which is neither
set forth on the face thereof as issued by the FCC nor contained in the rules
and regulations of the FCC applicable generally to radio stations of the type,
nature, class or location of each Radio Station. Each Radio Station is
operated by Parent and its Subsidiaries in all material respects (i) in
accordance with the terms and conditions of the FCC Authorizations applicable
to it and (ii) in accordance with the rules and regulations of the FCC and the
Communications Act of 1934, as amended (the "Communications Act"). No
proceedings are pending or, to the knowledge of Parent, Holdings or the
Borrower, are threatened which may reasonably be expected to result in the
revocation, modification, non-renewal or suspension of any of the FCC
Authorizations, the denial of any pending applications, the issuance of any
cease and desist order or the imposition of any material fines, forfeitures or
other administrative actions by the FCC with respect to the Radio Stations or
their operation, other than proceedings affecting the radio broadcasting
industry in general. Reports, applications and other documents required to be
filed by any Credit Party or any Subsidiary of the Borrower with the FCC with
respect to the Radio Stations have in all material respects been timely filed
and all such reports, applications and documents are true, correct and complete
in all material respects, and neither Parent, Holdings nor the Borrower has
knowledge of any matters (i) which could reasonably be expected to result in
the suspension or revocation of or the refusal to renew any of the FCC
Authorizations or the imposition of any material fines or forfeitures by the
FCC upon any Credit Party or any Subsidiary of the Borrower or (ii) which could
reasonably be expected to result in the modification or revocation of any Radio
Stations' authorization to operate as currently authorized under the rules and
regulations of the FCC. There are no unsatisfied or otherwise outstanding
notices of apparent liability or violations issued by the FCC with respect to
any Radio Station or its operations.
7.24 Subordinated Notes. The subordination provisions
contained in the Borrower's 9 1/4% Senior Subordinated Notes and the other
Borrower's 9 1/4% Senior Subordinated Note Documents are enforceable, and after
the issuance, if any, of Holdings' Subordinated
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Exchange Debentures the subordination provisions contained therein and in the
Holdings' Subordinated Exchange Debentures Indenture shall be enforceable, by
the Banks against the Borrower, the Subsidiary Guarantors and the holders of
the Borrower's 9 1/4% Senior Subordinated Notes and Holdings' Subordinated
Exchange Debentures, as the case may, and all Obligations hereunder and under
the other Credit Documents are or will be within the definitions of "Senior
Indebtedness," "Designated Senior Indebtedness" and "Guarantor Senior
Indebtedness," as the case may be, included in such provisions of the
Borrower's 9 1/4% Senior Subordinated Note Documents, Holdings' Subordinated
Exchange Debentures and the Holdings' Subordinated Exchange Debentures
Indenture.
7.25 Transaction. At the time of the applicable consummation
thereof, the Transaction shall have been consummated in all material respects
in accordance with the terms of the respective Transaction Documents and all
applicable laws. At the time of the applicable consummation thereof, all
material consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction to
the extent then required have been obtained, given, filed or taken and are or
will be in full force and effect (or effective judicial relief with respect
thereto has been obtained). All applicable waiting periods with respect
thereto have or, prior to the time when required, will have, expired without,
in all such cases, any action being taken by any competent authority which
restrains, prevents or imposes material adverse conditions upon the
Transaction. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
Transaction, or the occurrence of any Credit Event or the performance by any
Credit Party of its obligations under the Transaction Documents to which it is
a party.
7.26 Existing Indebtedness. Schedule IX sets forth a true
and complete list of all existing Indebtedness of Parent and its Subsidiaries
as of the Initial Borrowing Date, in each case showing the aggregate principal
amount thereof and the name of the respective borrower and any other entity
which directly or indirectly guaranteed such debt.
7.27 Year 2000 Representation. Any reprogramming required to
permit the proper functioning, in and following the year 2000, of (i) Parent's
and its Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which
Parent's and its Subsidiaries' systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by January 1,
1999. The cost to Parent and its Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to Parent
and its Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) could not reasonably be expected
to have a material adverse effect on the ability of the Credit Parties to
perform their respective obligations to the Agents and the Banks or could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower or of Parent and its Subsidiaries taken as a
whole.
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SECTION 8. Affirmative Covenants. Parent, Holdings and the
Borrower hereby covenant and agree that on and after the Effective Date and
until the Total Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Parent, Holdings and/or the
Borrower will furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month (other than the fiscal months ending March, June,
September and December) of the Borrower, (i) the combined statement of
income for the month and for the elapsed portion of the fiscal year
ended with the last day of such month, setting forth the comparative
figures for the corresponding month in the prior fiscal year and the
budgeted figures for such month as set forth in the respective budget
delivered pursuant to Section 8.01(e) and (ii) the combined statements
of income for each Region as of the end of such month and for the
elapsed portion of the fiscal year ended with the last day of such
month, setting forth the comparative figures for the corresponding
month in the prior fiscal year and the budgeted figures for such month
as set forth in the respective budget delivered pursuant to Section
8.01(e).
(b) Quarterly Financial Statements. As soon as available and
in any event within 50 days after the close of each of the first three
quarterly accounting periods in each fiscal year of Parent, (i) the
combined balance sheets of Parent, Holdings and the Borrower and their
Consolidated Subsidiaries for each fiscal quarter, each as of the end
of such quarter and the related combined statements of income and
statements of cash flows for such quarter and for the elapsed portion
of the fiscal year ended with the last day of such quarter and setting
forth in the statements of income only, the comparative figures for
the corresponding quarter in the prior fiscal year and the budgeted
figures for such quarter as set forth in the respective budget
delivered pursuant to Section 8.01(e), and (ii) the combined
statements of income for each Region as of the end of such quarter and
for the elapsed portion of the fiscal year ended with the last day of
such quarter, setting forth, the comparative figures for the
corresponding quarter in the prior fiscal year and the budgeted
figures for such quarter as set forth in the respective budget
delivered pursuant to Section 8.01(e).
(c) Annual Financial Statements. Within 95 days after the
close of each fiscal year of Parent, (i) the consolidated balance
sheets of Parent, Holdings and the Borrower and their Consolidated
Subsidiaries for each fiscal year, each as at the end of such fiscal
year and the related statements of income and retained earnings and of
cash flows for such fiscal year and, setting forth comparative figures
for the preceding fiscal year commencing fiscal year 1996 and
certified, in the case of such consolidated statements, by Coopers &
Lybrand L.L.P. or such other independent certified public accountants
of recognized national standing reasonably acceptable to the Agents,
together with a report of such accounting firm (which report shall be
unqualified as to scope) stating that in the
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course of its regular audit of the financial statements of Parent and
its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm obtained
no knowledge of any Default or Event of Default under Sections 9.03,
9.04, 9.05 and 9.07 through 9.09, inclusive, which has occurred and is
continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof, (ii) the combined statement of
income for each Region at the end of such fiscal year setting forth
comparative figures for the preceding fiscal year and the budgeted
figures for such year as set forth in the budget delivered pursuant to
Section 8.01(e), and (iii) management's discussions and analysis of
the important operational and financial developments during such
fiscal year in respect of Parent and its Subsidiaries.
(d) Management Letters. Promptly after the receipt thereof
by Parent or any of its Subsidiaries, a copy of any final "management
letter" received by Parent or such Subsidiary from its certified
public accountants and management's responses thereto.
(e) Budgets. No later than 60 days following the
commencement of the first day of each fiscal year of Parent, a budget
in form satisfactory to the Agents prepared by Parent for (x) in the
case of budgeted statements of income, each of the twelve months of
such fiscal year prepared in detail, and (y) in the case of budgeted
statements of sources and uses of cash and balance sheets, for such
fiscal year on an annual basis and prepared in detail and for each of
the five years immediately following such fiscal year prepared in
summary form, in each case, of each of Parent and its Subsidiaries and
each of the Regions accompanied by the statement of an Authorized
Officer of Parent to the effect that, to the best of his knowledge,
the budget is a reasonable estimate for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Section 8.01(a), (b) and (c),
a certificate of an Authorized Officer of the Borrower to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the
last day of a fiscal quarter or year of Parent, (x) set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 9.03, 9.04, 9.05, and 9.07
through 9.09, inclusive, at the end of such fiscal quarter or year, as
the case may be, (y) set forth the calculations required to establish
the Applicable Margin and Applicable Commitment Commission Percentage
at such time and (z) only in the case of financial statements
delivered pursuant to Section 8.01(c), set forth the calculations
required to establish whether the Borrower was in compliance with
Section 4.02(f) and set forth the amount of Excess Cash Flow for the
respective Excess Cash Payment Period.
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(g) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an Authorized Officer of Parent
or any of its Subsidiaries obtains knowledge thereof, notice of (i)
the occurrence of any event which constitutes a Default or Event of
Default and (ii) any litigation or governmental investigation or
proceeding pending (x) against Parent or any of its Subsidiaries which
could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or Parent and
its Subsidiaries taken as a whole, (y) with respect to any material
Indebtedness of the Borrower and its Subsidiaries taken as a whole or
(z) with respect to any Transaction Document which could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or Parent and its Subsidiaries taken as a
whole.
(h) Other Reports and Filings. Promptly, copies of all (x)
financial information, proxy materials and other information and
reports, if any, which Parent or any of its Subsidiaries shall file
with the Securities and Exchange Commission or any successor thereto
(the "SEC") including, without limitation, in connection with the
issuance of Holdings' Senior Notes, the Borrower's 9 1/4% Senior
Subordinated Notes, Holdings' Subordinated Exchange Debentures, the
CCI 10 3/4 Senior Subordinated Notes or the CCI Exchange Debentures,
or deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or
other representative therefor) and (y) material filings or
communications with the FCC or pursuant to and/or as required by the
Communications Act.
(i) Annual Meetings with Banks. At the request of the
Administrative Agent or the Required Banks, Parent shall within 120
days after the close of each fiscal year of Parent hold a meeting at a
time and place selected by Parent and acceptable to the Administrative
Agent with all of the Banks at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial
condition of Parent and its Subsidiaries and the budgets presented for
the current fiscal year of Holdings and its Subsidiaries.
(j) Environmental Matters. Promptly upon, and in any event
within ten (10) Business Days after, an officer of Parent or any of
its Subsidiaries obtains knowledge thereof, notice of one or more of
the following environmental matters, unless such environmental matters
could not, individually or when aggregated with all other such
environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole: (i) any
pending or threatened Environmental Claim against Parent or any of its
Subsidiaries or any Real Property owned or operated by Parent or any
of its Subsidiaries; (ii) any condition or occurrence on or arising
from any Real Property owned or operated by Parent or any of its
Subsidiaries that (x) results in noncompliance by, Parent or any of
its Subsidiaries with any applicable Environmental Law or (y) could
reasonably be expected
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to form the basis of an Environmental Claim against Parent or any of
its Subsidiaries or any such Real Property; (iii) any condition or
occurrence on any Real Property owned or operated by Parent or any of
its Subsidiaries that could reasonably be expected to cause such Real
Property to be subject to any restrictions on the ownership,
occupancy, use or transferability by Parent or any of its Subsidiaries
of such Real Property under any Environmental Law; and (iv) the taking
of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Property owned or
operated by Parent or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency;
provided, that in any event Parent shall deliver to each Bank all
notices received by Parent or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA. All
such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Parent's or such Subsidiary's response thereto. In
addition, Parent will provide the Banks with copies of all
communications with any government or governmental agency relating to
Environmental Laws, all communications with any person relating to
Environmental Claims, and such detailed reports of any Environmental
Claim as may reasonably be requested by the Banks.
(k) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to
Parent or its Subsidiaries as the Administrative Agent, any Other
Agent or any Bank may reasonably request in writing.
8.02 Books, Records and Inspections. Parent will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. Parent will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the
Administrative Agent, any Other Agent or any Bank to visit and inspect, during
regular business hours and under guidance of officers of Parent or such
Subsidiary, any of the properties of Parent, or such Subsidiary, and to examine
the books of account of Parent or such Subsidiary and discuss the affairs,
finances and accounts of Parent or such Subsidiary with, and be advised as to
the same by, its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent, such Other Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule VII
sets forth a true and complete listing of all insurance maintained by Holdings
and its Subsidiaries as of the Effective Date. Parent will, and will cause
each of its Subsidiaries to, (i) keep all property necessary in its business in
good working order and condition (ordinary wear and tear excepted), (ii)
maintain insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice and
(iii) furnish to each Bank, upon written request, full information as to the
insurance carried. In addition to the requirements of the immediately
preceding sentence, Parent, Holdings and the Borrower will at all times cause
insurance of the types described in Schedule VII to be maintained (with the
same scope of coverage as that described in Schedule VII) at levels which are
at least as great as the respective amount
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described opposite the respective type of insurance on Schedule VII under the
column headed "Maximum Amount Required to be Maintained."
(b) Parent will, and will cause its Subsidiaries to, at all
times keep their respective property insured in favor of the Collateral Agent,
and all policies or certificates (or certified copies thereof) with respect to
such insurance (and any other insurance maintained by Parent or any of its
Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction for
the benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee or as an additional insured), (ii) shall
state that such insurance policies shall not be canceled without 30 days' prior
written notice thereof by the respective insurer to the Collateral Agent, (iii)
shall provide that the respective insurers irrevocably waive any and all rights
of subrogation with respect to the Collateral Agent and the Secured Creditors,
(iv) shall contain the standard non-contributory mortgagee clause endorsement
in favor of the Collateral Agent with respect to hazard insurance coverage, (v)
shall, except in the case of public liability insurance and workers'
compensation insurance, provide that any losses shall be payable
notwithstanding (A) any act or neglect of Parent or any of its Subsidiaries,
(B) the occupation or use of the properties for purposes more hazardous than
those permitted by the terms of the respective policy if such coverage is
obtainable at commercially reasonable rates and is of the kind from time to
time customarily insured against by Persons owning or using similar property
and in such amounts as are customary, (C) any foreclosure or other proceeding
relating to the insured properties if such coverage is available at
commercially reasonable rates or (D) any change in the title to or ownership or
possession of the insured properties if such coverage is available at
commercially reasonable rates and (vi) shall be deposited with the Collateral
Agent if such coverage is available at commercially reasonable rates.
(c) If Parent or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or if Parent or
any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and the Borrower agrees to reimburse the Administrative
Agent or the Collateral Agent as the case may be, for all costs and expenses of
procuring such insurance.
8.04 Corporate Franchises. Parent will, and will cause each
of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets by Parent or any of its
Subsidiaries in accordance with Section 9.02 or (ii) the withdrawal by Parent
or any of its Subsidiaries of their qualification as a foreign corporation in
any jurisdiction where such withdrawal could not reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower or of Parent
and its Subsidiaries taken as a whole.
8.05 Compliance with Statutes, etc. Parent will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable
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restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions relating
to environmental standards and control), except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Parent and its Subsidiaries taken as a whole.
8.06 Compliance with Environmental Laws. (a) Parent will
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of its
Real Property now or hereafter owned or operated by Parent or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws. Neither Parent nor any of its Subsidiaries will generate,
use, treat, store, release or dispose of, or permit the generation, use,
treatment, storage, release or disposal of Hazardous Materials on any Real
Property now or hereafter owned or operated by Parent or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property except for Hazardous Materials used or stored
at any such Real Properties in material compliance with all applicable
Environmental Laws and reasonably required in connection with the operation,
use and maintenance of any such Real Property.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at the
Borrower's sole cost and expense, an environmental site assessment report
concerning any Real Property owned or operated by Parent or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property, provided that such request may be
made only if (i) there has occurred and is continuing an Event of Default, (ii)
the Administrative Agent reasonably believes that Parent, any of its
Subsidiaries or any such Real Property is not in material compliance with
Environmental Law, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against Parent,
any of its Subsidiaries or any such Real Property. If the Borrower fails to
provide the same within ninety (90) days after such request was made, the
Administrative Agent may order the same, and the Borrower shall grant and
hereby grants to the Administrative Agent and the Banks and their agents access
to such Real Property and specifically grants the Administrative Agent and the
Banks an irrevocable non-exclusive license, subject to the rights of tenants,
to undertake such an assessment, all at the Borrower's expense.
8.07 ERISA. As soon as possible and, in any event, within 20
days after Parent or any of its Subsidiaries or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following, Parent will
deliver to each of the Banks a certificate of an Authorized Officer of Parent
setting forth details as to such occurrence and the action, if any, that
Parent,
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such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by Parent, such Subsidiary, the ERISA Affiliate, the PBGC, or a Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is likely to be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a contribution required to be made to a Plan has not been timely made; that a
Plan has been or is reasonably expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability giving rise to a lien under ERISA or the Code; that
proceedings are likely to be or have been instituted or notice has been given
to terminate or appoint a trustee to administer a Plan, that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Parent, any of its Subsidiaries or any ERISA
Affiliate will or is reasonably expected to incur any material liability
(including any contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or that
Parent, or any Subsidiary may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) in addition to the liability that existed on
the Effective Date pursuant to any such plan or plans. Upon request the
Borrower will deliver to each of the Banks a complete copy of the annual report
(Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of any adverse material notices
received by Parent, or any of its Subsidiaries or any ERISA Affiliate from a
governmental agency with respect to any Plan shall be delivered to the Banks no
later than 20 days after the date such notice has been received by Parent, the
Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Parent shall
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
December 31, and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. Parent will, and will cause
each of its Subsidiaries to, perform all of their obligations under the terms
of each mortgage, indenture, security agreement and other debt instrument by
which it is bound, except such non-performances as could not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole or of Parent and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. Parent will pay and discharge or
cause to be paid and discharged, and will cause each of its Subsidiaries to pay
and discharge, all material taxes,
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assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any material properties belonging to it, in each
case on a timely basis, and all lawful claims which, if unpaid, might become a
lien or charge upon any properties of Parent or any of its Subsidiaries;
provided that none of Parent nor any of its Subsidiaries shall be required to
pay any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves
with respect thereto in accordance with GAAP.
8.11 Dividends on Exchangeable Preferred Stock. (a)
Holdings will pay all Dividends on the Senior Exchangeable Preferred Stock
solely through the issuance of additional shares of Senior Exchangeable
Preferred Stock rather than in cash, except as permitted to be paid in cash
pursuant to Sections 9.03(viii) and (ix).
(b) CCI will pay all Dividends on the CCI 12 5/8% Series
E Cumulative Exchangeable Preferred Stock solely through the issuance of
additional shares of CCI 12 5/8% Series E Cumulative Exchangeable Preferred
Stock rather than in cash, except as permitted to be paid in cash pursuant to
Section 9.03(xiv).
8.12 Maintenance of Separateness. Parent will, and will
cause each of its Subsidiaries to, satisfy customary corporate formalities
including the holding of regular board of directors' and shareholders' meetings
and the maintenance of corporate offices and records. None of the Borrower nor
any of its Subsidiaries shall, except as otherwise expressly permitted by this
Agreement, make any payment to a creditor of Parent, Holdings or any Non-
Controlled Entity in respect of any liability of Parent, Holdings or such
Non-Controlled Entity which is not a liability of the Borrower or such
Subsidiary, and no bank account of Parent, Holdings or any Non-Controlled
Entity shall be commingled with any bank account of the Borrower or any of its
Subsidiaries. Any financial statements distributed to any creditors of Parent
or Holdings shall, to the extent permitted by GAAP, clearly establish the
corporate separateness of Parent, Holdings and each Non-Controlled Entity from
the Borrower and its Subsidiaries. Neither Parent nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the corporate existence of Parent, Holdings or any Non-Controlled
Entity being ignored, or in the assets and liabilities of the Borrower or any
of its Subsidiaries being substantively consolidated with those of Parent,
Holdings or any Non- Controlled Entity in a bankruptcy, reorganization or other
insolvency proceeding.
8.13 Additional Security; Further Assurances. (a) Parent
will, and will cause each of its respective Subsidiaries to, grant to the
Collateral Agent security interests in Reinvestment Assets at the time of the
acquisition thereof as described in this clause (a). To the extent
Reinvestment Assets are acquired by the Borrower and/or its Subsidiaries, the
Borrower or such Subsidiary shall grant a Lien on and a security interest in
such Reinvestment Assets on the same terms as set forth in the Security
Documents and as otherwise set forth in this Section 8.13. To the extent
Reinvestment Assets are acquired by a merger or the acquisition of capital
stock, the Borrower shall cause the Person acquiring such Reinvestment Assets
to become a Subsidiary of the Borrower and/or its Subsidiaries, and shall
pledge or cause to be pledged all capital stock
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of any such Person so acquired pursuant to the Pledge Agreement, and cause such
Person to enter into an additional guaranty substantially similar to the
Subsidiary Guaranty and additional security documents substantially similar to
the Security Documents, all as otherwise set forth in this Section 8.13;
provided, that, (x) absent a change in the relevant sections of the Code or the
rules, regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, the Borrower and its Subsidiaries shall be required to
pledge only 65% of the voting capital stock of a foreign Subsidiary and no
foreign Subsidiary shall be required to enter into such guaranty or Security
Documents and (y) CCI and its Subsidiaries shall not be required to grant a
security interest to the Collateral Agent for the benefit of the Banks in any
Reinvestment Asset acquired pursuant to a contractual agreement entered into
prior to the Effective Date so long as (i) a guaranty by CCI and its
Subsidiaries of the Obligations hereunder constitutes a restricted payment
under the CCI Existing 10 3/4% Senior Subordinated Notes Documents or the CCI
12 5/8% Series E Cumulative Exchangeable Preferred Stock Documents and (ii) CCI
and its Subsidiaries grant a security interest in such Reinvestment Assets to
the Borrower in connection with the CCI Intercompany Loan; provided further,
the Borrower and its Subsidiaries shall not be required to grant a security
interest in any Reinvestment Assets that are acquired subject to a Lien
permitted by Section 9.01(vii), (viii) or (xix).
(b) Parent will, and will cause each of its Subsidiaries to,
grant to the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such Real Property of Parent or any of its Subsidiaries as are
not covered by the original Mortgages to the extent acquired after the Initial
Borrowing Date, and as may reasonably be requested from time to time by the
Administrative Agent or the Required Banks (each such Real Property, an
"Additional Mortgaged Property"). All such Additional Mortgages shall be
granted pursuant to documentation substantially in the form of the Mortgages or
in such other form as is reasonably satisfactory to the Administrative Agent
and shall constitute valid and enforceable perfected Liens superior to and
prior to the rights of all third Persons and subject to no other Liens except
as are permitted by Section 9.01 at the time of perfection thereof. The
Additional Mortgages or instruments related thereto shall have been duly
recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent for the benefit of the Secured Creditors required to be granted pursuant
to the Additional Mortgages and all taxes, fees and other charges payable in
connection therewith shall have been paid in full. Notwithstanding anything to
the contrary stated above in this clause (b), Parent and its Subsidiaries shall
be required to only grant Additional Mortgages in fee owned Real Property
(excluding tower sites) with a fair market value at the time of acquisition
thereof in excess of $1,000,000.
(c) Parent will, and will cause each of its Subsidiaries to,
grant to the Collateral Agent security interests in assets acquired pursuant to
Sections 9.02(ix) or (xiii) at the time of the acquisition thereof as described
in this clause (c). To the extent assets are acquired by the Borrower or any
of its Subsidiaries pursuant to such Sections, the Borrower or such Subsidiary
shall grant a Lien on and a security interest in such assets on the same terms
as set forth in the Security Documents and as otherwise set forth in this
Section 8.13. In connection with the acquisition of
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the capital stock of a Person pursuant to such Sections, the Borrower shall
cause such Person to become a direct or indirect Subsidiary of the Borrower,
and shall pledge or cause to be pledged all capital stock of any such Person so
acquired pursuant to the Pledge Agreement, and cause such Person to enter into
an additional guaranty substantially similar to the Subsidiary Guaranty and
additional security documents substantially similar to the Security Documents,
all as otherwise set forth in this Section 8.13; provided, that, (x) absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, the
Borrower and its Subsidiaries shall be required to only pledge 65% of the
voting capital stock of a foreign Subsidiary and no foreign Subsidiary shall be
required to enter into such guaranty or Security Documents and (y) CCI and its
Subsidiaries shall not be required to grant a security interest for the benefit
of the Agents or the Banks in assets acquired pursuant to Sections 9.02(ix) or
(xiii) insofar as such assets are acquired pursuant to contractual agreements
entered into prior to the Effective Date so long as (i) a guaranty by CCI and
its Subsidiaries of the Obligations hereunder constitutes a restricted payment
under the CCI Existing 10 3/4% Senior Subordinated Notes Documents or the CCI
12 5/8% Series E Cumulative Exchangeable Preferred Stock Documents and (ii) CCI
and its Subsidiaries grant a security interest in such assets to the Borrower
in connection with the CCI Intercompany Loan provided further, that the
Borrower and its Subsidiaries shall not be required to grant a security
interest in such assets that are acquired subject to a Lien permitted by
Section 9.01(vii), (viii) or (xix). Notwithstanding anything to the contrary
contained above, Parent and its Subsidiaries shall be required to only grant
Additional Mortgages in fee owned Real Property (excluding tower sites) with a
fair market value at the time of acquisition in excess of $1,000,000.
(d) Parent will, and will cause each of its Subsidiaries to,
at the expense of the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require pursuant to this
Section 8.13. Furthermore, Parent, Holdings and the Borrower shall cause to be
delivered to the Collateral Agent such opinions of counsel, title insurance and
other related documents as may be requested by the Collateral Agent to assure
itself that this Section 8.13 has been complied with.
(e) Parent will cause each Subsidiary established or created
in accordance with Section 9.14 or acquired in accordance with Section 9.02 to
execute and deliver a guaranty of all Obligations and all obligations under
Interest Rate Protection Agreements in substantially the form of the Subsidiary
Guaranty; provided that (x) absent a change in the relevant sections of the
Code or the rules, regulations, rulings, notices or other official
pronouncements issued or promulgated thereunder, no foreign Subsidiary shall be
required to enter into such guaranty and (y) Subsidiaries established or
created by CCI and its Subsidiaries in accordance with Section 9.14 and
pursuant to contractual agreements entered into prior to the Effective Date
shall not be required to grant to the Collateral Agent for the benefit of the
Agents or the Banks a first priority
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Lien on all property (tangible or intangible) of such Subsidiary so long as (i)
a guaranty by CCI and its Subsidiaries of the Obligations hereunder constitutes
a restricted payment under the CCI Existing 10 3/4% Senior Subordinated Notes
Documents or the CCI 12 5/8% Series E Cumulative Exchangeable Preferred Stock
Documents and (ii) such Subsidiary grants a first priority Lien on all its
property (tangible or intangible) to the Borrower in connection with the CCI
Intercompany Loan .
(f) Parent will cause each Subsidiary established or created
in accordance with Section 9.14 to grant to the Collateral Agent a first
priority Lien on all property (tangible and intangible) of such Subsidiary upon
terms similar to those set forth in the Security Documents as appropriate, and
satisfactory in form and substance to the Collateral Agent and Required Banks;
provided, that (x) absent a change in the relevant sections of the Code or the
rules, regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, no foreign Subsidiary shall be required to enter into
such Security Documents and (y) Subsidiaries established or created by CCI and
its Subsidiaries in accordance with Section 9.14 and pursuant to contractual
agreements entered into prior to the Effective Date shall not be required to
execute and deliver a guaranty of all Obligations and all Obligations under the
Interest Rate Protection Agreements; provided further, that the Borrower and
its Subsidiaries shall not be required to grant a security interest in such
assets that are acquired subject to a Lien permitted by Section 9.01(vii),
(viii) or (xix); provided further, that such Subsidiary shall be required to
only grant Additional Mortgages in fee owned Real Property (excluding tower
sites) with a fair market value at the time of acquisition in excess of
$1,000,000. Parent will cause each Subsidiary, at its own expense, to execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery
of, and thereafter register, file or record in any appropriate governmental
office, any document or instrument reasonably deemed by the Collateral Agent to
be necessary or desirable for the creation and perfection of the foregoing
Liens. Parent will cause each of its Subsidiaries to take all actions
requested by the Collateral Agent (including, without limitation, the filing of
UCC-1's) in connection with the granting of such security interests.
(g) The security interests required to be granted pursuant to
this Section 8.13 shall be granted pursuant to security documentation which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable, or otherwise
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens as
are permitted by Section 9.01. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the
benefit of the respective Secured Creditors, required to be granted pursuant to
the Additional Security Documents and all taxes, fees and other charges payable
in connection therewith shall be paid in full by the Borrower. At the time of
the execution and delivery of the Additional Security Documents, the Borrower
shall cause to be delivered to the Collateral Agent such opinions of counsel,
Mortgage Policies, title
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surveys and other related documents as may be reasonably requested by the
Administrative Agent or the Required Banks to assure themselves that this
Section 8.13 has been complied with.
(h) Each of Parent, Holdings and the Borrower will cause CCI
and its Subsidiaries to promptly take all actions required of a Credit Party
pursuant to this Section 8.13 as soon as a guaranty by CCI and its Subsidiaries
of the Obligations hereunder does not constitute a restricted payment under the
CCI 10 3/4% Senior Subordinated Notes Documents and the CCI 12 5/8% Series E
Cumulative Exchangeable Preferred Stock Documents.
(i) Each of Parent, Holdings and the Borrower agrees that
each action required above by Section 8.13 shall be completed as soon as
possible, but in no event later than 60 days after such action is requested to
be taken by the Administrative Agent or the Required Banks; provided that each
of Parent, Holdings and the Borrower further agrees that any additional
guaranty or any Additional Security Documents required to be executed pursuant
to this Section 8.13 shall be entered into contemporaneously with the creation
or acquisition of any new Subsidiary.
8.14 CCI Redemptions. Each of Parent, Holdings and the
Borrower will cause CCI to effect the CCI Redemptions on or prior to 120 days
following the Initial Borrowing Date.
SECTION 9. Negative Covenants. Parent, Holdings and the
Borrower covenant and agree that on and after the Effective Date and until the
Total Commitment and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other Obligations
incurred hereunder and thereunder, are paid in full:
9.01 Liens. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Parent or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 9.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(ii) Liens in respect of property or assets of the
Borrower or any of its Subsidiaries imposed by law, which were
incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers', warehousemen's,
materialmen's and mechanics' liens and other similar Liens arising in
the ordinary course of business, and
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(x) which do not in the aggregate materially detract from the value of
the Borrower's or such Subsidiary's property or assets or materially
impair the use thereof in the operation of the business of the
Borrower or such Subsidiary or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Initial Borrowing Date
which are listed, and the property subject thereto described, in
Schedule VIII, if any, set forth in such Schedule VIII for the removal
and termination of any such Liens, plus renewals, replacements and
extensions of such Liens to the extent set forth on Schedule VIII,
provided that (x) the aggregate principal amount of the Indebtedness,
if any, secured by such Liens does not increase from that amount
outstanding at the time of any such renewal, replacement or extension
and (y) any such renewal, replacement or extension does not encumber
any additional assets or properties of Parent or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other
Persons in a manner consistent with past practice or the radio
industry or other media industries generally not materially
interfering with the conduct of the business of Parent and its
Subsidiaries taken as a whole;
(vii) Liens upon assets subject to Capitalized Lease
Obligations to the extent permitted by Section 9.04, provided that (x)
such Liens only serve to secure the payment of Indebtedness arising
under such Capitalized Lease Obligation and (y) the Lien encumbering
the asset giving rise to the Capitalized Lease Obligation does not
encumber any other asset of either the Borrower or any Subsidiary of
the Borrower;
(viii) Liens on equipment or machinery used by the Borrower
or any of its Subsidiaries in the ordinary course of business and
incurred at the time of acquisition thereof by the Borrower or any
such Subsidiary or within 120 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof and all
renewals, replacements or extensions thereof, provided that (x) the
aggregate outstanding principal amount of all Indebtedness secured by
Liens permitted by this clause (viii) shall not at any time exceed
$15,000,000 and (y) in all events, the Lien encumbering the equipment
or machinery so acquired does not encumber any other asset of either
the Borrower or any of its Subsidiaries;
(ix) easements, rights-of-way, restrictions (including
zoning restrictions), encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case
whether now or hereafter in existence, not securing
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Indebtedness and not materially interfering with the conduct of the
business of the Borrower or any of its Subsidiaries;
(x) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into by Parent or
any of its Subsidiaries in the ordinary course of business, provided
that such Lien is limited to the respective lessor's interest in such
leased property;
(xi) Liens arising out of the existence of judgments or
awards not constituting an Event of Default under Section 10.09,
provided that no cash or property is deposited or delivered to secure
the respective judgment or award (or any appeal bond in respect
thereof, except as permitted by following clause (xiii));
(xii) statutory, contractual and common law landlords'
liens under leases to which the Borrower or any of its Subsidiaries is
a party;
(xiii) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety, stay, customs and appeal bonds, statutory bonds,
bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), provided that the
aggregate amount of deposits at any time pursuant to this clause
(xiii) shall not exceed $1,000,000;
(xiv) any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license agreement permitted by
this Agreement;
(xv) Liens in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of set-off)
held by such banking institutions incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry;
(xvi) deposits made in the ordinary course of business to
secure liabilities for premiums to insurance carriers, provided that
such deposits do not exceed $1,000,000 in the aggregate at any time;
(xvii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale of goods
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business, in accordance with past practices of the
Borrower and its Subsidiaries;
(xviii) cash earnest money deposits in connection with
acquisitions otherwise permitted by Section 9.02 in an aggregate
amount at any one time not to exceed that amount which, when added to
the aggregate amount of Letter of Credit Outstandings at such time
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to provide assurance of performance in connection with acquisitions
otherwise permitted by Section 9.02, equals $150,000,000, provided
that Parent and its Subsidiaries shall not make any cash earnest money
deposits when there exists a Default or an Event of Default;
(xix) Liens on property or assets in existence at the time
such property or assets are acquired pursuant to Section 9.02(ix) or
(xiii), provided that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(xii)(y) and (y) such
Liens are not incurred in connection with, or in contemplation or
anticipation of, such acquisition and do not attach to any other asset
of Parent or any of its Subsidiaries;
(xx) Liens created pursuant to, and securing, the CCI
Intercompany Loan;
(xxi) Liens created in connection with, and securing, the
Chancellor Loan; and
(xxii) Liens not otherwise permitted under this Section 9.01
to the extent attaching to properties and assets with an aggregate
fair market value not in excess of, and securing liabilities not in
excess of, $20,000,000 in the aggregate at any time outstanding.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or merge, consolidate, convey, sell, lease or
otherwise dispose of all or any part of its property or assets, or enter into
any sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures made by the Borrower and its
Subsidiaries shall be permitted to the extent not in violation of
Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the
ordinary course of business, sell, lease or otherwise dispose of any
assets provided that the aggregate Net Sale Proceeds of all assets
subject to sales or other dispositions pursuant to this clause (ii)
shall not exceed $10,000,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by
Section 9.05;
(iv) each of the Borrower and its Subsidiaries may lease
(as lessee) real or personal property in the ordinary course of
business (so long as such lease does not create a Capitalized Lease
Obligation not otherwise permitted by Section 9.04(iv));
(v) each of the Borrower and its Subsidiaries may make
sales or other transfers of airtime, advertising, broadcast time or
other medium of communication in the ordinary course of business and
consistent with past practices;
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(vi) licenses or sublicenses by the Borrower and its
Subsidiaries of software, trademarks and other intellectual property
and general intangibles and licenses, leases or subleases of other
property in the ordinary course of business and which do not
materially interfere with the business of the Borrower or any
Subsidiary;
(vii) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may transfer assets to or lease assets to or acquire or lease
assets from the Borrower or any Wholly-Owned Subsidiary (so long as
the security interests granted pursuant to the Security Documents are
not, in the judgment of the Collateral Agent, adversely affected
thereby) or any Subsidiary of the Borrower may be merged or
consolidated with or into, or be liquidated or dissolved into, the
Borrower or any Wholly-Owned Subsidiary of the Borrower (so long as
the Borrower or such Wholly-Owned Subsidiary is the surviving
corporation);
(viii) (x) the sale or other disposition of Media Assets of
the Borrower shall be permitted for cash at fair market value (as
determined in good faith by the Borrower) so long as the proceeds
thereof are applied in accordance with Section 4.02(e), provided that
the Operating Cash Flow attributable to Media Assets so sold or
disposed of during any period of four consecutive fiscal quarters of
the Borrower shall not, when netted against the Consolidated Operating
Cash Flow attributed to all Media Assets acquired during such period,
exceed 5% of Consolidated Operating Cash Flow for such period and (y)
the acquisition of Reinvestment Assets for consideration not to exceed
the fair market value of such Reinvestment Assets shall be permitted
in accordance with Sections 4.02(e) and 8.13;
(ix) so long as (x) no Default or Event of Default then
exists or would arise therefrom and (y) the Borrower shall be in
compliance with the financial covenants contained in Sections 9.08 and
9.09, with such financial covenants to be calculated on a Pro Forma
Basis, the Borrower may, and may permit its Subsidiaries to,
simultaneously exchange (for reasonably equivalent value, a portion
thereof which may include cash) (A) 100% of the capital stock of any
Subsidiary of such Person (the "Stock Swapped Media Asset") for 100%
of the capital stock of any Person (the "Stock Target Media Asset")
owning Media Assets (each such occurrence a "Stock Swap") or (B) all
or substantially all of the assets of a Media Asset or group of Media
Assets (the "Asset Swapped Media Asset," with each Stock Swapped Media
Asset and Asset Swapped Media Asset, a "Swapped Media Asset") for all
or substantially all of the assets of another Media Asset or group of
Media Assets (the "Asset Target Media Asset," with each Stock Target
Media Asset and each Asset Target Media Asset, a "Target Media Asset")
(each such occurrence a "Media Asset Swap") provided, that at the time
of such Stock Swap or Media Asset Swap, the Borrower and/or such
Subsidiary, and the newly acquired entity, shall comply with Section
8.13, provided further, that any cash proceeds received by Borrower or
any of its Subsidiaries in connection with any such Stock Swap, Media
Asset Swap shall be applied in accordance with the requirements of
Section 4.02(e);
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(x) the Borrower and its Subsidiaries may sell or
discount, accounts receivable arising in the ordinary course of
business (x) which are overdue or (y) which the Borrower may
reasonably determine are difficult to collect, but only in connection
with the compromise or collection thereof consistent with customary
industry practice (and not as part of any bulk sale or financing of
receivables);
(xi) transfers of condemned property to the respective
governmental authority or agency that have condemned same (whether by
deed in lieu of condemnation or otherwise), and transfers of
properties that have been subject to a casualty to the respective
insurer of such property or its designee as part of an insurance
settlement, so long as the proceeds thereof are applied as required by
Section 4.02(g);
(xii) each of the Borrower and its Subsidiaries may in the
ordinary course of business sell or otherwise dispose of equipment
which, in the reasonable judgment of such Person, is obsolete, worn
out or otherwise no longer useful, in the conduct of such Person's
business;
(xiii) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) the Borrower shall
demonstrate compliance with the financial covenants contained in
Sections 9.08 and 9.09 with such financial covenants to be calculated
on a Pro Forma Basis, the Borrower or any of its Wholly-Owned
Subsidiaries may acquire additional Media Assets or 100% of the
capital stock of any Person that owns Media Assets (any such
acquisition permitted pursuant to this clause (xiii), a "Permitted
Section 9.02(xiii) Acquisition"), provided, that (i) if such
acquisition is structured as a stock acquisition, then either (A) the
Person so acquired becomes a Wholly-Owned Subsidiary (direct or
indirect) of the Borrower or (B) such Person is merged with and into
the Borrower or a Wholly-Owned Subsidiary of the Borrower (with the
Borrower or such Wholly-Owned Subsidiary being the surviving
corporation of such merger), and, in any case, all of the provisions
of Section 8.13 have been complied with in respect of such Person,
(ii) the Borrower delivers detailed projections and other information
reasonably requested by the Administrative Agent or the Required
Banks, (iii) any Liens or Indebtedness assumed or incurred in
connection with such acquisition are otherwise permitted under Section
9.01 or 9.04, as the case may be, (iv) immediately after giving effect
to each such Permitted Section 9.02(xiii) Acquisition, the Total
Unutilized Revolving Loan Commitment shall be equal to at least
$75,000,000, and (v) any such Permitted Section 9.02(xiii) Acquisition
involving an expenditure (including, without limitation, earn-out,
non-compete or deferred compensation arrangements and transaction
expenses) by the Borrower and its Wholly-Owned Subsidiaries in excess
of $200,000,000 shall not be consummated without the prior written
consent of the Required Banks;
(xiv) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may (i) sell assets or (ii) make a capital contribution by
transferring assets, in each case to any Non-Controlled Entity so long
as (x) the fair market value of all assets so sold or transferred (as
determined in good faith by the Borrower) to all such Non-Controlled
Entities does
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not exceed $200,000,000, (y) no Default or Event of Default then
exists or would result therefrom and (z) the Borrower or such
Wholly-Owned Subsidiary applies the full amount of the Net Sale
Proceeds therefrom as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Section 4.02(e);
(xv) the Capstar Disposition shall be permitted;
(xvi) the CCI-Capstar Acquisition shall be permitted;
(xvii) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) the Borrower shall
demonstrate compliance with the financial covenants contained in
Sections 9.08 and 9.09 with such financial covenants to be calculated
on a Pro Forma Basis, the Borrower or any of its Wholly-Owned
Subsidiaries may consummate the station exchanges, sales and
acquisitions contemplated in the Chancellor Letter Agreement; and
(xviii) the Pending Acquisitions shall be permitted.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 9.02 (other than clause (vii) hereof), such Collateral shall be
sold free and clear of the Liens created by the Security Documents, and the
Administrative Agent and Collateral Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.
9.03 Dividends. Parent shall not, and shall not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to
Parent or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to
the Borrower or any Wholly-Owned Subsidiary of the Borrower so long as
any such Dividends paid by a non-Wholly-Owned Subsidiary of the
Borrower are paid on a pro rata basis to such Subsidiary's
shareholders generally (based on the relative holdings of the equity
interest or interests in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary);
(ii) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Holdings or
Parent, as the case may be, to pay, its operating expenses incurred in
the ordinary course of business and other corporate overhead costs and
expenses (including, without limitation, legal and accounting expenses
and similar expenses) in a maximum principal amount of $20,000,000 per
annum;
(iii) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Parent or
Holdings, as the case may be, to (A) pay management fees or
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executive compensation to the extent such management fees or
executive compensation are permitted by Section 9.06(v) and (vi), and
pursuant to the Monitoring and Oversight Agreements, to the extent
permitted pursuant to Section 9.06(iv) and (B) repurchase Parent
Common Stock and/or options to purchase Parent Common Stock held by
(x) directors, executives, officers, members of management, or
employees of Parent, Holdings, the Borrower or any of their respective
Subsidiaries, or (y) other stockholders of Parent so long as the
purpose of such purchase is to acquire Parent Common Stock for
reissuance to new employees of Parent and its Subsidiaries to the
extent so reissued within 12 months of any such purchase so long as
the aggregate amount of cash expended by Parent pursuant to subclause
(B) of this clause (iii) shall not exceed $25,000,000 in any fiscal
year or $50,000,000 in the aggregate (plus the amount of cash proceeds
paid by any new employee in consideration for reissuance of Parent
Common Stock repurchased by Parent to the extent received by Parent
within 12 months following any such repurchase), so long as in the
case of subclause (B) of this clause (iii), no Default or Event of
Default exists or would result therefrom;
(iv) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Parent or
Holdings, as the case may be, to pay, franchise taxes and federal,
state and local income taxes and interest, and penalties with respect
thereto, if any, payable by Parent or Holdings, as the case may be,
provided that any refund shall be promptly returned by Parent or
Holdings to the Borrower;
(v) the Borrower may pay cash Dividends to Holdings so
long as Holdings promptly uses such proceeds to pay cash Dividends to
Parent to enable Parent to pay cash Dividends to redeem fractional
shares of Parent Common Stock so long as the aggregate amount thereof
does not exceed $100,000;
(vi) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) such payment of cash
Dividends is permitted under the Borrower's 9 1/4% Senior Subordinated
Note Indenture and any other indenture, certificate of designation or
other agreement which may restrict such payments, the Borrower may pay
cash Dividends to Holdings for the purpose of making, so long as
Holdings promptly uses all such proceeds to make, regularly scheduled
interest payments on the Holdings' Senior Notes (it being understood
that no interest payments shall be made prior to August 1, 2002);
(vii) Holdings may pay regularly scheduled Dividends on its
Senior Exchangeable Preferred Stock pursuant to the terms thereof
solely through the issuance of additional shares of Senior
Exchangeable Preferred Stock, except as otherwise permitted by clauses
(viii) and (ix) below;
(viii) so long as no Default or Event of Default then exists
or would result therefrom, the Borrower may pay cash Dividends to
Holdings after July 1, 2002 for the
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purpose of paying, so long as all such proceeds are promptly used by
Holdings to pay, cash Dividends on its Senior Exchangeable Preferred
Stock in lieu of issuing fractional shares of Senior Exchangeable
Preferred Stock;
(ix) so long as (w) no Default or Event of Default then
exists or would result therefrom, (x) Borrower establishes compliance
with the financial covenants contained in Sections 9.08 and 9.09, with
such financial covenants to be calculated on a Pro Forma Basis, (y)
the Leverage Ratio on the date of payment thereof is less than or
equal to 5.0:1.0 and (z) such payment of cash Dividends is permitted
under Holdings' Senior Note Indenture, the Borrower's 9 1/4% Senior
Subordinated Note Indenture, Holdings' Subordinated Exchange
Debentures Indenture and any other indenture, certificate of
designation or other agreement which may restrict such payments, the
Borrower may pay cash Dividends to Holdings for the purpose of paying,
so long as Holdings promptly uses all such proceeds to pay, regularly
scheduled Dividends on its Senior Exchangeable Preferred Stock;
(x) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) such payment of cash
Dividends is permitted under the Holdings' Senior Note Indenture, the
Borrower's 9 1/4% Senior Subordinated Note Indenture, the Holdings'
Subordinated Exchange Debentures Indenture and any other indenture,
certificate of designation or other agreement which may restrict such
payments, the Borrower may pay cash Dividends to Holdings so long as
Holdings promptly uses such proceeds to pay cash Dividends to Parent
to enable Parent to cure defaults or make principal or interest
payments under any Non-Controlled Entity Credit Facility or to satisfy
its obligations under the Limited Guaranty; provided that the
aggregate amount of such cash Dividends shall not exceed $25,000,000;
(xi) so long as no Default or Event of Default then exists
or would result therefrom, the Borrower may pay cash Dividends to
Holdings so long as Holdings promptly uses the proceeds therefrom to
pay cash Dividends to Parent to enable Parent to make loans or
advances as provided in Section 9.05(xix);
(xii) so long as no Default or Event of Default then exists
or would result therefrom, the Borrower may pay cash Dividends to
Holdings so long as Holdings promptly uses such proceeds to pay cash
Dividends to Parent to enable Parent to make mandatory principal and
interest cash payments on the Chancellor Loan;
(xiii) CCI may pay regularly scheduled Dividends on its 12
5/8% Series E Cumulative Exchangeable Preferred Stock pursuant to the
terms thereof solely through the issuance of additional shares of CCI
12 5/8% Series E Cumulative Exchangeable Preferred Stock, except as
otherwise permitted by clause (xiv) below;
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(xiv) so long as no Default or Event of Default then exists
or would result therefrom, CCI may pay accruing cash dividends and
interest payments with respect to the CCI 12 5/8% Series E Cumulative
Exchangeable Preferred Stock after January 15, 2002;
(xv) CCI may pay, on June 1, 1998, a cash Dividend in an
amount up to $2,500,000 with respect to its 6 1/2% Series D
Cumulative Convertible Preferred Stock due May 31, 2007; and
(xvi) the CCI Redemptions shall be permitted.
9.04 Indebtedness. Parent will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and
the other Credit Documents;
(ii) Indebtedness existing on the Initial Borrowing Date
shall be permitted to the extent the same is listed on Schedule IX,
and extensions, replacements, refinancings or renewals thereof,
provided that no such extension, replacement, refinancing or renewal
shall increase the principal amount thereof;
(iii) Indebtedness under Interest Rate Protection
Agreements to the extent entered into pursuant to Section 9.05;
(iv) Indebtedness evidenced by Capitalized Lease
Obligations to the extent permitted pursuant to Section 9.07;
(v) Indebtedness subject to Liens permitted under Section
9.01(viii);
(vi) Indebtedness of Holdings incurred under the Holdings'
Senior Notes in an aggregate principal amount not to exceed
$277,000,000 (less any repayments of principal thereof);
(vii) so long as no Default or Event of Default then exists
or would arise therefrom, with the consent of the Total Supermajority
Banks, Holdings may exchange all of the issued and outstanding Senior
Exchangeable Preferred Stock for Holdings' Subordinated Exchange
Debentures in accordance with the terms of the Senior Exchangeable
Preferred Stock Documents;
(viii) Indebtedness incurred pursuant to the Chancellor
Loan;
(ix) Indebtedness of the Borrower incurred under the
Borrower's 9 1/4% Senior Subordinated Notes in an aggregate principal
amount not to exceed $200,000,000 (less any repayments of principal
thereof);
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(x) Contingent Obligations of the Borrower or any
Subsidiary of the Borrower as a guarantor of the obligations of the
lessee under any lease pursuant to which the Borrower or such
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(xi) intercompany Indebtedness of any Wholly-Owned
Subsidiary of the Borrower owing to the Borrower or any other
Wholly-Owned Subsidiary of the Borrower, or of the Borrower owing to
any Wholly-Owned Subsidiary of the Borrower, to the extent permitted
by Section 9.05(x);
(xii) (x) unsecured Indebtedness of the Borrower and its
Subsidiaries owing to the seller in any acquisition permitted pursuant
to Section 9.02(ix) in an aggregate principal amount not to exceed
$20,000,000 at any time outstanding or (y) Indebtedness of the
Borrower and its Subsidiaries assumed in connection with any
acquisition of an asset permitted pursuant to Section 9.02(ix)
securing such Indebtedness in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding, provided that such
Indebtedness was not incurred in connection with, or in anticipation
or contemplation of, such acquisition;
(xiii) Contingent Obligations of the Borrower or any of its
Subsidiaries pursuant to its guaranty of Indebtedness permitted
pursuant to Section 9.04(ii) existing on the Initial Borrowing Date
and extensions, replacements, refinancings and renewals thereof,
provided that no such extension, replacement, refinancing or renewal
shall (x) amend, modify or supplement the subordination provisions, if
any, contained in such guaranty in a manner adverse to interests of
the Banks or (y) increase the principal amount of such Indebtedness
guaranteed by the original guaranty;
(xiv) so long as (i) the Borrower shall have delivered a
certificate of an Authorized Officer of the Borrower certifying that,
to the best of such officer's knowledge, (x) no Default or Event of
Default then exists (or would result from the incurrence of the
additional Indebtedness contemplated by this Section 9.04(xiv)), and
(y) all representations and warranties herein or in any other Credit
Document are true and correct in all material respects with the same
effect as if such representations and warranties had been made on the
date of the incurrence of Indebtedness contemplated by this clause
9.04(xiv) (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of
such specified date) and (ii) new Notes and the documentation
necessary to incur such Indebtedness are delivered in form and
substance satisfactory to the Administrative Agent pursuant to
Sections 13.04 and 13.12, then the Borrower may increase the Total
Revolving Loan Commitment, in whole or in part, by an aggregate amount
not to exceed $200,000,000 with the consent of the Banks providing
such additional amount (and no other Banks);
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(xv) Indebtedness of Parent, Holdings or the Borrower, as
the case may be, arising under the Limited Guaranties in an aggregate
amount not to exceed $200,000,000 (less any payments made in respect
of its obligations under any Limited Guaranty);
(xvi) CCI may exchange all of the issued and outstanding
CCI 12 5/8% Senior E Cumulative Exchangeable Preferred Stock for CCI
12 5/8% Senior Holdings' Subordinated Exchange Debentures in
accordance with the terms of the CCI Senior Exchangeable Preferred
Stock Documents;
(xvii) Indebtedness (x) of CCI evidenced by the CCI Existing
10 3/4% Senior Subordinated Notes in an aggregate principal amount
not to exceed $325,600,000 (less any repayments of principal thereof),
(y) arising under guaranties by the Subsidiaries of CCI of the
obligations of CCI under the CCI 10 3/4% Existing Senior Subordinated
Notes and (z) of CCI evidenced by the CCI 11 3/8% Senior Subordinated
Notes in an aggregate principal amount not to exceed $600,000 (less
any repayments of principal thereof);
(xviii) In addition to the foregoing Indebtedness, the
Borrower shall be permitted to incur Indebtedness evidenced by
subordinated notes in an aggregate principal amount not to exceed
$250,000,000 so long as (x) no Default or Event of Default then exists
or would result therefrom and (y) the terms and conditions of such new
subordinated notes are, as determined by the Administrative Agent in
its sole discretion, substantially similar to the terms and conditions
of the Borrower's 9 1/4% Senior Subordinated Notes;
(xix) Parent, Holdings and/or the Borrower may refinance
any then outstanding CCI's Existing 10 3/4% Senior Subordinated
Notes, CCI's 11 3/8% Senior Subordinated Notes and CCI's 12 5/8%
Series E Cumulative Exchangeable Preferred Stock through the
incurrence of subordinated indebtedness so long as (x) no Default or
Event of Default then exists or would result therefrom, (y) the amount
of refinancing Indebtedness incurred pursuant to this clause (xix)
does not exceed the sum of the aggregate principal amount of CCI's 10
3/4% Existing Senior Subordinated Notes 11 3/8% Senior Subordinated
Notes and the aggregate liquidation preference of CCI's 12 5/8% Series
E Cumulative Exchangeable Preferred Stock being refinanced plus
premiums actually paid thereon and reasonable fees and expenses
incurred in connection with such refinancing and (z) the terms and
conditions of such subordinated indebtedness are satisfactory to the
Administrative Agent; and
(xx) additional Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted under this Section 9.04 not to
exceed $50,000,000 in aggregate principal amount outstanding at any
time.
9.05 Advances, Investments and Loans. Parent will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
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otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents, except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and
hold accounts receivables owing to any of them, if created or acquired
in the ordinary course of business and payable or dischargeable in
accordance with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and
hold cash and Cash Equivalents, provided that during any time that
Revolving Loans of Non- Defaulting Banks are outstanding, the
aggregate amount of cash and Cash Equivalents permitted to be held by
the Borrower and its Subsidiaries shall not exceed $10,000,000 for any
period of fifteen consecutive days (exclusive of any cash held by the
Borrower as permitted by Sections 9.01(xviii));
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to officers, directors and
employees of Parent and its Subsidiaries so long as the aggregate
principal amount thereof at any time outstanding (determined without
regard to any write-downs or write-offs of such loans and advances)
shall not exceed $10,000,000 (subject to any restrictions contained in
the Borrower's 9 1/4% Senior Subordinated Note Indenture);
(iv) the Borrower may enter into Interest Rate Protection
Agreements on terms reasonably satisfactory to the Administrative
Agent;
(v) Parent may repurchase Parent Common Stock to the
extent permitted by Section 9.03;
(vi) Parent and any of its Subsidiaries may make
investments in accordance with Section 4.02(e) (including investments
necessary to form Subsidiaries under Section 9.14);
(vii) promissory notes and other similar non-cash
consideration received by the Borrower and its Subsidiaries in
connection with dispositions permitted by Section 9.02 so long as the
aggregate principal amount thereof does not exceed $10,000,000 at any
one time outstanding;
(viii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(ix) investments by the Borrower in any Wholly-Owned
Subsidiary;
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(x) any Wholly-Owned Subsidiary of the Borrower may make
intercompany loans and advances to the Borrower or any other
Wholly-Owned Subsidiary and the Borrower may make intercompany loans
and advances to any of its Wholly-Owned Subsidiaries (including,
without limitation, the CCI Intercompany Loan), provided that if such
intercompany loans are evidenced by an intercompany promissory note,
such note is pledged by the Borrower or such Wholly-Owned Subsidiary
as Collateral pursuant to the Pledge Agreement;
(xi) investments by the Borrower or any of its
Subsidiaries to the extent permitted by Section 9.07;
(xii) advances, loans and investments made by the Borrower
and its Subsidiaries in existence on the Initial Borrowing Date and
set forth on Schedule X shall be permitted, without giving effect to
any additions thereto or replacements thereof;
(xiii) guarantees of Indebtedness made by Parent or any of
its Subsidiaries to the extent otherwise permitted by Section 9.04;
(xiv) investments permitted pursuant to Section 9.02;
(xv) investments pursuant to capital calls on Southern
Star Communications, Inc. (formerly known as Osborn Communications
Corporation) as provided in the Stockholders' Agreement, dated April
20, 1989, among Ruth Communications Corporation, Southern Star
Communications, Inc. (formerly known as Osborn Communications
Corporation) and Ray Broadcasting, Inc., not to exceed $1,200,000;
(xvi) a loan by the Borrower or any of its Subsidiaries to
Davis Broadcasting in an aggregate principal amount not to exceed
$10,000,000 in connection with the proposed disposition of radio
stations located in Lynchburg and Roanoke, Virginia;
(xvii) in addition to investments permitted by clauses (i)
through (xvi) above and clauses (xviii) through (xxii) below of this
Section 9.05, the Borrower and its Subsidiaries may make additional
loans, advances and investments in an aggregate principal amount not
to exceed $10,000,000 at any time outstanding;
(xviii) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may make cash capital contributions to any Non-Controlled
Entity so long as (x) the aggregate amount of all such cash capital
contributions does not exceed $10,000,000 and (x) no Default or Event
of Default then exists or would result therefrom;
(xix) Parent may make loans and advances to any
Non-Controlled Entity to enable such Non-Controlled Entity to purchase
assets from the Borrower or any Wholly-Owned Subsidiary of the
Borrower so long as (v) no Default or Event of Default then exists or
would result therefrom, (w) the aggregate outstanding principal amount
of all loans and advances made pursuant to this clause (xix) shall not
exceed $50,000,000 (determined
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without regard to any write-downs or write-offs of such loans or
advances) at any time, (x) each such loan or advance shall be
evidenced by a Parent Note, (y) each such Parent Note shall be pledged
to the Collateral Agent pursuant to the Pledge Agreement and (z) any
interest payments or any prepayments or repayments of principal
received in respect of any Parent Note shall be immediately
contributed (directly or indirectly) to the capital of the Borrower
and the Borrower shall promptly use such proceeds to repay outstanding
Revolving Loans (without a corresponding reduction to the Total
Revolving Loan Commitment);
(xx) Parent may make investments in Holdings and Holdings
may make investments in the Borrower;
(xxi) promissory notes and other similar non-cash
consideration received by RKZ Television, Inc. in connection with the
RKZ Disposition so long as the aggregate principal amount thereof does
not exceed $3,138,000;
(xxii) loans or reimbursement obligations owing from R.
Steven Hicks to Parent in connection with the Round Rock radio station
construction permit in an amount not to exceed $10,000,000; and
(xxiii) Parent or any of its Subsidiaries may make a loan or
loans to any trustee under a trust agreement relating to an assignment
of Radio Stations and their related assets to a trust in order to
comply with the Communications Act of 1934, as amended, and the rules
and regulations promulgated thereunder, in an aggregate principal
amount not to exceed $5,000,000.
9.06 Transactions with Affiliates. Parent will not, and will
not permit any of its Subsidiaries to enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Parent or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Parent or such Subsidiary as would reasonably be obtained by Parent or such
Subsidiary at that time in a comparable arm's- length transaction with a Person
other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in
Section 9.03;
(ii) loans may be made and other transactions may be
entered into by the Borrower and its Subsidiaries to the extent
permitted by Sections 9.02, 9.04 and 9.05;
(iii) customary fees, indemnification and reimbursement of
expenses may be paid to directors of Parent;
(iv) Parent or, to the extent not paid by Parent, Holdings
or the Borrower may pay to Hicks, Muse & Co. Partners, L.P., its
Affiliates or any successor thereto controlled by Jack D. Furst,
Charles W. Tate, Thomas O. Hicks and/or John R. Muse, the amounts set
forth in the Monitoring and Oversight Agreement dated as of July 1,
1997, between
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Parent and Hicks, Muse & Co. Partners, L.P., the Financial Advisory
Agreement dated as of July 1, 1997, between Hicks, Muse & Co.
Partners, L.P. and Parent, the Monitoring and Oversight Agreement
dated as of October 16, 1996, between Holdings and Hicks, Muse & Co.
Partners, L.P. and the Financial Advisory Agreement dated as of
October 16, 1996, between Holdings and Hicks, Muse & Co. Partners,
L.P., in each case in the form delivered to the Banks on or prior to
the Initial Borrowing Date, as same may be modified thereafter but
without giving effect to any modifications thereto which in any way
adversely affects the interests of the Banks (including, without
limitation, by increasing in any respect the costs or liabilities of
Parent or any of its Subsidiaries) without the consent of the
Administrative Agent and the Required Banks (the "Monitoring and
Oversight Agreements");
(v) Parent and its Subsidiaries may enter into and make
payments pursuant to employment arrangements with executive officers
and senior management employees in the ordinary course of business;
(vi) Parent and its Subsidiaries may make payments
pursuant to Employment Agreements existing on the Initial Borrowing
Date or thereafter pursuant to Employment Agreements with executive
officers and senior management employees entered into in the ordinary
course of business;
(vii) Parent and its Subsidiaries may make payments
pursuant to the Tax Sharing Agreements;
(viii) Parent may make capital contributions to Holdings and
Holdings may make capital contributions to the Borrower; and
(ix) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may make capital contributions to (A) a Non-Controlled Entity
as provided in Sections 9.02(xiv) and 9.05(xviii) or (B) to any of its
Wholly-Owned Subsidiaries.
Except as specifically provided above, no management or
similar fees shall be paid or payable by Parent or any of its Subsidiaries to
any Person other than the Borrower.
9.07 Capital Expenditures. (a) Parent will not, and will
not permit any of its Subsidiaries to, make Capital Expenditures, except that
the Borrower and its Subsidiaries may make Capital Expenditures in any fiscal
year (taken as one accounting period) so long as the amount of such Capital
Expenditures made during such fiscal year does not exceed 4.5% of Parent's
adjusted gross revenue for the immediately preceding fiscal year determined on
a Pro Forma Basis after giving effect to any acquisitions and dispositions
permitted by the Agreement.
(b) Notwithstanding anything to the contrary contained in
clause (a) above, to the extent that the Capital Expenditures made by the
Borrower and its Subsidiaries in any period set forth in clause (a) above are
less than the amount permitted to be made in such period (without
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giving effect to any additional amount available as a result of this clause (b)
or clause (c) below), the amount of such difference may be carried forward and
used to make Capital Expenditures in the immediately succeeding fiscal year of
the Borrower.
(c) In addition to the Capital Expenditures permitted
pursuant to preceding clauses (a) and (b), the Borrower and its Subsidiaries
may make additional Capital Expenditures consisting of (i) the reinvestment of
Net Sale Proceeds from asset sales not required to be applied to repay Loans
pursuant to Section 4.02(e) and (ii) the reinvestment of insurance proceeds
from Recovery Events not required to be applied to repay Loans pursuant to
Section 4.02(g), provided that in each case any proceeds that are so used to
make Capital Expenditures pursuant to this clause (c) are, to the extent
required by Section 4.02(e) or (g), as the case may be, used within the period
of time as is set forth in such Section 4.02(e) or (g), as the case may be.
(d) In addition to the Capital Expenditures permitted
pursuant to preceding clauses (a), (b) and (c), the Borrower may make the
Galaxy Systems Capital Expenditures and the Star Systems Capital Expenditures.
9.08 Maximum Leverage Ratio. The Borrower will not permit
the Leverage Ratio at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Effective Date to and including
March 31,1999 7.25:1.00
April 1, 1999 to and including
December 31, 1999 6.75:1.00
January 1, 2000 to and including
December 31, 2000 6.00:1.00
January 2001 to and including
December 31, 2001 5.50:1.00
January 2002 to and including
December 31, 2002 5.00:1.00
January 1, 2003 and thereafter 4:50:1.00
</TABLE>
9.09 Interest Coverage Ratio. The Borrower will not permit
the Interest Coverage Ratio for any Test Period during a period set forth below
to be less than the amount set forth opposite such period below:
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<PAGE> 87
<TABLE>
<CAPTION>
Fiscal Quarter Ratio
-------------- -----
<S> <C>
Effective Date to and including
March 31, 1999 1.50:1.00
April 1, 1999 to and including
December 31, 1999 1.75:1.00
January 1, 2000 to and including
December 31, 2000 2.00:1.00
January 1, 2001 to and including
December 31, 2001 2.50:1.00
January 1, 2002 to and including
December 31, 2002 3:00:1.00
January 1, 2003 and thereafter 3:50:1.00
</TABLE>
9.10 Limitation on Modifications of Certificate of
Incorporation, Partnership Agreement, Limited Liability Company Agreement,
By-Laws and Certain Other Agreements; Limitations of Prepayments and
Modifications of Indebtedness; etc. Parent will not, and will not permit any
of its Subsidiaries to (i) make (or give any notice with respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due), after the issuance thereof, any Holdings' Senior Notes, Holdings'
Subordinated Exchange Debentures or the Borrower's 9 1/4% Senior Subordinated
Notes, (ii) amend or modify, or permit the amendment or modification of any
provision of the Holdings' Senior Note Documents, Senior Exchangeable Preferred
Stock Documents (including as relating to the Holdings' Subordinated Exchange
Debentures), the Borrower's 9 1/4% Senior Subordinated Note Documents, CCI
Exchangeable Preferred Stock Documents (including as relating to the CCI
Exchange Debentures), CCI 10 3/4% Existing Senior Subordinated Notes
Documents, CCI 11 3/8% Senior Subordinated Notes Documents, the Tax Sharing
Agreement, the Chancellor Loan or any documents relating to the CCI
Intercompany Loan (other than (x) amendments or modifications to the Tax
Sharing Agreement which are not materially adverse to the interests of the
Banks and (y) amendments or modifications to the Holdings' Senior Note
Indenture, CCI Exchange Debenture Indenture, the indenture entered into in
connection with the CCI 11 3/8% Senior Subordinated Notes or CCI 10 3/4%
Existing Senior Subordinated Notes Indenture, the Borrower's 9 1/4% Senior
Subordinated Note Indenture, Holdings' Subordinated Exchange Debentures
Indenture or CCI Exchange Debenture Indenture, to the extent that such
amendments or modifications (I) are permitted to be made under the respective
indenture without the consent of the holders of the Holdings' Senior Notes, the
Borrower's 9 1/4% Senior Subordinated Notes, Holdings' Subordinated Exchange
Debentures, CCI Exchange Debenture Indenture, CCI 11 3/8% Senior Subordinated
Notes or CCI Existing 10 3/4% Senior Subordinated Notes Indenture, as the case
may be, and (II) are not materially adverse to the interests of the Banks,) or
(iii) amend, modify or change its certificate or articles of incorporation
(including,
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without limitation, by the filing or modification of any certificate of
designation), partnership agreement, limited liability company agreement or
by-laws, or any agreement entered into by it, as the case may be, with respect
to its capital stock (including any Shareholders' Agreement), partnership
interests or limited liability company interests, or enter into any new
agreement with respect to its capital stock, other than any amendments,
modifications or changes pursuant to this clause or any such new agreements
which do not in any way adversely affect the interests of the Banks.
9.11 Limitation on Certain Restrictions on Subsidiaries.
Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
Subsidiary of the Borrower or (c) transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the Holdings' Senior Note
Documents, (iv) the Borrower's 9 1/4% Senior Subordinated Notes, (v) the
Holdings' Subordinated Exchange Debentures Indenture, (vi) the CCI Exchange
Debenture Indenture, (vii) the CCI 10 3/4% Existing Senior Subordinated Note
Documents, (viii) the Chancellor Loan or any documents related thereto, (ix)
CCI Intercompany Loan or any documents related thereto, (x) CCI 11 3/8% Senior
Subordinated Notes Documents, (xi) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of the Borrower or
any Subsidiary of the Borrower, (xii) customary provisions restricting
assignment of any licensing agreement entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business and (xiii)
customary restrictions in any industrial revenue bond, purchase money
financing, capital lease or any other agreement permitted by this Agreement.
9.12 Limitation on Issuance of Capital Stock. (a) Parent
will not issue (i) any preferred stock or (ii) any class of redeemable common
stock, other than (x) Qualified Capital Stock and (y) Permitted Issuances.
(b) Parent will not permit Holdings or any other Subsidiary
to issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do
not decrease the percentage ownership of Parent or any of its Subsidiaries in
any class of the capital stock of Holdings or such Subsidiary, (iii) to qualify
directors to the extent required by applicable law, (iv) the Borrower may issue
additional shares of common stock to Holdings, so long as all such shares are
immediately delivered to the Collateral Agent and pledged pursuant to the
Pledge Agreement, (v) in connection with the creation of Subsidiaries of the
Borrower in compliance with Section 9.14, (vi) in the case of Holdings, for the
Senior Exchangeable
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Preferred Stock and (viii) in the case of CCI, for the CCI 12 5/8% Series E
Cumulative Exchangeable Preferred Stock.
9.13 Business. (a) Parent will not, and will not permit any
of its Subsidiaries to, engage (directly or indirectly) in any business other
than any business that creates, communicates, licenses, markets, leases or
disseminates ideas, information or entertainment, together with all businesses
related thereto, and any business that generates a significant portion of its
business from advertising.
(b) From the Initial Borrowing Date to the date upon which
the certificate(s) evidencing 100% of the outstanding capital stock of Atlantic
City Broadcasting Corp. has been delivered by the Borrower or any of its
Subsidiaries to the Collateral Agent, Parent will not, and will not permit any
of its Subsidiaries to, transfer or lease any assets, or make any capital
contributions, to Atlantic City Broadcasting Corp. and Atlantic City
Broadcasting Corp. shall engage in no significant business activities and
shall have no material assets (other than approximately $10,000 in cash) or
liabilities (other than Indebtedness owing to AMRESCO Institutional, Inc.).
9.14 Limitation on Creation of Subsidiaries. Parent shall
not and will not permit any Subsidiary to establish, create or acquire any
additional Subsidiaries after the Initial Borrowing Date without the prior
written consent of the Required Banks, except that the Borrower or any
Wholly-Owned Subsidiary of the Borrower may create or otherwise acquire new
Subsidiaries in connection with the acquisition of Media Assets or Persons that
own Media Assets in compliance with Sections 4.02(e), 9.02(ix), 9.02(xiii) or
9.05(vi).
9.15 No Other Designated Senior Indebtedness. Parent will
not, and will not permit any Subsidiary to, designate any Indebtedness (other
than the Obligations) as "Designated Senior Indebtedness" for purposes of, and
as defined in, the Borrower's 9 1/4% Senior Subordinated Indenture or the
Holdings' Subordinated Exchange Debentures Indenture.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the
payment when due of any principal of any Loan or any Note or (ii) default, and
such default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder, thereunder or under any other Credit
Document; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
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10.03 Covenants. Parent, Holdings or the Borrower shall (i)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 8.01(g)(i), 8.08, 8.13, or Section 9 or (ii)
default in the due performance or observance by it of any other term, covenant
or agreement contained in this Agreement (other than as described in Section
10.01, 10.02 or 10.03(i)), and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Administrative
Agent, any Other Agent or any Bank; or
10.04 Default Under Other Agreements. Parent or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of Parent or any of its Subsidiaries
shall be declared to be due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment, prior to the stated maturity
thereof, provided that it shall not be a Default or Event of Default under this
Section 10.04 unless the aggregate principal amount of all Indebtedness as
described in preceding clauses (i) through (iii), inclusive, is at least
$10,000,000; or
10.05 Bankruptcy, etc. Parent or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against Parent or any of its Subsidiaries and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of Parent or any of
its Subsidiaries, or Parent or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Parent or any of
its Subsidiaries, or there is commenced against Parent or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or Parent or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Parent or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Parent or any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action is taken by Parent or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
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10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or, in the reasonable opinion
of the Required Banks, is likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, a contribution required to be made to a Plan has not been
made, Parent or any of its Subsidiaries or any ERISA Affiliate has incurred or
is likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code, or Parent or any of its
Subsidiaries has incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA) which
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or employee pension benefit plans (as defined
in Section 3(2) of ERISA); (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; and (c) in each case in clauses
(a) and (b) above, such lien, security interest or liability, in the reasonable
opinion of the Required Banks, will have a material adverse effect upon the
business, operations, property, assets, liabilities or condition (financial or
otherwise) Parent and its Subsidiaries taken as a whole or of Holdings and its
Subsidiaries taken as a whole or of the Borrower and its Subsidiaries taken as
a whole; or
10.07 Security Documents. At any time after the execution
and delivery thereof, any of the Security Documents shall cease to be in full
force and effect, or shall cease in any material respect to give the Collateral
Agent for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral), in favor
of the Collateral Agent, superior to and prior to the rights of all third
Persons (except as permitted by Section 9.01), and subject to no other Liens
(except as permitted by Section 9.01), or any Credit Party shall default in the
due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any of the Security Documents and such
default shall continue beyond any grace period specifically applicable thereto
pursuant to the terms of such Security Document; or
10.08 Guaranty. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor or other party
thereunder (other than in accordance with the express terms thereof) or any
Guarantor or other party thereunder or Person acting by or on behalf of such
Guarantor or such party shall deny or disaffirm such Guarantor's or such
party's obligations under the relevant Guaranty, or any Guarantor or such party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against Parent or any of its Subsidiaries involving in the aggregate
for Parent and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such
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judgments and decrees either shall be final and non-appealable or shall not be
vacated, discharged or stayed or bonded pending appeal for any period of 60
consecutive days, and the aggregate amount of all such judgments exceeds
$10,000,000; or
10.10 Change of Ownership. A Change of Ownership shall
occur; or
10.11 Non-Controlled Entity Credit Facility. There shall
exist (i) a default in any payment of principal, interest, fees or other
amounts owing under any Non-Controlled Entity Credit Facility beyond the period
of grace, if any, provided in such Non-Controlled Entity Credit Facility, or
(ii) a default in the observance or performance of any agreement or condition
contained in any Non-Controlled Entity Credit Facility or any other agreement
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
permit the holder or holders of the Indebtedness under such Non-Controlled
Entity Credit Facility (or trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is
required), the Indebtedness under such Non-Controlled Entity Credit Facility to
become due prior to its stated maturity, or (iii) Indebtedness (in excess of
$2,500,000) under any Non-Controlled Entity Credit Facility shall be declared
to be due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Other Agent, any Bank or the holder of any Note to
enforce its claims against any Credit Party (provided that, if an Event of
Default specified in Section 10.05 shall occur with respect to the Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent to the Borrower as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice): (i) declare
the Total Commitment terminated, whereupon all Commitments of each Bank shall
forthwith terminate immediately and any Commitment Commission shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder (including Unpaid Drawings) and thereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; (iv) direct the Borrower to pay
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to
the Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as
is equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; (v) enforce, as Collateral Agent,
all of the Liens and security interests created pursuant to the Security
Documents, and (vi) apply any cash or Cash Equivalents held as collateral
pursuant to Section 4.02 in satisfaction of the Obligations.
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SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Term Loan" shall have the meaning provided in Section
1.01(a)(i).
"A Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I hereto directly below the
column entitled "A Term Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to
Section 1.13 or 13.04(b).
"A Term Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a)(ii).
"A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"A Term Loan Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(i).
"A Term Note" shall have the meaning provided in Section
1.05(a)(i).
"A TL Percentage" shall mean, at any time of determination
thereof, a fraction (expressed as a percentage) the numerator of which is equal
to the sum of (x) the aggregate principal amount of A Term Loans outstanding at
such time, (y) the Total A Term Loan Commitment at such time and (z) the Total
Additional A Term Loan Commitment at such time and the denominator of which is
equal to the sum of (x) the aggregate principal amount of Term Loans
outstanding at such time, (y) the Total A Term Loan Commitment at such time and
(z) the Total Additional A Term Loan Commitment at such time.
"Acquisition" shall mean the acquisition by SBI of all of the
capital stock (excluding the outstanding shares of CCI's 12 5/8% Series E
Cumulative Exchangeable Preferred Stock) of CCI pursuant to, and in accordance
with the terms of, the Acquisition Agreement.
"Acquisition Agreement" shall mean the Agreement and Plan of
Merger, dated as of August 24, 1997, among SBI, SBI Radio Acquisition
Corporation and CCI.
"Acquisition Documents" shall mean the Acquisition Agreement
and all other agreements and documents relating thereto.
"Additional A Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled
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"Additional A Term Loan Commitment", as the same may be (w) terminated pursuant
to Sections 3.03 and/or 10, (x) adjusted form time to time as a result of
assignments to or from such Bank pursuant to Sections 1.13 and/or 13.04 (b),
(y) increased pursuant to Section 1.14 or (z) terminated by the Borrower after
at least two Business Days' prior written notice to the Administrative Agent at
its Notice Office of such decision to terminate such commitment.
"Additional A Term Loan Percentage" shall mean, at any time of
determination thereof, a fraction (expressed as a percentage) the numerator of
which is the Total Additional A Term Loan Commitment and the denominator of
which is the Total Additional Term Loan Commitment.
"Additional B Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Additional B Term Loan Commitment," as the same may
be (w) terminated pursuant to Sections 3.03 and/or 10, (x) adjusted from time
to time as a result of assignments to or from such Bank pursuant to Sections
1.13 and/or 13.04(b), (y) increased pursuant to Section 1.14 or (z) terminated
by the Borrower after at least two Business Days' prior written notice to the
Administrative Agent at its Notice Office of such decision to terminate such
commitment.
"Additional B Term Loan Percentage" shall mean, at any time of
determination thereof, a fraction (expressed as a percentage) the numerator of
which is the Total Additional B Term Loan Commitment and the denominator of
which is the Total Additional Term Loan Commitment.
"Additional Loans Availability Termination Date" shall mean
May 31, 2001.
"Additional Collateral" shall mean all property (whether real
or personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination)
pursuant to Section 8.13 (which shall in any event exclude any interest in the
FCC Authorizations to the extent prohibited by applicable law).
"Additional Mortgage" shall have the meaning provided in
Section 8.13(b).
"Additional Mortgaged Property" shall have the meaning
provided in Section 8.13(b).
"Additional Security Documents" shall mean all mortgages,
pledge agreements, security agreements and other security documents entered
into pursuant to Section 8.13 with respect to Additional Collateral.
"Additional Term Loan Assumption Agreement" shall mean and
include each Additional Term Loan Assumption Agreement in the form of Exhibit C
hereto executed in accordance with Section 1.14 hereof.
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"Additional Term Loan Assumption Date" shall mean each date
(which in no event shall occur after Additional Loans Availability Termination
Date) on which one or more Additional Term Loan Assumption Agreements are
delivered to the Administrative Agent pursuant to Section 1.14 of this
Agreement.
"Additional Term Loan Commitment Commission" shall have the
meaning provided in Section 3.01(a)(iii).
"Additional Term Loan Commitment" shall mean each Additional A
Term Loan Commitment and each Additional B Term Loan Commitment.
"Additional Term Loans" shall have the meaning provided in
Section 1.14.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of such non-cash items reflected in Adjusted
Consolidated Working Capital) included in arriving at Consolidated Net Income
for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's RL Percentage and (y) at a time when
a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Commitment at such time by the Adjusted Total Revolving
Loan Commitment at such time, it being understood that all references herein to
Revolving Loan Commitments and the Adjusted Total Revolving Loan Commitment at
a time when the Total Revolving Loan Commitment or Adjusted Total Revolving
Loan Commitment, as the case may be, has been terminated shall be references to
the Revolving Loan Commitments or Adjusted Total Revolving Loan Commitment, as
the case may be, in effect immediately prior to such termination, provided that
(A) no Bank's Adjusted RL Percentage shall change upon the occurrence of a Bank
Default from that in effect immediately prior to such Bank Default if after
giving effect to such Bank Default, and any repayment of Revolving Loans at
such time pursuant to Section 4.02(a) or otherwise, the sum of the aggregate
outstanding principal amount of Loans of all Non-Defaulting Banks plus the
Letter of Credit Outstandings, exceed the Adjusted Total Revolving Loan
Commitment; (B) the changes to the Adjusted RL Percentage that would have
become effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Bank Default on which the sum
of the aggregate outstanding principal amount of the
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Revolving Loans of all Non-Defaulting Banks plus the Letter of Credit
Outstandings is equal to or less than the Adjusted Total Revolving Loan
Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted Percentage is
changed pursuant to the preceding clause (B) and (ii) any repayment of such
Bank's Loans, or of Unpaid Drawings with respect to Letters of Credit, that
were made during the period commencing after the date of the relevant Bank
Default and ending on the date of such change to its Adjusted RL Percentage
must be returned to the Borrower as a preferential or similar payment in any
bankruptcy or similar proceeding of the Borrower, then the change to such
Non-Defaulting Bank's Adjusted RL Percentage effected pursuant to said clause
(B) shall be reduced to that positive change, if any, as would have been made
to its Adjusted RL Percentage if (x) such repayments had not been made and (y)
the maximum change to its Adjusted RL Percentage would have resulted in the sum
of the outstanding principal of Loans made by such Bank plus such Bank's new
Adjusted RL Percentage of the outstanding principal amount of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Available Revolving Loan Commitment" shall
mean, at any time, the Total Available Revolving Loan Commitment at such time
less the aggregate Revolving Loan Commitments of all Defaulting Banks at such
time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Banks hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person (including for purposes of Section 9.06 only, all directors, officers
and partners of such Person) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; provided,
however, that for purposes of Section 9.06, an Affiliate of Parent shall
include any Person that directly or indirectly owns more than 10% of any class
of the capital stock of Parent. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and each of the
Other Agents.
"Agreement" shall mean this Credit Agreement, as amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time.
"Applicable Commitment Commission Percentage" shall mean (i)
for the period from the Initial Borrowing Date through but not including the
first Start Date, .50%, and (ii) from and after any Start Date to and including
the corresponding End Date, the respective percentage
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per annum set forth in clause (A), (B) or (C) below if, but only if, as of the
Test Date for such Start Date the applicable condition set forth in clause (A),
(B) or (C) below, as the case may be, is met:
(A) 0.50%, if, but only if, as of the Test Date for such
Start Date the Leverage Ratio for the Test Period ended on such Test
Date shall be greater than 6.0:1.0;
(B) 0.375 if, but only if, as of the Test Date for such
Start Date the Leverage Ratio for the Test Period ended on such Test
Date shall be less than or equal to 6.0:1 but greater than 5.0:1; and
(C) 0.25% if, but only if, as of the Test Date for such
Start Date the Leverage Ratio for the Test Period ended on such Test
Date shall be less than or equal to 5.0:1.
"Applicable Margin" shall mean a percentage per annum (x) for
the period commencing on the Initial Borrowing Date, through, but not
including, the first Start Date, equal to (A) in the case of A Term Loans and
Revolving Loans that are maintained as (i) Base Rate Loans, 1.125%, and (ii) as
Eurodollar Loans, 2.125%, and (B) in the case of B Term Loans that are
maintained as (i) Base Rate Loans, 1.50% and (ii) Eurodollar Loans, 2.50%, and
(y) from and after any Start Date to and including the corresponding End Date,
to be determined according to the Borrower's the Leverage Ratio for such Test
Period as set forth below:
<TABLE>
<CAPTION>
A Term Loans and A Term Loans and
Revolving Loans Revolving Loans B Term Loans B Term Loans
maintained as maintained as maintained as maintained as
Leverage Ratio Base Rate Loans Eurodollar Loans Base Rate Loans Eurodollar Loans
- -------------- --------------- ---------------- --------------- ----------------
<S> <C> <C> <C> <C>
Greater than 6.75:1 1.125% 2.125% 1.50% 2.50%
Greater than 6.5:1 but less
than or equal to 6.75:1 1.00% 2.00% 1.375% 2.375%
Greater than 6.0:l but less
than or equal to 6.5:1 0.875% 1.875% 1.25% 2.25%
Greater than 5.5:1 but less
than or equal to 6.0:1 0.625% 1.625% 1.00% 2.00%
Greater than 5.0:1 but less
than or equal to 5.5:1 0.375% 1.375% 0.75% 1.75%
Greater than 4.5:1 but less
than or equal to 5.0:1 0.125% 1.125% 0.75% 1.75%
Lesser than or equal to 4.5:1 0% 0.875% 0.75% 1.75%
</TABLE>
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; provided that at any time after the date occurring six months after the First
Start Date, the Applicable Margin set forth in the grid above with respect to A
Term Loans, Revolving Loans and B Term Loans shall be reduced (i) in the case
of A Term Loans and Revolving Loans, by 0.125% for a margin corresponding to a
Leverage Ratio that is greater than 6.5:1 or less than or equal to 4.5:1 and by
0.25% for a margin corresponding to a Leverage Ratio that is greater than 4.5:1
but less than or equal to 6.5:1 and (ii) in the case of B Term Loans, by 0.25%,
in each case so long as CCI has repaid in full or has transferred or assigned
to Parent, Holdings or the Borrower all of its obligations under each of the
CCI 10 3/4% Existing Senior Subordinated Notes, the CCI 11 3/8% Senior
Subordinated Notes and the CCI 12 5/8% Series E Cumulative Exchangeable
Preferred Stock (it being understood and agreed, however, that notwithstanding
anything to the contrary contained in this proviso under no circumstances shall
the Applicable Margin (i) for B Term Loans maintained as Eurodollar Loans be
reduced to less than 1.50% and for B Term Loans maintained as Base Rate Loans
be reduced to less than 0.5% and (ii) be less than 0%).
"A/RL Maturity Date" shall mean November 30, 2004.
"Asset Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Asset Target Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit L
(appropriately completed).
"Assuming Bank" shall have the meaning provided in Section
1.14.
"Authorized Officer" of any Credit Party shall mean and
include the Chairman of the Board, the President, the Chief Executive Officer,
any Vice President, the Treasurer, the Secretary, any Assistant Secretary, any
Assistant Treasurer, the Chief Financial Officer or the Controller of such
Credit Party or any other officer of such Credit Party which is designated in
writing to the Administrative Agent and the Issuing Bank by any of the
foregoing officers of such Credit Party as being authorized to give such
notices under this Agreement.
"Available Revolving Loan Commitment" for any Bank shall mean,
at any time, the Revolving Loan Commitment of such Bank as then in effect less
such Bank's RL Percentage of the amount of the Blocked Commitment, if any, at
such time.
"B Term Loan" shall have the meaning provided in Section
1.01(b)(i).
"B Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I hereto directly below the
column entitled "B Term Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from
time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
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adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"B Term Loan Maturity Date" shall mean the May 31, 2005.
"B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"B Term Loan Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b)(ii).
"B Term Note" shall have the meaning provided in Section
1.05(a)(ii).
"B TL Percentage" shall mean, at any time of determination
thereof, a fraction (expressed as a percentage) the numerator of which is equal
to the sum of (x) the aggregate principal amount of B Term Loans outstanding at
such time and (y) the Total Additional B Term Loan Commitment at such time, and
the denominator of which is equal to the sum of (x) the aggregate principal
amount of Term Loans outstanding at such time, (y) the Total A Term Loan
Commitment at such time and (z) the Total Additional Term Loan Commitment at
such time.
"Bank" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Bank" hereunder pursuant to
Sections 1.13 and 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Bank
having notified in writing the Borrower and/or the Administrative Agent that it
does not intend to comply with its obligations under Section 1.01 or 2, in the
case of either clause (i) or (ii), as a result of any takeover of such Bank by
any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1%
in excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Blocked Commitment" shall mean for the period from and
including the date of the sale or disposition of any asset or Recovery Event
resulting in a temporary reduction of the Total Revolving Loan Commitment
pursuant to Section 4.02(e) or (g) through but not including the date on which
all or a part of the net sale proceeds or Reinvestment Amount, as applicable,
for such asset are reinvested pursuant to such Section, as applicable, the
amount of net sale proceeds or proceeds from a Recovery Event, as applicable.
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"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower's 9 1/4% Senior Subordinated Note Documents" shall
mean and include each of the documents and other agreements entered into
(including, without limitation, the Borrower's 9 1/4% Senior Subordinated Note
Indenture) relating to the issuance by the Borrower of the Borrower's 9 1/4%
Senior Subordinated Notes, as in effect on the Effective Date, and as the same
may be modified, supplemented or amended from time to time pursuant to the
terms hereof and thereof.
"Borrower's 9 1/4% Senior Subordinated Note Indenture" shall
mean that certain indenture, dated as of June 17, 1997, among the Borrower, as
issuer, and US Trust Company of Texas, N.A., as Trustee, as in effect on the
Effective Date and as the same may be amended, modified, extended, renewed,
replaced, restated or supplemented from time to time pursuant to the terms
thereof and hereof.
"Borrower's 9 1/4% Senior Subordinated Notes" shall mean the
Borrower's 9 1/4% Series A Senior Subordinated Notes and any Borrower's 9 1/4%
Series B Senior Subordinated Notes issued in exchange therefor in accordance
with the terms of the Borrower's 9 1/4% Senior Subordinated Note Indenture.
"Borrower's 9 1/4% Series A Senior Subordinated Notes" shall
mean the Borrower's 9-1/4% Series A Senior Subordinated Notes due 2007, issued
pursuant to the Borrower's 9 1/4% Senior Subordinated Note Indenture.
"Borrower's 9 1/4% Series B Senior Subordinated Notes" shall
mean the Borrower's 9-1/4% Series B Senior Subordinated Notes due 2007, issued
pursuant to the Borrower's 9 1/4% Senior Subordinated Note Indenture.
"Borrowing" shall mean the borrowing of one Type of Loan from
all the Banks on a pro rata basis on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar
Loans.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in the New York interbank Eurodollar market.
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"Calculation Period" shall mean the Test Period most recently
ended on or prior to the date that any determination is required to be made
hereunder on a Pro Forma Basis.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures (excluding barter transactions effected in the ordinary course
of business consistent with past practices) by such Person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP) and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under GAAP, are or will be required to be capitalized
on the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with GAAP.
"Capstar Disposition" shall mean the sale to third parties by
the Borrower and its Subsidiaries of the radio station assets listed on Part A
of Schedule (xi).
"Capstar Disposition Documents" shall mean all agreements and
documents related to the Capstar Disposition.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank having, or which is
the principal banking subsidiary of a bank holding company organized under the
laws of the United States, any State thereof, the District of Columbia or any
foreign jurisdiction having capital, surplus and undivided profits aggregating
in excess of $200,000,000, with maturities of not more than one year from the
date of acquisition by such Person, (iii) repurchase obligations with a term of
not more than 90 days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications
specified in clause (ii) above, (iv) commercial paper issued by any Person
incorporated in the United States rated at least A-1 or the equivalent thereof
by Standard & Poor's Ratings Group or at least P-1 or the equivalent thereof by
Moody's Investors Service, Inc. and in each case maturing not more than one
year after the date of acquisition by such Person, (v) investments in money
market funds substantially all of whose assets are comprised of securities of
the types described in clauses (i) through (iv) above and (vi) demand deposit
accounts maintained in the ordinary course of business.
"CCI" shall mean Capstar Communications, Inc. (f/k/a SFX
Broadcasting, Inc.), a Delaware corporation.
"CCI 11 3/8% Senior Subordinated Notes" shall mean CCI's
11 3/8% Senior Subordinated Notes due 2000 issued pursuant to that certain
indenture dated as of October 7, 1993 by and between CCI and Chemical Bank, as
Trustee.
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"CCI 11 3/8% Senior Subordinated Notes Documents" shall mean
and include each of the documents and other agreements entered into and
relating to the issuance by CCI of the CCI 11 3/8% Senior Subordinated Notes,
as in effect on the Effective Date and as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"CCI 12 5/8% Series E Cumulative Exchangeable Preferred Stock"
shall mean CCI's 12 5/8% Series E Cumulative Exchangeable Preferred Stock due
2006.
"CCI-Capstar Acquisition" shall mean the sale by the Borrower
and its Subsidiaries to CCI of the radio station assets listed on Part B of
Schedule XI.
"CCI-Capstar Acquisition Documents" shall mean all agreements
and documents related to the CCI-Capstar Acquisition.
"CCI/SFX Entertainment Tax Liability" shall mean the on-going
tax liability of CCI as a result of the spin-off of SFX Entertainment with any
tax payments made by CCI in connection with such tax liability to be reimbursed
(including gross-up) by SFX Entertainment.
"CCI Exchangeable Preferred Stock Documents" shall mean each
documents delivered pursuant to the issuance of the CCI 12 5/8% Series E
Cumulative Exchangeable Preferred Stock due 2006, as in effect on the Initial
Borrowing Date and as the same may be modified, supplemented or amended from
time to time pursuant to the terms hereof and thereof.
"CCI Exchangeable Preferred Stock Redemption" shall have the
meaning provided in Section 5B.01.
"CCI Exchange Debenture Indenture" shall mean that certain
subordinated indenture, dated as of the date of issuance of the CCI Exchange
Debentures and governing such issuance.
"CCI Exchange Debentures" shall mean CCI's 12 5/8% Senior
Subordinated Exchange Debentures due 2006 issued pursuant to the CCI Exchange
Debenture Indenture.
"CCI Existing 10 3/4% Senior Subordinated Note Indenture"
means that certain indenture dated as of May 31, 1996, by and between CCI and
Chemical Bank, as Trustee.
"CCI Existing 10 3/4% Senior Subordinated Notes" shall mean
CCI's 10 3/4% Senior Subordinated Notes due 2006, issued pursuant to the CCI
Existing 10 3/4% Senior Subordinated Note Indenture.
"CCI Existing 10 3/4% Senior Subordinated Notes Documents"
shall mean and include each of the documents and other agreements entered into
(including, without limitation, the CCI Existing 10 3/4% Senior Subordinated
Note Indenture) relating to the issuance by CCI of the CCI Existing 10 3/4%
Senior Subordinated Notes, as in effect on the Effective Date and as the
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same may be entered into, modified, supplemented or amended from time to time
pursuant to the terms hereof and thereof.
"CCI Existing 10 3/4% Senior Subordinated Notes Redemption"
shall have the meaning provided in Section 5B.01.
"CCI Intercompany Loan" shall have the meaning provided in
Section 5A.18.
"CCI Original Credit Facility" shall mean CCI's existing
credit facility pursuant to a Third Amended and Restated Credit Agreement,
dated as of June 23, 1997, among CCI, various financial institutions and The
Bank of New York, as agent, as in effect on the Effective Date.
"CCI Redemptions" shall have the meaning provided in
Section 5B.01.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Chancellor Letter Agreement" shall mean that certain Letter
Agreement dated as of February 20, 1998, between Parent and Chancellor Media
Corporation of Los Angeles, as in effect on the Effective Date.
"Chancellor Loan" shall mean the incurrence by Parent of a
secured loan from Chancellor Media Corporation of Los Angeles in an aggregate
principal amount not to exceed $250,000,000, the net cash proceeds of which
shall be used by Parent to make a capital contribution to Holdings which, in
turn, shall use such cash proceeds to make a capital contribution to the
Borrower.
"Chancellor Loan Documents" shall mean the Chancellor Letter
Agreement and all other agreements and documents related to the Chancellor
Loan.
"Change of Ownership" shall mean (i) Parent shall cease to own
beneficially 100% of the Voting Stock (other than the Senior Exchangeable
Preferred Stock) of Holdings; (ii) Holdings shall cease to own beneficially
100% of the Voting Stock of the Borrower; (iii) if the HM Group shall cease to
have the power, directly or indirectly, to vote or direct the voting of
securities having a majority of the ordinary voting power for the election of
directors of Parent, provided that the occurrence of the foregoing event shall
not be deemed a "Change of Ownership" if (1) no "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), excluding the HM Group, shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than the greater of (x) 15% of the then
outstanding Voting Stock of Parent and (y) the percentage of the then
outstanding Voting Stock of Parent owned by the HM Group and (2) the board of
directors of Parent shall consist of a majority of Continuing Directors;
(iv) HM Group (excluding R. Steven Hicks) shall own beneficially fewer
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shares of outstanding common stock of Parent than R. Steven Hicks; or (v) a
"Change of Control" under and as defined in Holdings' Senior Note Indenture,
the Borrower's 9 1/4% Senior Subordinated Note Indenture or Holdings'
Subordinated Exchange Debentures Indenture shall have occurred.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in effect
at the Effective Date, and to any subsequent provision of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
all Mortgaged Properties and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02 or Section 10 hereof and all Additional
Collateral, if any (all of which shall in any event exclude any interest in the
FCC Authorizations to the extent prohibited by applicable law).
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment" shall mean any of the commitments of any Bank,
i.e., whether an A Term Loan Commitment, B Term Loan Commitment, Additional
Term Loan Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a)(iii).
"Communications Act" shall have the meaning provided in
Section 7.23.
"Company Financings" shall mean and include the IPO, the
Capstar Disposition, available cash on hand of CBC and its Subsidiaries
(including cash received in connection with the CCI-Capstar Acquisition, if
any) and the Chancellor Loan.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP plus the Total
Unutilized Revolving Loan Commitment at such time.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be
included therein, (ii) accrued but unpaid interest with respect to the
Indebtedness described in clause (i), and (iii) the current portion of
Capitalized Lease Obligations.
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"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP, before Consolidated
Net Interest Expense and provision for taxes and without giving effect to any
extraordinary or non-recurring gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, (I) plus, without duplication and to the extent deducted
from Consolidated EBIT for such period, the sum of (a) depreciation and
amortization expense, (b) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (c) non-cash charges in respect
of pension and retiree benefits, (d) the amount resulting from Cost Savings
Measures and (e) any other non-cash charges, and (II) minus the total
consolidated cash interest income for such period; provided that when
determining the Leverage Ratio and the Interest Coverage Ratio, (A)
Consolidated EBITDA for any Test Period during which an acquisition or
disposition permitted by this Agreement is consummated shall be determined on a
Pro Forma Basis as if such acquisition or disposition was consummated on the
first day of such Test Period and (B) EBITDA for any large market station
operated by Chancellor Media of Los Angeles in accordance with the terms of the
Chancellor Letter Agreement shall be, for any period occurring after the second
anniversary of the Effective Date, the lesser of the EBITDA of such radio
station for such period and the time brokerage fee paid in connection with such
radio station for such period.
"Consolidated Indebtedness" shall mean, at any time, the sum
of the aggregate outstanding principal amount of all Indebtedness for borrowed
money (other than Indebtedness for borrowed money entered into for the sole
purpose of paying the CCI/SFX Entertainment Tax liability so long as
reimbursement is made within 60 days), and the principal component of
Capitalized Lease Obligations of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP; provided, however,
that Indebtedness in connection with CCI's Existing 10 3/4% Senior Subordinated
Notes and CCI's 12 5/8% Series E Cumulative Exchangeable Preferred Stock
(including any Indebtedness incurred to refinance CCI's 10 3/4% Senior
Subordinated Notes and CCI's 12 5/8% Series E Cumulative Exchangeable Preferred
Stock) shall be included in the calculation of Consolidated Indebtedness on the
basis of the face amount thereof and not on the basis of any write-ups as a
result of any purchase accounting.
"Consolidated Net Cash Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP for such period plus, without duplication, (i) that portion of Capitalized
Lease Obligations of Holdings and its Consolidated Subsidiaries representing
the interest factor for such period and (ii) the amount of all cash Dividend
requirements (whether or not declared or paid) on CCI's 12 5/8% Series E
Cumulative Exchangeable Preferred Stock paid or accrued or scheduled to be paid
or accrued during such period, in each case net of the total consolidated cash
interest income of the Borrower and its Consolidated Subsidiaries for such
period.
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"Consolidated Net Income" shall mean, for any period, net
after tax income of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis in accordance with GAAP, minus the amount of Dividends
paid by the Borrower pursuant to Section 9.03(ii); provided, that any non-cash
expenses attributable to grants or exercises of employee stock options shall
not be included in the determination of Consolidated Net Income.
"Consolidated Net Interest Expense" shall mean, for any
period, the total consolidated interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP for such period (calculated without regard to any limitations on the
payment thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP representing the interest factor for
such period in each case net of the total consolidated cash interest income of
the Borrower and its Consolidated Subsidiaries for such period, but excluding
the amortization of any deferred financing costs incurred in connection with
this Agreement.
"Consolidated Operating Cash Flow" shall mean, for any period,
the Operating Cash Flow of Parent and its Consolidated Subsidiaries determined
on a consolidated basis in accordance with GAAP during such period.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if less,
the maximum amount of such primary obligation for which such Person may be
liable pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
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"Continuing Directors" shall mean the directors of Parent on
the date which occurs six months prior to the consummation of the IPO and each
other director, if such director's nomination for election to the Board of
Directors of Parent is recommended by a majority of the then Continuing
Directors or any other nominee of the HM Group.
"Cost Savings Measures" shall mean cost savings resulting from
employee terminations, facilities consolidations and closings, standardization
of employee benefits and compensation practices, consolidation of property,
casualty and other insurance coverage and policies, standardization of sales
representation commissions and other contract rates, and reductions in taxes
other than income taxes, which cost savings the Borrower reasonably believes in
good faith would have been achieved during the Test Period as a result of such
asset acquisitions (regardless of whether such cost savings could then be
reflected in pro forma financial statements under GAAP), provided that both (A)
such cost savings and cost savings measures were identified and such cost
savings were quantified in an officers' certificate delivered to the
Administrative Agent at the time of the consummation of the asset acquisition
and (B) with respect to each asset acquisition completed prior to the 90th day
preceding such date of determination, actions were commenced or initiated by
the Borrower or its Subsidiaries within 90 days of such asset acquisition to
effect the cost savings measures identified in such officers' certificate
(regardless, however, of whether the corresponding cost savings were ultimately
achieved).
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document and the Subsidiary Guaranty.
"Credit Event" shall mean the making of any Loan (but shall
not include conversions or continuations of existing Loans) or the issuance of
any Letter of Credit.
"Credit Facilities" shall mean the facilities evidenced by the
A Term Loan Commitment, B Term Loan Commitment, the Revolving Loan Commitment
and the Additional Term Loan Commitments, if any.
"Credit Party" shall mean each Parent Guarantor, the Borrower
and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Disqualified Capital Stock" shall mean any capital stock
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event (i) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund
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obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the first anniversary of the B Term Loan
Maturity Date, or (ii) is convertible into or exchangeable (unless at the sole
option of the issuer thereof) for (a) debt securities or (b) any capital stock
referred to in (i) above, in each case at any time prior to the first
anniversary of the B Term Loan Maturity Date.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its
stockholders as such, or redeemed, retired, purchased or otherwise acquired,
directly or indirectly, for consideration any shares of any class of its
capital stock outstanding on or after the Initial Borrowing Date (or any
options or warrants issued by such Person with respect to its capital stock),
or set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for
consideration any shares of any class of the capital stock of such Person
outstanding on or after the Initial Borrowing Date (or any options or warrants
issued by such Person with respect to its capital stock).
"Documentation Agents" shall mean each of Salomon Brothers
Holding Company Inc. and Goldman Sachs Credit Partners L.P. in their capacity
as Documentation Agents for the Banks hereunder.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.04(b).
"EBIT" shall mean, for any period, net after tax income of any
Person before Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"EBITDA" shall mean, for any period, EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation that
were deducted in arriving at EBIT for such period.
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in bank loans or other
institutional "accredited investor" (as defined in Regulation D of the
Securities Act).
"Employee Stock Option Plan" shall mean the Capstar
Broadcasting Corporation 1997 Employee Stock Option Plan, as amended, and any
plan entered into after the Effective Date, for the compensation of management
of Parent or any of its Subsidiaries, or any arrangement
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for the benefit of management of Parent or any of its Subsidiaries, provided
that such plan is in form and substance reasonably acceptable to the
Administrative Agent.
"Employment Agreements" shall have the meaning provided in
Section 5A.04.
"End Date" shall mean, for any Margin Reduction Period, the
last day of such Margin Reduction Period.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Parent or any Subsidiary of Parent
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
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"Eurodollar Rate" shall mean the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for
Dollar deposits of amounts in immediately available funds comparable to the
outstanding principal amount of the Eurodollar Loan of BTCo with maturities
comparable to the Interest Period applicable to such Eurodollar Loan commencing
two Business Days thereafter as of 10:00 A.M. (New York time) on the date which
is two Business Days prior to the commencement of such Interest Period, divided
(and rounded upward to the nearest 1/16 of 1%) by a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period pursuant to and in accordance with
Section 9.07(a) and (b), except to the extent financed with the proceeds of
Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
the Borrower and the permanent repayment of the principal component of
Capitalized Lease Obligations of the Borrower and its Subsidiaries (excluding
(1) payments with proceeds of issuances of Indebtedness or equity or with
proceeds of asset sales or insurance recovery and condemnation events and (2)
payments of Loans or other Obligations, provided that repayments of Loans shall
be deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Term Loan Repayment under Section 4.02(b)
(but not as a reduction to the amount of Scheduled Term Loan Repayments
pursuant to another provision of this Agreement) or (y) made as a voluntary
prepayment pursuant to Section 4.01 with internally generated funds (but in the
case of a voluntary prepayment of Revolving Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment))
during such period, (iii) the increase, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period and (iv) the
amount of all expenses (including expenses incurred in connection with
acquisitions) that have been paid during such period to the extent that such
expenses have been capitalized in accordance with GAAP but only to the extent
that the payment thereof does not otherwise reduce Adjusted Consolidated Net
Income.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending December 31, 1998).
"Excess Cash Payment Period" shall mean with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(d).
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FCC Authorizations" shall have the meaning provided in
Section 7.23.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Galaxy Systems Capital Expenditures" shall mean the Capital
Expenditures made in connection with the establishment of the Galaxy Systems.
"Guaranteed Obligations" shall mean all obligations of the
Borrower (i) to each Bank for the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and
interest on each Note issued by the Borrower to such Bank, and Loans made,
under the Credit Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit, together with all the other
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or
any other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) to each Bank and each Affiliate of a Bank which enters into
an Interest Rate Protection Agreement with the Borrower, which by its express
terms are entitled to the benefit of the Parents Guaranty pursuant to Section
14 with the written consent of the Borrower, the full and prompt payment when
due (whether by acceleration or otherwise) of all obligations of the Borrower
owing under any such Interest Rate Protection Agreement, whether now in
existence or hereafter arising, and the due performance and compliance with all
terms, conditions and agreements contained therein.
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"Guarantor" shall mean and include each Parent Guarantor and
each Subsidiary Guarantor.
"Guaranty" shall mean and included each of the Parents
Guaranty, the Subsidiary Guaranty, and any guaranty executed pursuant to
Section 8.13.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous substances," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Tate &
Furst Incorporated, its Affiliates and R. Steven Hicks taken as a whole, (ii)
so long as Hicks, Muse, Tate & Furst Incorporated, its Affiliates and R. Steven
Hicks taken as a whole possess sole voting right with respect to the Voting
Stock held by each such individual, such individuals who are or were employees,
officers, directors or partners of Hicks, Muse, Tate & Furst Incorporated or
such Affiliate and the family members of such individuals or trusts created for
the sole benefit of such family members and (iii) so long as Hicks, Muse, Tate
& Furst Incorporated, its Affiliates and R. Steven Hicks taken as a whole
possess sole voting right with respect to the Voting Stock of Parent held by
each such Person, any Person not otherwise described by clause (i) and (ii)
above, provided that the aggregate number of shares held by all such Persons in
accordance with this clause (iii) at any time shall not exceed 3% of the
aggregate number of shares held by the Persons described in clause (i) and (ii)
above at such time.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Holdings' Senior Note Documents" shall mean each of the
documents and other agreements entered into (including, without limitation, the
Holdings' Senior Note Indenture) relating to the issuance by Holdings of
Holdings' Senior Notes, as in effect on the Effective Date and as the same may
be amended, modified or supplemented from time to time pursuant to the terms
hereof and thereof.
"Holdings' Senior Note Indenture" shall mean that certain
Indenture, dated as of February 20, 1997, between Holdings and U.S. Trust
Company of Texas N.A., as Trustee, as in effect on the Effective Date and as
the same may be amended, modified, extended, renewed, replaced, restated or
supplemented from time to time pursuant to the terms thereof and hereof.
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"Holdings' Senior Notes" shall mean Holdings' 12 3/4% senior
discount notes due 2009.
"Holdings' Subordinated Exchange Debentures" shall mean
Holdings' 12% Exchange Debentures due 2009 issued pursuant to the Holdings'
Subordinated Exchange Debentures Indenture.
"Holdings' Subordinated Exchange Debentures Indenture" shall
mean that certain indenture, dated as of the date of issuance of Holdings'
Subordinated Exchange Debentures, by and between Holdings and U.S. Trust
Company of Texas, N.A., as trustee, which shall be in form and substance
satisfactory to the Administrative Agent.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services due more than 90 days after acquisition of the property
or receipt of services or which is otherwise represented by a note, (ii) the
maximum amount available to be drawn under all letters of credit issued for the
account of such Person and all unpaid drawings in respect of such letters of
credit, (iii) all Indebtedness of the types described in clause (i), (ii),
(iv), (v) or (vi) of this definition secured by any Lien on any property owned
by such Person, whether or not such Indebtedness has been assumed by such
Person (to the extent of the lesser of the amount of such Indebtedness and the
value of the respective property), (iv) Capitalized Lease Obligations, (v) all
Contingent Obligations of such Person and (vi) all obligations under any
Interest Rate Protection Agreement or under any similar type of agreement;
provided, that Indebtedness shall not include trade payables and accrued
expenses, in each case arising in the ordinary course of business.
"Indebtedness to be Refinanced" shall mean all Indebtedness
set forth on Schedule XII which is to be repaid in full on the Initial
Borrowing Date.
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Loans occurs.
"Interest Coverage Ratio" shall mean, on the date of
determination thereof, the ratio of (x) Consolidated EBITDA for the Test Period
then most recently ended (taken as one accounting period) to (y) Consolidated
Net Cash Interest Expense for the Test Period then most recently ended (taken
as one accounting period).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
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"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"IPO" shall mean an initial public offering of Parent's Class
A Common Stock which shall generate at least $550,000,000 of gross cash
proceeds, the cash proceeds of such initial public offering net of transaction
expenses and other related expenses to be contributed by Parent to the capital
of Holdings which, in turn, shall use all or a portion of such cash proceeds to
make a capital contribution to the Borrower.
"IPO Documents" shall mean all agreements and documents
related to the IPO.
"Issuing Bank" shall mean, BTCo and any Bank which at the
request of the Borrower and with the consent of the Administrative Agent
agrees, in such Bank's sole discretion, to become an Issuing Bank for the
purpose of issuing Letters of Credit pursuant to Section 2. The sole Issuing
Bank on the Effective Date is BTCo.
"L/C Supportable Obligations" shall mean obligations of Parent
or any of its Subsidiaries as are consistent with the policies of the
respective Issuing Bank and otherwise permitted to exist pursuant to the terms
of this Agreement, which shall include the posting of Letters of Credit to
provide assurance of performance in connection with acquisitions otherwise
permitted by Section 9.02.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the amount of, without duplication, all Unpaid
Drawings in respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, on the date of determination
thereof, the ratio of (x) Consolidated Indebtedness on such date to (y)
Consolidated EBITDA for the Test Period then most recently ended (taken as one
accounting period).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC
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or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Limited Guaranty" shall mean a limited, unsecured and
unconditional guaranty provided by Parent, Holdings or the Borrower, as the
case may be, of the obligations and liabilities of any Non-Controlled Entity
under its Non-Controlled Entity Credit Facility, which guaranty shall be in
form and substance satisfactory to the Administrative Agent.
"Loan" shall mean each A Term Loan, B Term Loan and each
Revolving Loan.
"Main Station Licenses" shall have the meaning provided in
Section 7.23.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
"Management Agreements" shall have the meaning provided in
Section 5A.04.
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant to
Section 9.01(b) or Section 9.01(c), as the case may be, and which shall end on
the earlier of (i) the date of actual delivery of the next financial statements
pursuant to Section 9.01(b) or Section 9.01(c), as the case may be, and (ii)
the latest date on which the next financial statements are required to be
delivered pursuant to Section 9.01(b) or Section 9.01(c), as the case may be;
provided that the first Margin Reduction Period shall commence on the date of
delivery of the financial statements in respect of the fiscal quarter of the
Borrower ending on December 31, 1998.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Market" shall mean (i) an unranked Metropolitan Statistical
Area or (ii) a Metropolitan Statistical Area ranked 30th or higher by an
industry ranking service such as BIA.
"Media Asset" shall mean any radio station, television
station, billboard and other related assets that broadcasts or communicate
ideas, information or entertainment and is located in a Market (it being
understood and agreed, however, that notwithstanding anything to the contrary
contained in the definition all assets owned by the Borrower and its
Subsidiaries on the Initial Borrowing Date shall constitute "Media Assets").
"Media Asset Swap" shall have the meaning provided in Section
9.02(ix).
"Minimum Borrowing Amount" shall mean for each Tranche of
Loans $1,000,000.
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"Monitoring and Oversight Agreement" shall have the meaning
provided in Section 9.06(iv).
"Mortgage" shall have the meaning provided in Section
5A.11(a).
"Mortgage Policies" shall have the meaning provided in Section
5A.11(b).
"Mortgaged Properties" shall have the meaning provided in
Section 5A.11(a).
"Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to
any limitations on the payment thereof) plus, without duplication, that portion
of Capitalized Lease Obligations of such Person representing the interest
factor for such period in each case net of the total consolidated cash interest
income of such Person for such period, but excluding the amortization of any
deferred financing costs incurred in connection with this Agreement.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable
or otherwise, but only as and when received) received by Parent and/or any of
its Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in
income taxes which will be payable by Parent's consolidated group with respect
to the fiscal year in which the sale occurs as a result of such sale; but
excluding any portion of any such gross cash proceeds which Parent determines
in good faith should be reserved for post-closing adjustments (to the extent
Parent delivers to the Banks a certificate signed by an Authorized Officer as
to such determination), it being understood and agreed that on the day that all
such post-closing adjustments have been determined (which shall not be later
than six months following the date of the respective asset sale), the amount
(if any) by which the reserved amount in respect of such sale or disposition
exceeds the actual post-closing adjustments payable by Parent or any of its
Subsidiaries shall constitute Net Sale Proceeds on such date.
"Non-Controlled Entity" shall mean any Person in which the
Borrower or any Wholly-Owned Subsidiary of the Borrower shall own up to 33 1/3%
of the economic interest and 0% of the voting interest and which shall be
designated as a "Non-Controlled Entity" at time of the investment therein by
the Borrower or such Wholly-Owned Subsidiary. Each such designation shall be
evidenced by delivering to the Administrative Agent an officers' certificate of
an
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Authorized Officer of the Borrower certifying that the foregoing conditions
have been complied with.
"Non-Controlled Entity Credit Facility" shall mean the credit
agreement entered into by any Non- Controlled Entity for the purpose of raising
proceeds to purchase assets from the Borrower or any Wholly-Owned Subsidiary of
the Borrower, which shall be in form and substance satisfactory to the
Administrative Agent.
"Non-Defaulting Bank" shall mean and include each Bank which
is not a Defaulting Bank.
"Note" shall mean each A Term Note, each B Term and each
Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, Attention: Jim
Reilly, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Bank pursuant to the terms of
this Agreement or any other Credit Document.
"Operating Cash Flow" shall mean, with respect to any Media
Asset during any period, the sum of (x) EBITDA of such Media Asset for such
period and (y) corporate overhead expense allocated to such Media Asset for
such period adjusted, as applicable, for Cost Savings Measures; it being
understood that the Operating Cash Flow of any Person shall mean the
consolidated Cash Flow of all Media Assets owned by such Person.
"Other Agents" shall mean each of the Syndication Agent and
each Documentation Agent.
"Parent" shall have the meaning provided in the first
paragraph of this Agreement.
"Parent Common Stock" shall have the meaning provided in
Section 7.13(a).
"Parent Guarantors" shall mean and include each of Parent and
Holdings.
"Parent Note" shall mean each promissory note, in the form of
Exhibit M, evidencing the intercompany loans, other loans and advances made by
Parent pursuant to Section 9.05(xix).
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"Parents Guaranty" shall mean the guaranty of the Parent
Guarantors pursuant to Section 14.
"Payment Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, Attention:
Anita Manglani or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Pending Acquisitions" shall mean, collectively, (i) the
acquisition by the Borrower or its Subsidiaries of radio stations WXPS-FM and
WCPV-FM serving the Vergennes, Vermont market and Essex, New York market,
respectively; (ii) the acquisition by the Borrower or its Subsidiaries of radio
stations KCDQ-FM, KCHX-FM and KMRK-FM serving the Midland, Texas market,
KMML-FM, KBUY-FM, KNSY-FM and KIXZ (AM) serving the Amarillo, Texas market, and
KRRV- FM, KKST-FM, KZMZ-FM and KDBS (AM) serving the Alexandria, Louisiana
market, all from Champion Broadcasting Corporation et al; (iii) the acquisition
by the Borrower or its Subsidiaries of radio station KUAB-FM serving the
Fairbanks Alaska market from the University of Alaska Fairbanks; (iv) the
acquisition by the Borrower or its Subsidiaries of radio station KRNA-FM
serving the Iowa City, Iowa market from KRNA, Inc.; (v) the acquisition by the
Borrower or its Subsidiaries of the radio stations KKTX-FM and KKTX (AM)
serving the Longview, Texas market from Noalmark Broadcasting Corporation; (vi)
the acquisition by the Borrower or its Subsidiaries of the radio station
WYCL-FM serving the Pensacola, Florida market from Paxon Communications
Corporation; (vii) the acquisition by the Borrower or its Subsidiaries of the
radio stations WSRI-FM, WZNN (AM), WERZ-FM and WMYF (AM) serving the
Portsmouth-Dover-Rochester, New York market from American Radio Systems; and
(viii) the acquisition by the Borrower or its Subsidiaries of the radio station
KMJJ-FM serving the Shreveport, Louisiana market from SunGoup, Inc. et al.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its
reasonable discretion.
"Permitted Issuance" shall mean (a) the issuance by Parent of
options or other equity securities (including as a result of the exercise of
any options with regard thereto) of Parent to outside directors, members of
management or employees of Parent or any Subsidiary of Parent, (b) the issuance
of securities as interest or dividends on pay-in-kind debt or preferred equity
securities permitted hereunder and under the other Credit Documents and (c) the
issuance to Parent or any Subsidiary of Parent (or any director, with respect
to directors' qualifying shares) by any of its Subsidiaries of any of their
respective capital stock (other than in the case of capital contributions made
by Parent to Holdings with the proceeds received by Parent in respect of
payments made on any Parent Note as required by Section 9.05(xix)), in each
case with
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respect to this clause (c) to the extent such capital stock is pledged to the
Collateral Agent pursuant to the applicable Pledge Agreement (provided that
only 65% of the voting capital stock of a foreign Subsidiary of Parent is
required to be so pledged).
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Section 9.02(xiii) Acquisition" shall have the
meaning provided in Section 9.02(xiii).
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), Parent or a Subsidiary
of Parent or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Parent, a Subsidiary of Parent
or an ERISA Affiliate maintained, contributed or had an obligation to
contribute to such plan.
"Pledge Agreement" shall mean have the meaning provided in
Section 5A.09.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Securities" shall mean "Pledged Securities" as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Prior Acquisition or Sale" shall mean the acquisition of any
radio station or 100% of the capital stock of any Person that owns radio
stations or the sale of any radio station or Subsidiary, in each case, which
was consummated prior to the Effective Date.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term
required to be determined on a Pro Forma Basis, the calculation thereof after
giving effect on a pro forma basis to (v) any Prior Acquisition or Sale that
occurred after the first day of the relevant Calculation Period as if same had
occurred on the first day of such period, (x) the assumption, incurrence or
issuance of any Indebtedness or capital stock (other than revolving
Indebtedness, except to the extent same is incurred to refinance other
outstanding Indebtedness or to finance Stock Swaps, Media Asset Swaps or
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Permitted Section 9.02(xiii) Acquisitions) after the first day of the relevant
Calculation Period as if such Indebtedness had been incurred or capital stock
issued (and the proceeds thereof applied) on the first day of the relevant
Calculation Period, (y) the permanent repayment of any Indebtedness (other than
revolving Indebtedness (except to the extent accompanied by a permanent
commitment reduction)) and Scheduled Repayment after the first day of the
relevant Calculation Period as if such Indebtedness had been retired or
redeemed on the first day of the relevant Calculation Period and (z) the Stock
Swap, Media Asset Swap, Permitted Section 9.02(xiii) Acquisition or sale of any
radio station or Subsidiary, if any, then being consummated as well as any
other Stock Swap, Media Asset Swap, Permitted Section 9.02(xiii) Acquisition or
sale of any radio station or Subsidiary consummated after the first day of the
relevant Calculation Period and on or prior to the date of the respective Stock
Swap, Media Asset Swap, Permitted Section 9.02(xiii) Acquisition or sale of any
radio station or Subsidiary then being effected as if such Stock Swaps, Media
Asset Swaps, Permitted Section 9.02(xiii) Acquisitions or sale of any radio
station or Subsidiary had occurred on the first day of the relevant Calculation
Period, with the following rules to apply in connection therewith:
(i) all Indebtedness and capital stock (x) (other than
revolving Indebtedness, except to the extent same is incurred to
refinance other outstanding Indebtedness, or to finance Permitted
Section 9.02(xiii) Acquisitions, Stock Swaps or Media Asset Swaps)
assumed, incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Stock Swap, Media
Asset Swap or Permitted Section 9.02(xiii) Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or
issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date
of determination and (y) (other than revolving Indebtedness (except to
the extent accompanied by a permanent commitment reduction))
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on
the first day of the respective Calculation Period and remain retired
through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant
to preceding clause (i) shall be deemed to have borne interest at (x)
the rate applicable thereto, in the case of fixed rate indebtedness or
(y) the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of
floating rate Indebtedness (although interest expense with respect to
any Indebtedness for periods while same was actually outstanding
during the respective period shall be calculated using the actual
rates applicable thereto while same was actually outstanding); and
(iii) in making any determination of Consolidated EBITDA,
pro forma effect shall be given to any Prior Acquisition or Sale, any
Stock Swap, any Media Asset Swap, any Permitted Section 9.02(xiii)
Acquisition or sale of any radio station or Subsidiary for the periods
described above, taking into account, in the case of any Permitted
Section 9.02(xiii) Acquisition, Prior Acquisition or Sale (only with
respect to such acquisition, if any), Media Asset Swap or Stock Swap,
any Cost Savings Measures which are directly
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attributable to such Permitted Section 9.02(xiii) Acquisition, Prior
Acquisition or Sale (only with respect to such acquisition, if any)
Media Asset Swap or Stock Swap, as if such Cost Savings Measures were
realized on the first day of the respective period.
"Projections" shall have the meaning provided in Section
7.05(d).
"Qualified Capital Stock" shall mean any capital stock that is
not Disqualified Capital Stock.
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December occurring after the Initial Borrowing
Date.
"Radio Stations" shall mean and include (i) all of the AM and
FM radio stations owned and operated by Parent and its Subsidiaries as of the
Initial Borrowing Date, after giving effect to all elements of the Transaction
that are closing or being consummated as of or on the Initial Borrowing Date
and (ii) any radio stations acquired after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" shall mean the receipt by Parent or any of
its Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of
theft, loss, physical destruction or damage or any other similar event with
respect to any property or assets of Parent or any of its Subsidiaries and (y)
under any policy of insurance required to be maintained under Section 8.03 or
(ii) condemnation award payable by reason of eminent domain or deed in lieu
thereof.
"Refinancing" shall mean the repayment in full of the
Indebtedness to be Refinanced.
"Refinancing Documents" shall mean all agreements and
documents related to the Refinancing.
"Region" shall mean each of the geographic areas designated as
a Region by the Borrower as set forth on Schedule XIII and containing the
Markets served by the Media Assets located therein.
"Register" shall have the meaning set forth in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Assets" shall have the meaning provided in
Section 4.02(e).
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans (or, if prior to the Termination thereof, Term
Loan Commitments and then outstanding Term Loans of such Non-Defaulting Banks)
and Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and Adjusted RL Percentage of Letter of Credit Outstandings)
represent an amount greater than 50% of the sum of all outstanding Term Loans
(or, if prior to termination thereof, Term Loan Commitments and all then
outstanding Term Loans of all Non-Defaulting Banks) of Non-Defaulting Banks and
the Adjusted Total Revolving Loan Commitment (or after the termination thereof,
the sum of the then total outstanding Revolving Loans of Non-Defaulting Banks
and the aggregate Adjusted RL Percentages of all Non-Defaulting Banks of
Letter of Credit Outstandings at such time).
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(c).
"Revolving Loan Commitment" shall mean for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment", as same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10, (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 1.13 or 13.04(b) or (z) increased pursuant to Section 9.04(xiv).
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"Revolving Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a)(i).
"Revolving Note" shall have the meaning provided in Section
1.05(a)(iii).
"RKZ Disposition" shall mean the disposition of the RKZ
television station and related assets.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"SBI" shall mean SBI Holding Corporation, a Delaware
corporation.
"Scheduled Repayments" shall mean A Term Loan Scheduled
Repayments and B Term Loan Scheduled Repayments.
"SEC" shall have the meaning provided in Section 8.01(h).
"Second A Term Loan Borrowing Date" shall mean a date
occurring on or prior to the 120th day following the Initial Borrowing Date.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in
Section 5A.10.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement (which shall in any event exclude any
interests in the FCC Authorizations to the extent prohibited or ineffectual
under applicable law).
"Security Document" shall mean and include the Pledge
Agreement, the Security Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Mortgage and each Additional Security
Document required to be delivered pursuant to Section 8.13.
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"Senior Exchangeable Preferred Stock" shall mean Holdings' 12%
Senior Exchangeable Preferred Stock due 2009.
"Senior Exchangeable Preferred Stock Documents" shall mean
each document delivered pursuant to the issuance of the Senior Exchange
Preferred Stock or in connection therewith (including, but not limited to, the
Holdings' Subordinated Exchange Debentures Indenture and all documents relating
thereto), which shall be in form and substance satisfactory to the
Administrative Agent, as in effect on the Initial Borrowing Date and as the
same may be modified, supplemented or amended from time to time pursuant to the
terms hereof and thereof.
"SFX Entertainment" shall mean SFX Entertainment, Inc., a
Delaware corporation.
"Shareholders' Agreements" shall have the meaning provided in
Section 5A.04.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Star Systems Capital Expenditures" shall mean the Capital
Expenditures made in connection with the establishment of the Borrower's Star
Systems.
"Start Date" shall mean, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Stock Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Stock Swaps" shall have the meaning provided in Section
9.02(ix).
"Stock Target Media Asset" shall have the meaning provided in
Section 8.02(ix).
"Subordinated Notes" shall mean and include the Borrower's
9 1/4% Senior Subordinated Notes and, after the issuance thereof, the Holdings'
Subordinated Exchange Debentures.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which
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such Person and/or one or more Subsidiaries of such Person has more than a 50%
equity interest at the time.
"Subsidiary Guarantor" shall mean any Subsidiary of Parent
that is or becomes a party to the Subsidiary Guaranty for the purpose of
guaranteeing the Obligations hereunder and any obligations under Interest Rate
Protection Agreements.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5A.08.
"Supermajority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in this Agreement if (x) all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated and (y) the percentage "50%" contained therein
were charged to "66 2/3%".
"Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Syndication Agent" shall mean NationsBank, N.A., in its
capacity as Syndication Agent for the Banks hereunder.
"Target Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5A.04.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each A Term Loan, each B Term Loan and
each Additional Term Loan.
"Term Loan Commitment" shall mean the A Term Loan Commitment,
B Term Loan Commitment, Additional A Term Loan Commitment and/or the Additional
B Term Loan Commitment of any Bank.
"Test Date" shall mean, with respect to any Start Date, the
last day of the most recent fiscal quarter of the Borrower ended immediately
prior to such Start Date.
"Test Period" shall mean the four consecutive fiscal quarters
then last ended (taken as one accounting period).
"Total Additional A Term Loan Commitment" shall mean, at any
time, the sum of the Additional A Term Loan Commitments of each of the Banks.
"Total Additional B Term Loan Commitment" shall mean, at any
time, the sum of The Additional B Term Loan Commitments of each of the Banks.
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"Total Additional Term Loan Commitment" shall mean, at any
time, the sum of the Additional Term Loan Commitments of each Bank.
"Total Available Revolving Loan Commitment" shall mean, at any
time, the Total Revolving Loan Commitment less the Blocked Commitment, if any,
at such time.
"Total A Term Loan Commitment" shall mean, at any time, the
sum of the A Term Loan Commitments of each of the Banks.
"Total B Term Loan Commitment" shall mean, at any time, the
sum of the B Term Loan Commitments of each of the Banks.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Supermajority Banks" shall mean Non-Defaulting Banks
the sum of whose outstanding Term Loans (and, if prior to the Term Loan
Availability Termination Date, Term Loan Commitments and then outstanding Term
Loans of such Non-Defaulting Banks) and Revolving Loan Commitments (or after
the termination thereof, outstanding Revolving Loans and Adjusted RL Percentage
of Letter of Credit Outstandings) represent an amount greater than 66-2/3% of
all outstanding Term Loans (and, if prior to Term Loan Availability Termination
Date, Term Loan Commitments and all then outstanding Term Loans of all
Non-Defaulting Banks) of Non-Defaulting Banks and the Adjusted Total Revolving
Loan Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
RL Percentages of all Non-Defaulting Banks of Letter of Credit Outstandings at
such time.)
"Total Term Loan Commitment" shall mean, at any time, the sum
of the A Term Loan Commitments, B Term Loan Commitments and Additional Term
Loan Guarantors of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, the amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
Revolving Loans then outstanding plus the aggregate amount of Letter of Credit
Outstandings at such time.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being three separate Tranches,
i.e., A Term Loans, B Term Loans and Revolving Loans.
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"Transaction" shall mean, collectively, (i) the consummation
of the IPO, (ii) the consummation of the Capstar Disposition, (iii) the
consummation of the SFX-Capstar Acquisition, (iv) the incurrence of the
Chancellor Loan, (v) the consummation of the Acquisition, (vi) the entering
into of the Credit Documents and the incurrence of Loans on the Initial
Borrowing Date, (viii) the consummation of the Refinancing, (ix) the
consummation of the CCI Redemptions and (x) the payment of fees and expenses in
connection with the foregoing.
"Transaction Documents" shall mean and include (i) the Credit
Documents, (ii) Acquisition Documents, (iii) the Chancellor Loan Documents,
(iv) the Capstar Disposition Documents, (v) the CCI-Capstar Acquisition
Documents, (vi) the documentation relating to the CCI Redemptions, (viii) the
IPO Documents and (ix) the Refinancing Documents.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of
Revolving Loans made by such Bank plus (ii) such Bank's Adjusted RL Percentage
of all Letter of Credit Outstandings at such time.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person, or any class or classes of
capital stock convertible into such stock at the option of the holders thereof.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time. Any
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reference to a Wholly-Owned Subsidiary, unless expressly to a Wholly-Owned
Subsidiary of another Person, shall mean a Wholly- Owned Subsidiary of the
Borrower.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Banks hereby designate BTCo as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" shall include BTCo in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Administrative Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. The Administrative
Agent may perform any of its duties hereunder by or through its respective
officers, directors, agents, employees or affiliates. The Syndication Agent
and Documentation Agents shall have no duties or liabilities in such capacities
hereunder.
12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Administrative Agent nor
any of its respective officers, directors, agents, employees or affiliates
shall be liable for any action taken or omitted by it or them hereunder or
under any other Credit Document or in connection herewith or therewith, unless
caused by its or their gross negligence or willful misconduct. The duties of
the Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Bank or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agent. Independently and
without reliance upon the Administrative Agent, each Bank and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of Parent and its Subsidiaries in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of
Parent and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or the holder of
any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Bank or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing
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delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Parent and its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of Parent and its Subsidiaries or the existence or possible existence
of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Bank nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative
Agent is not reimbursed and indemnified by the Borrower, the Banks will
reimburse and indemnify the Agent, in proportion to their respective
"percentages" as used in determining the Required Banks, for and against any
and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct.
12.07 The Administrative Agent in Its Individual Capacity.
With respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a
"Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required Banks,"
"Majority Banks," SuperMajority Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally
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engage in any kind of banking, trust or other business with any Credit Party or
any Affiliate of any Credit Party as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and
otherwise without having to account for the same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent, with
the consent of the Borrower, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Banks appoint a successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of- pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White
& Case LLP and local counsel) in connection with the preparation, execution and
delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent
relating hereto
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or thereto, of the Administrative Agent in connection with its syndication
efforts with respect to this Agreement and of the Administrative Agent and each
of the Banks in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein (including, without limitation, the reasonable fees and disbursements
of counsel for the Administrative Agent and for each of the Banks); (ii) pay
and hold each of the Banks harmless from and against any and all present and
future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Bank) to pay such taxes; and (iii) indemnify
the Administrative Agent, the Collateral Agent and each Bank, and each of their
respective officers, trustees, directors, employees, representatives, agents,
trustees and affiliates from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Bank or any of their affiliates is a party thereto)
related to the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein or in any
other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
Parent or any of its Subsidiaries, the generation, storage, transportation,
handling or disposal of Hazardous Materials at any location, whether or not
owned or operated by Parent or any of its Subsidiaries, the non-compliance of
any Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against Parent, any of its
Subsidiaries or any Real Property owned or at any time operated by Parent or
any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified). To the extent that the undertaking to indemnify, pay or
hold harmless the Administrative Agent or any Bank set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
13.02 Right of Setoff; Collateral Matters. (a) In addition
to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the occurrence of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Parent or
any of its Subsidiaries or to any other Person, any such notice being hereby
expressly waived, to
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set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of Parent or any of its Subsidiaries against
and on account of the Obligations and liabilities of Parent or any of its
Subsidiaries to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 13.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not such Bank shall have
made any demand hereunder and although said Obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME
THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY
LOCATED IN CALIFORNIA, NO BANK SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN
OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED BANKS OR APPROVED IN WRITING BY THE REQUIRED BANKS IF
SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK OF ANY SUCH
RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS SHALL BE NULL AND
VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE BANKS HEREUNDER AND SHALL
NOT CREATE ANY RIGHTS FOR THE BENEFIT OF ANY CREDIT PARTY OR ANY OTHER PERSON.
13.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any
Credit Party, at the address specified opposite its signature below or in the
other relevant Credit Documents; if to any Bank, at its address specified
opposite its name set forth on Schedule II hereto; and if to the Administrative
Agent, at its Notice Office; or, as to any Credit Party or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by
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telex or telecopier, except that notices and communications to the
Administrative Agent and the Borrower shall not be effective until received by
the Administrative Agent or the Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Banks and, provided further, that, although any Bank may transfer,
assign or grant participations in its rights hereunder, such Bank shall remain
a "Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitment hereunder except as provided in Section 13.04(b)) and
the transferee, assignee or participant, as the case may be, shall not
constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the relevant Maturity Date) in which
such participant is participating, or reduce the rate or extend the time of
payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan and an increase
in the available portion of any Commitment of any Bank shall be permitted
without the consent of any participant if the participant's participation is
not increased as a result thereof), (ii) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement or
(iii) release all or substantially all of the Collateral under all of the
Security Documents (except as expressly provided in the Credit Documents)
supporting the Loans hereunder in which such participant is participating. In
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant's
rights against such Bank in respect of such participation to be those set forth
in the agreement executed by such Bank in favor of the participant relating
thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder),
and/or its outstanding Term Loans of one more Tranches (or, if prior to the
termination of the Commitment with respect to the relevant Tranche, the
relevant Term Loan Commitment and/or outstanding Term Loan with respect to such
Tranche) to (i) its parent company and/or any affiliate of such Bank which is
at least 50% owned by such Bank or its parent company or to one or more Banks
or (ii) in the case of any Bank that is a fund that invests in bank loans, any
other fund that invests in bank loans and is managed by
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the same investment advisor of such Bank or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments and outstanding principal amount Term Loans (or, if
prior to termination of the Commitment with respect to the relevant Tranche,
the relevant Term Loan Commitment and/or outstanding Term Loans with respect to
such Tranche) hereunder to one or more Eligible Transferees (treating any fund
that invests in bank loans and any other fund that invests in bank loans and is
managed by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee), each of which assignees
shall become a party to this Agreement as a Bank by execution of an Assignment
and Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitment (and/or outstanding Term Loans) of
such new Bank and of the existing Banks, (ii) upon surrender of the old Notes,
new Notes will be issued, at the Borrower's expense, to such new Bank and to
the assigning Bank, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans), (iii) the consent of
the Administrative Agent and, so long as no Default or Event of Default then
exists, of the Borrower shall be required in connection with any such
assignment pursuant to clause (y) of this Section 13.04(b) (which consents
shall not be unreasonably withheld) and (iv) the Administrative Agent shall
receive at the time of each such assignment, from the assigning or assignee
Bank, the payment of a non-refundable assignment fee of $3,500 and, provided
further, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Register pursuant to Section 13.17 hereof.
To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Bank shall be relieved of its obligations hereunder with respect to
its assigned Commitments. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Bank hereunder and which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitment and related outstanding Obligations pursuant to
Section 1.13 or this Section 13.04(b) would, at the time of such assignment,
result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those
being charged by the respective assigning Bank prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Bank which is a fund may
pledge all or any portion of its Loans and Notes hereunder to its trustee in
support of its obligations to its trustee. No pledge pursuant to this clause
(c) shall release the transferor Bank from any of its obligations hereunder.
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13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Administrative Agent or any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which the Administrative Agent or
any Bank or the holder of any Note would otherwise have. No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or any Bank or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other
than any Bank that has consented in writing to waive its pro rata share of any
such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Credit Party to
such Banks in such amount as shall result in a proportional participation by
all the Banks in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 13.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
13.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted
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accounting principles in the United States consistently applied throughout the
periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by the Borrower to the Banks); provided that,
notwithstanding anything to the contrary contained in this Agreement, all
computations determining compliance with Sections 9.08 and 9.09 and the
definitions of Applicable Commitment Commission Percentage and Applicable
Margin shall include the consolidated Indebtedness (other than Indebtedness for
borrowed money evidenced by a Parent Note), consolidated net cash interest
expense and consolidated EBITDA, as the case may be, of each Non-Controlled
Entity; provided further, that, except as otherwise specifically provided
herein, (i) all computations of Excess Cash Flow and all computations
determining compliance with Sections 9.07 through 9.09, inclusive, and the
definitions of Applicable Commitment Commission Percentage and Applicable
Margin shall utilize accounting principles and policies in conformity with
those used to prepare the historical financial statements delivered to the
Banks pursuant to Section 7.05(a) and (ii) all computations determining
compliance with Sections 9.08 and 9.09 and the definitions of Applicable
Commitment Commission Percentage and Applicable Margin shall be determined on a
Pro Forma Basis (with the foregoing generally accepted accounting principles,
subject to the preceding proviso, herein called "GAAP").
(b) All computations of interest on Eurodollar Loans,
Commitment Commission and Fees hereunder shall be made on the basis of a year
of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
Commitment Commission or Fees are payable and all computations of interest on
Base Rate Loans shall be made on the basis of a year of 365 days for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL,
EXCEPT AS OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF PARENT,
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
CT CORPORATION SYSTEM, WITH OFFICES AT 1633 BROADWAY, NEW YORK, NEW YORK 10019
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF
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ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND
TRANSACTION DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE
TO ACT AS SUCH, EACH OF PARENT, HOLDINGS AND THE BORROWER AGREES TO DESIGNATE A
NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS
AGREEMENT. EACH OF PARENT, HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT PARTY AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST PARENT, HOLDINGS OR THE BORROWER IN ANY OTHER JURISDICTION.
(b) EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN
THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective
on the date (the "Effective Date") on which (i) each of the Borrower, each
Agent and each Bank shall have
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signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile device) the same to the
Administrative Agent at its Notice Office and (ii) the conditions precedent
contained in Section 5A are met to the satisfaction of the Administrative Agent
and the Required Banks (determined immediately after the occurrence of the
Effective Date). Unless the Administrative Agent has received actual notice
from any Bank that the conditions contained in Section 5A have not been met to
its satisfaction, upon the satisfaction of the condition described in clause
(i) of the immediately preceding sentence and upon the Administrative Agent's
good faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Effective Date shall
have been deemed to have occurred, regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although the
occurrence of the Effective Date shall not release the Borrower from any
liability for failure to satisfy one or more of the applicable conditions
contained in Section 5A). The Administrative Agent will give the Borrower and
each Bank prompt written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
13.12 Amendment or Waiver; etc., (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the A/RL Maturity Date, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates), or
reduce the principal amount thereof (except to the extent repaid in cash), (ii)
release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security Documents, (iii)
amend, modify or waive any provision of this Section 13.12, (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Effective Date or (v) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or any other Credit Document; provided
further, that no such change, waiver, discharge or termination shall (t)
increase the Commitment of any Bank over the amount thereof then in effect
without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Bank, and that an increase in the available
portion of any Commitment of any Bank shall not constitute an increase in the
Commitment of such Bank), (u) without the
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consent of each Issuing Bank, amend, modify or waive any provision of Section 2
or alter its rights or obligations with respect to Letters of Credit, (v)
without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 12 as same applies to such Administrative Agent or any
other provision as same relates to the rights or obligations of such Agent, (w)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, (x)
without the consent of the Majority Banks of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Banks of
such Tranche in the case of an amendment to the definition of Majority Banks),
amend the definition of Majority Banks or alter the required application of any
prepayments or repayments (or commitment reduction), as between the various
Tranches, pursuant to Section 4.01 or 4.02 (excluding Section 4.02(b)) although
the Required Banks may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Tranches, of any such prepayment, repayment or commitment reduction
which is required to be made is not altered, (y) without the consent of the
Supermajority Banks of the respective Tranche, amend, modify or change the
definition of Supermajority Banks of the respective Tranche or extend or reduce
any Scheduled Repayment applicable to such Tranche and (z) without the consent
of the Total Supermajority Banks, amend, modify or waive Section 9.04(xiv) or
reduce the percentage specified in the definition of Total Supermajority Banks
(it being understood that, with the consent of the Total Supermajority Banks,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Total Supermajority Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date. Notwithstanding anything to the contrary
contained herein, the Administrative Agent may enter into documentation
(including any changes to this Agreement or the other Credit Documents)
necessary to effect the increase in the Total Revolving Loan Commitment
pursuant to Section 9.04(xiv) or the Total Additional A Term Loan Commitment or
the Total Additional B Term Loan Commitment, as applicable, pursuant to Section
1.14.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks are
treated as described in clauses (A) or (B) below, to either (A) replace each
such non-consenting Bank or Banks (or, at the option of the Borrower, if the
respective Bank's consent is required with respect to less than all Tranches of
Loans (or related Commitments), to replace only the respective Tranche or
Tranches of Commitments and/or Loans of the respective non-consenting Bank
which gave rise to the need to obtain such Bank's individual consent) with one
or more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Commitment and repay its Loans, in accordance with Sections 3.02(b) and/or
4.01(b), provided, that unless the Commitments terminated, and Loans repaid,
pursuant to
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preceding clause (B) are immediately replaced in full at such time through the
addition of new Banks or the increase of the Commitments and/or Loans of
existing Banks (who in each case must specifically consent thereto), then, in
the case of any action pursuant to preceding clause (B), the Required Banks
(determined before giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrower shall not
have the right to replace a Bank, terminate its Commitment or repay its Loans
solely as a result of the exercise of such Bank's rights (and the withholding
of any required consent by such Bank) pursuant to the second proviso to Section
13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01 shall,
subject to Section 13.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Loans for a period of nine months thereafter.
13.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Bank prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes giving rise to such increased costs
after the date of the respective transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under the respective Section within six months after the date the
Bank incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital,
then such Bank shall only be entitled to be compensated for such amount by the
Borrower pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be,
to the extent the costs, Taxes, loss, expense or liability, reduction in
amounts received or receivable or reduction in return on capital are incurred
or suffered on or after the date which occurs six months prior to such Bank
giving notice to the Borrower that it is obligated to pay the respective
amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be;
provided that if the circumstances giving rise to such claims have a
retroactive effect, then such six month period shall be extended to include the
period of such retroactive effect. This Section 13.15 shall have no
applicability to any Section of this Agreement other than said Sections 1.10,
1.11, 2.05 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 13.16, each Bank agrees that it will use its best
efforts not to disclose without the prior consent of Parent, Holdings or the
Borrower (other than to its employees, officers, directors, auditors, advisors
or counsel or to another Bank if the Bank or such Bank's holding or parent
company in its sole discretion determines that any such party should have
access to such information, provided such Persons shall be subject to the
provisions of this Section 13.16 to the same extent
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as such Bank) any information with respect to Parent or any of its Subsidiaries
which is now or in the future furnished pursuant to this Agreement or any other
Credit Document and which is designated by either Parent, Holdings or the
Borrower to the Banks in writing as confidential, provided that any Bank may
disclose any such information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having
or claiming to have jurisdiction over such Bank or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors or to the National
Association of Insurance Commissioners, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to such
Bank, (e) to the Administrative Agent or the Collateral Agent and (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or
any interest therein by such Bank, provided that such prospective transferee
agrees to abide by the provisions of this Section 13.16.
(b) Each of Parent, Holdings and the Borrower hereby
acknowledges and agrees that each Bank may share with any of its affiliates any
information related to Parent or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness
of Parent and its Subsidiaries, provided such Persons shall be subject to the
provisions of this Section 13.16 to the same extent as such Bank).
13.17 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans made
by each of the Banks and each repayment in respect of the principal amount of
the Loans of each Bank. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of
any Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever
nature which may
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be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.17.
13.18 Designated Senior Indebtedness. Each Credit Party
hereby designates its obligations under this Agreement and the other Credit
Documents as "Designated Senior Indebtedness" for purposes of, and as defined
in the Borrower's 9 1/4% Senior Subordinated Note Indenture and the Holdings'
Subordinated Exchange Debentures Indenture.
13.19 Effect of Additional Loans on Eurodollar Loans. In
connection with the incurrence of Additional Term Loans pursuant to Section
1.14 and the increase in the Revolving Loan Commitment pursuant to Section
9.04(xiv), the Banks hereby agree that, nothwithstanding anything to the
contrary contained in this Agreement, the Borrower and the Administrative Agent
may take all such actions as may be necessary to ensure that all Banks with
outstanding Loans of the Tranche that is to be increased participate in each
Borrowing of outstanding Loans of such Tranche (after giving effect to the
incurrence of Loans pursuant to Section 1.14 or Section 9.04(xiv), as the case
may be) on a pro rata basis (including by having loans incurred pursuant to
Section 1.14 or Section 9.04(xiv), as the case may be, spread out over the then
outstanding Borrowings of Loans of such Tranche on a pro rata basis even though
as a result thereof such new Loans may effectively have a shorter Interest
Period than the existing Loans), and it is hereby agreed that (x) to the extent
any existing Borrowings of Loans that are maintained as Eurodollar Loans are
broken as a result thereof, any breakage costs of the type described in Section
1.11 of incurred by such Banks in connection therewith shall be for the account
of the Borrower or (y) to the extent the Loans that are incurred pursuant to
Section 1.14 or Section 9.04(xiv), as the case may be, are spread out over the
then outstanding Borrowings of Loans of the relevant Tranche, the Banks that
have made such additional Loans shall be entitled to receive an effective
interest rate on such additional Loans as is equal to the Eurodollar Rate as in
effect two Business Days prior to the incurrence of such additional Loans plus
the then Applicable Margin.
SECTION 14. Parents Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each Parent Guarantor from the proceeds of
the Loans and the issuance of the Letters of Credit and to induce the Banks or
any of their respective Affiliates to enter into Interest Rate Protection
Agreements, each Parent Guarantor hereby agrees with the Banks as follows:
each Parent Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise,
of any and all of the Guaranteed Obligations of the Borrower to the Secured
Creditors. If any or all of the Guaranteed Obligations of the Borrower to the
Secured Creditors becomes due and payable hereunder, each Parent Guarantor
unconditionally, jointly and severally, promises to pay such indebtedness to
the Secured Creditors, or order, on demand, together with any and all
reasonable expenses which may be incurred by the Administrative Agent or the
Secured Creditors in collecting any of the Guaranteed Obligations. All
payments
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made by each Parent Guarantor under this Guaranty shall be made on the same
basis as payments by the Borrower under Sections 4.03 and 4.04.
14.02 Bankruptcy. Additionally, each Parent Guarantor,
jointly and severally, unconditionally and irrevocably guarantees the payment
of any and all of the Guaranteed Obligations of the Borrower to the Secured
Creditors whether or not then due or payable by the Borrower upon the
occurrence in respect of the Borrower of any of the events specified in Section
10.05, and unconditionally and irrevocably, jointly and severally, promises to
pay such Guaranteed Obligations to the Secured Creditors, or order, on demand,
in lawful money of the United States.
14.03 Nature of Liability. (a) The liability of each Parent
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrower whether executed by such
Parent Guarantor, any other guarantor or by any other party, and the liability
of each Parent Guarantor hereunder shall not be affected or impaired by (i) any
direction as to application of payment by the Borrower or by any other party,
or (ii) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations
of the Borrower, or (iii) any payment on or in reduction of any such other
guaranty or undertaking, or (iv) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (v) any payment made to the
Administrative Agent or the Secured Creditors on the Guaranteed Obligations
which the Administrative Agent or such Secured Creditors repay to the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Parent Guarantor waives
any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.
(b) If claim is ever made upon the Administrative Agent or
any Secured Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations and any
of the aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event each Parent Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be
binding upon such Parent Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and each Parent
Guarantor shall be and remain jointly and severally liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such payee.
14.04 Independent Obligation. The obligations of each Parent
Guarantor hereunder are independent of the obligations of any other guarantor
or the Borrower, and a separate action or actions may be brought and prosecuted
against each Parent Guarantor whether or not action is brought against any
other guarantor or the Borrower and whether or not any other guarantor or the
Borrower be joined in any such action or actions. Each Parent Guarantor
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<PAGE> 144
waives, to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or other circumstance which operates to toll any
statute of limitations as to the Borrower shall operate to toll the statute of
limitations as to such Parent Guarantor. This Guaranty is a continuing one and
all liabilities to which it applies or may apply under the terms hereof shall
be conclusively presumed to have been created in reliance hereon.
14.05 Authorization. Each Parent Guarantor authorizes the
Administrative Agent and the Secured Creditors without notice or demand (except
as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in the
rate of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made shall
apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than the
Banks;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Secured Creditors
regardless of what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this Agreement or
any of such other instruments or agreements; and/or
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<PAGE> 145
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of any Parent Guarantor from its liabilities under this Guaranty.
14.06 Reliance. It is not necessary for the Administrative
Agent or the Secured Creditors to inquire into the capacity or powers of Parent
or its Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14.07 Subordination. Any of the indebtedness of the Borrower
now or hereafter owing to any Parent Guarantor is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Administrative Agent and
the Secured Creditors; and if the Administrative Agent so requests at a time
when an Event of Default exists, all such indebtedness of the Borrower to such
Parent Guarantor shall be collected, enforced and received by such Parent
Guarantor for the benefit of the Secured Creditors and be paid over to the
Administrative Agent on behalf of the Secured Creditors on account of the
Guaranteed Obligations of the Borrower to the Secured Creditors, but without
affecting or impairing in any manner the liability of such Parent Guarantor
under the other provisions of this Guaranty. Prior to the transfer by any
Parent Guarantor of any note or negotiable instrument evidencing any of the
indebtedness of the Borrower to such Parent Guarantor, such Parent Guarantor
shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. The provisions of this Section 14.07 (and any
claims of each Parent Guarantor as described above) are subject to the
provisions of Section 14.08(c) and (d).
14.08 Waiver. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require the Administrative Agent or the Secured Creditors to (i) proceed
against the Borrower, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from the Borrower, any other guarantor or
any other party or (iii) pursue any other remedy in the Administrative Agent's
or the Secured Creditors' power whatsoever. Each Parent Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the Guaranteed
Obligations. The Administrative Agent and the Secured Creditors may, at their
election, foreclose on any security held by the Administrative Agent, the
Collateral Agent or the Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law, including,
but not limited to, the Communications Act), or exercise any other right or
remedy the Administrative Agent and the Secured Creditors may have against the
Borrower or any other party, or any security, without affecting or impairing in
any way the liability of any Parent Guarantor hereunder except to the extent
the Guaranteed Obligations have been paid. Each Parent Guarantor waives any
defense arising out of any such election by the
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<PAGE> 146
Administrative Agent and the Secured Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Parent Guarantor against any Borrower or any
other party or any security.
(b) Each Parent Guarantor waives all presentments, demands
for performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Parent Guarantor assumes and incurs hereunder,
and agrees that the Administrative Agent and the Secured Creditors shall have
no duty to advise any Parent Guarantor of information known to them regarding
such circumstances or risks.
(c) Each Parent Guarantor understands that to the extent the
Guaranteed Obligations are secured by Real Property, each Parent Guarantor
shall be liable for the full amount of the liability hereunder notwithstanding
foreclosure on any such Real Property by trustee sale or any other reason
impairing such Parent Guarantor's or any secured creditors' right to proceed
against the Borrower. Each Parent Guarantor hereby waives, to the fullest
extent permitted by applicable laws, all rights and benefits under Sections
580a, 580b, 580d and 726 of the California Code of Civil Procedure. In
addition, each Parent Guarantor hereby waives, to the fullest extent permitted
by applicable laws, without limiting the generality of the foregoing or any
other provision hereof, all rights and benefits which might otherwise be
available to such Parent Guarantor under California Civil Code Sections 2787
through 2855 inclusive, 2899 and 3433.
(d) Each Parent Guarantor understands, is aware and hereby
acknowledges that if the Banks elect to foreclose on any of the Mortgaged
Property security nonjudicially, any right of subrogation of such Parent
Guarantor against the Borrower may be impaired or extinguished and that as a
result of such impairment or extinguishment of subrogation rights, such Parent
Guarantor may have a defense to a deficiency judgment arising out of the
operation of Section 580d of the California Code of Civil Procedure and related
principles of estoppel. Each Parent Guarantor waives all rights and defenses
arising out of an election of remedies by the Banks, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
14.09 Nature of Liability. It is the desire and intent of
each Parent Guarantor and the Secured Creditors that this Guaranty shall be
enforced against such Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of any Parent
Guarantor under this Guaranty shall be adjudicated to be invalid or
unenforceable for any reason
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<PAGE> 147
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the amount of the
Guaranteed Obligations of such Parent Guarantor shall be deemed to be reduced
and such Parent Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
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<PAGE> 148
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
600 Congress Avenue CAPSTAR BROADCASTING CORPORATION
Suite 1400 By
--------------------------------
Austin, Texas 78701 Name:
Attn: Paul D. Stone Title:
William S. Banowsky
Telephone: (512) 404-6840
Telecopy: (512) 404-6850
with a copy to:
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
600 Congress Avenue CAPSTAR BROADCASTING PARTNERS, INC.
Suite 1400 By
--------------------------------
Austin, Texas 78701 Name:
Attn: Paul D. Stone Title:
William S. Banowsky
Telephone: (512) 404- 6840
Telecopy: (512) 404-6850
with a copy to:
600 Congress Avenue CAPSTAR RADIO BROADCASTING PARTNERS,
Suite 1400 INC.
Austin, Texas 78701 By
--------------------------------
Attn: Paul D. Stone Name:
William S. Banowsky Title:
Telephone: (512) 404-6840
Telecopy: (512) 404-6850
<PAGE> 149
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
-----------------------------------
Name:
Title:
<PAGE> 150
SALOMON BROTHERS HOLDING COMPANY INC,
Individually and as Documentation Agent
By
------------------------------------
Name:
Title:
<PAGE> 151
GOLDMAN SACHS CREDIT PARTNERS L.P.,
Individually and as Documentation Agent
By
-----------------------------------
Name:
Title:
<PAGE> 152
NATIONSBANK, N.A.,
Individually
By
-----------------------------------
Name:
Title:
<PAGE> 153
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Syndication Agent
By
-----------------------------------
Name:
Title:
<PAGE> 154
BANKBOSTON, N.A.
By
-----------------------------------
Name:
Title:
<PAGE> 155
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager
By
-----------------------------------
Name:
Title:
<PAGE> 156
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment
Management Company, Inc. its
Managing Member
By
-----------------------------------
Name:
Title:
<PAGE> 157
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf
of First Allmerica Financial
Life Insurance Company as
Portfolio Manager
By
-----------------------------------
Name:
Title:
(Allmerica Separate Account)
<PAGE> 158
KZH-CYPRESSTREE-1 CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 159
KZH-IV CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 160
KZH-ING-2 CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 161
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By
-----------------------------------
Name:
Title:
<PAGE> 162
FREMONT FINANCIAL CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 163
THE TRAVELERS INSURANCE COMPANY
By
-----------------------------------
Name:
Title:
<PAGE> 164
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By
-----------------------------------
Name:
Title:
<PAGE> 165
BAYERISCHE VEREINSBANK, AG
NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
<PAGE> 166
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
-----------------------------------
Name:
Title:
<PAGE> 167
CREDIT LYONNAIS NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
<PAGE> 168
DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
By
-----------------------------------
Name:
Title:
<PAGE> 169
GENERAL ELECTRIC CAPITAL CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 170
IMPERIAL BANK
By
-----------------------------------
Name:
Title:
<PAGE> 171
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Individually
By
-----------------------------------
Name:
Title:
<PAGE> 172
NATIONAL CITY BANK
By
-----------------------------------
Name:
Title:
<PAGE> 173
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
<PAGE> 174
ROYAL BANK OF CANADA
By
-----------------------------------
Name:
Title:
<PAGE> 175
SOUTHERN PACIFIC BANK
By
-----------------------------------
Name:
Title:
<PAGE> 176
SUMMIT BANK
By
-----------------------------------
Name:
Title:
<PAGE> 177
UNION BANK OF CALIFORNIA, N.A.
By
-----------------------------------
Name:
Title:
<PAGE> 178
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited,
its agent
By: Greenwich Capital Markets, Inc.,
its agent
By
-----------------------------------
Name:
Title:
<PAGE> 179
FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management, Inc., as
Attorney-in-fact
By
-----------------------------------
Name:
Title:
<PAGE> 180
PRIME INCOME TRUST
By
-----------------------------------
Name:
Title:
<PAGE> 181
ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC
By: ING Capital Advisors, Inc., as
Investment Advisor
By
-----------------------------------
Name:
Title:
<PAGE> 182
KZH-SOLEIL-2 CORPORATION
By
-----------------------------------
Name:
Title:
<PAGE> 183
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By
-----------------------------------
Name:
Title:
<PAGE> 184
OCTAGON LOAN TRUST
By: Octagon Credit Investors as
manager
By
-----------------------------------
Name:
Title:
<PAGE> 185
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS,
INC., as its Investment Manager
By
-----------------------------------
Name:
Title:
<PAGE> 186
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
-----------------------------------
Name:
Title:
<PAGE> 187
THE SAKURA BANK LTD.
By
-----------------------------------
Name:
Title:
<PAGE> 188
RIGGS BANK, N.A.
By
-----------------------------------
Name:
Title:
<PAGE> 189
SCHEDULE I
<TABLE>
<CAPTION>
Revolving A Term Loan B Term Loan
Bank Loan Commitment Commitment Commitment
---- --------------- ---------- ----------
<S> <C> <C> <C>
Bankers Trust Company $57,236,842.11 $51,513,157.89 -
Goldman Sachs Credit Partners $57,236,842.11 $51,513,157.89 -
L.P.
NationsBank, N.A. $57,236,842.11 $51,513,157.89 -
Salomon Brothers Holding $57,236,842.11 $51,513,157.89 -
Company, Inc.
BankBoston, N.A. $26,315,789.47 $23,684,210.53 $10,000,000.00
Bayerische Vereinsbank, AG $26,315,789.47 $23,684,210.53
New York Branch
Union Bank of California, $26,315,789.47 $23,684,210.53 -
N.A.
General Electric Capital $18,421,052.63 $16,578,947.37 -
Corporation
The Mitsubishi Trust and $18,421,052.63 $16,578,947.37 -
Banking Corporation
Dresdner Bank AG New York & $18,421,052.63 $16,578,947.37 -
Grand Cayman Branches
Royal Bank of Canada $18,421,052.63 $16,578,947.37 -
Credit Lyonnais New York $18,421,052.63 $16,578,947.37 -
Branch
Compagnie Financiere de Cic $18,421,052.63 $16,578,947.37 -
et de L'Union Europeenne
Southern Pacific Bank $13,157,894.74 $11,842,105.26 -
Summit Bank $13,157,894.74 $11,842,105.26 -
Cooperatieve Centrale $13,157,894.74 $11,842,105.26 -
Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland",
New York Branch
</TABLE>
-182-
<PAGE> 190
Schedule I
Page 2
<TABLE>
<CAPTION>
Revolving A Term Loan B Term Loan
Bank Loan Commitment Commitment Commitment
---- --------------- ---------- ----------
<S> <C> <C> <C>
Fremont Financial Corporation $7,894,736.84 $7,105,263.16 -
National City Bank $7,894,736.84 $7,105,263.16 -
The Sakura Bank Ltd. $7,894,736.84 $7,105,263.16 -
Riggs Bank, N.A. $7,894,736.84 $7,105,263.16 -
Imperial Bank $5,263,157.89 $4,736,842.11 -
The Industrial Bank of Japan, $5,263,157.89 $4,736,842.11 -
Limited
Chancellor LGT Asset - - $25,000,000.00
Management
Cypress Tree Investments - - $20,000,000.00
Prime Income Trust - - $20,000,000.00
Senior Debt Portfolio by - - $20,000,000.00
Boston Management and
Research
First Dominion Capital - - $20,000,000.00
ING Capital Advisors, Inc. - - $20,000,000.00
Pilgrim America Group, Inc. - - $20,000,000.00
Protective Asset Management - - $20,000,000.00
Sankaty High Yield Asset - - $20,000,000.00
Partners, L.P.
Stanfield Capital Partners - - $20,000,000.00
</TABLE>
-183-
<PAGE> 191
Schedule I
Page 3
<TABLE>
<CAPTION>
Revolving A Term Loan B Term Loan
Bank Loan Commitment Commitment Commitment
---- --------------- ---------- ----------
<S> <C> <C> <C>
Trust Company of the West - - $ 20,000,000.00
Appaloosa - - $ 15,000,000.00
Harch Capital Management - - $ 15,000,000.00
Massachusetts Mutual Life - - $ 15,000,000.00
Insurance Company
Octagon Loan Trust - - $ 15,000,000.00
Pacific Investment Management - - $ 15,000,000.00
Company High Yield Fund
The Travelers Insurance - - $ 15,000,000.00
Company
National Westminster Bank PLC - - $ 10,000,000.00
("NatWest")
Angelo, Gordon & Company - - $ 10,000,000.00
Imperial Capital - - $ 10,000,000.00
Oak Hill Partners - - $ 10,000,000.00
Sterling Asset Management - - $ 10,000,000.00
KZH-Soleil-2 Corporation - - $ 10,000,000.00
Mountain Capital Advisors - - $ 5,000,000.00
=============== =============== ===============
Total: $500,000,000.00 $450,000,000.00 $400,000,000.00
------ --------------- --------------- ---------------
</TABLE>
<PAGE> 192
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Revolving A Term Loan B Term Loan
Bank Loan Commitment Commitment Commitment
---- --------------- ----------- -----------
<S> <C> <C> <C>
</TABLE>
<PAGE> 193
SCHEDULE II
BANK ADDRESSES
<TABLE>
<CAPTION>
Bank Address
---- -------
<S> <C>
Bankers Trust Company 130 Liberty Street
New York, NY 10006
Attn: Jim Reilly
Tel: (212) 250-9545
Fax: (212) 250-7218
Bayerische Vereinsbank, AG 150 East 42nd Street
New York Branch 19th Floor
New York, NY 10017-4679
Attn: Ebner V. Eschenbach
Tel.: (212) 672-5778
Fax.: (212) 672-5516
Compagnie Financiere de CIC et de L'Union Europeenne 520 Madison Avenue
37th Floor
New York, New York
Attn: Marcus Edward
Tel.: (212) 715-4427
Fax.: (212) 715-4535
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., 300 South Wacker Drive
"Rabobank Nederland", New York Branch Suite 3500
Chicago, IL 60606
Attn: Douglas W. Zylstra
Dresdner Bank AG New York & 75 Wall Street
Grand Cayman Branches New York, New York 10005
Attn: Robert Grella
Tel.: (212) 429-2252
Fax.: (212) 459-2129
Goldman Sachs Credit Partners L.P. 85 Broad Street
New York, NY 10004
Attn: Steve B. King
-or-
Lola K. Small
Tel: (212) 902-1000
Fax: (212) 346-2793 (King)
(212) 357-4597 (Small)
</TABLE>
<PAGE> 194
Schedule II
Page 2
<TABLE>
<S> <C>
Imperial Bank 9920 S. La Cienega Boulevard
Inglewood, CA 90301
Attn: Mark W. Campbell
Tel.: (310) 417-5886
Fax.: (310) 417-5997
Massachusetts Mutual Life 1295 State Street
Insurance Company Springfield, MA 01111
Attn: John Wheeler
Tel.: (413) 744-6228
Fax.: (413) 744-2022
The Mitsubishi Trust and 520 Madison Avenue
Banking Corporation 26th Floor
New York, New York 10022
Attn: Dan Chang
Tel.: (212) 891-8218
Fax.: (212) 644-6825
Morgan Stanley Senior Funding, Inc. 1585 Broadway
10th Floor
New York, NY 10036
Attn: James Morgan
Tel.: (212) 761-4866
Fax.: (212) 761-0592
National City Bank 1900 E. Ninth Street
Cleveland, Ohio 44144
Attn: Andrew J. Walshaw
Tel.: (216) 575-2193
Fax.: (216) 222-0003
National Westminster Bank PLC c/o Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, CT 06830
Attn: Rick Jacoby
Tel.: (203) 618-2510
Fax.: (203) 618-2520
</TABLE>
<PAGE> 195
Schedule II
Page 3
<TABLE>
<S> <C>
NationsBank, N.A. 901 Main Street
64th Floor
Dallas, TX 75202
Attn: Jennifer Zyclney
Tel: (214) 508-2752
Fax: (214) 508-9390
Octagon Loan Trust 380 Madison Avenue
12th Floor
New York, NY 10017
Attn: Andrew D. Gordon
Tel.: (212) 622-3064
Fax.: (212) 622-3797
Prime Income Trust c/o Morgan Stanley Dean Witter Advisors
72nd Floor
Two World Trade Center
New York, NY 10048
Tel.: (212) 392-5845
Fax.: (212) 392-5345
The Sakura Bank 277 Park Avenue
New York, NY 10172
Attn: Mickey Chadma
Tel.: (212) 756-6875
Fax.: (212) 888-7651
Salomon Brothers Holding Company Inc. Seven World Trade Center
New York, New York 10048
Attn: Caesar Wyszomirski
Tel.: (212) 783-7000
Fax.: (212) 816-6000
Sankaty High Yield Partners, L.P. Two Copley Place
Boston, MA 02116
Attn: Diane J. Exter
Tel.: (617) 572-3216
Fax.: (617) 572-3274
Stanfield Capital Partners 175 Water Street
New York, NY 10038
Attn: Susan McKoyce
Tel.: (212) 602-3656
Fax.: (212) 602-3669
</TABLE>
<PAGE> 196
Schedule II
Page 4
<TABLE>
<S> <C>
Southern Pacific Bank 12300 Wilshire Boulevard
Los Angeles, CA 90025
Attn: Cheryl A. Wasilowski
Tel.: (310) 442-3923
Fax.: (310) 207-4067
Summit Bank 301 Carnegie Center
CN 5316
Princeton, NJ 08543-5316
Attn: Catherine O'Brien
Tel.: (609) 987-3615
Fax.: (609) 734-9125
The Travelers Insurance Company One Tower Square
Hartford, CT 06183-2030
Attn: Allen R. Cantrell
Tel.: (860) 954-2346
Fax.: (860) 954-5243
Union Bank of California, N.A. 445 South Figueroa Street, 615-075
Los Angeles, CA 90071
Attn: Michael McShane
Tel.: (213) 236-5045
Fax.: (213) 236-5747
</TABLE>
<PAGE> 1
EXHIBIT 10.4
CAPSTAR BROADCASTING CORPORATION PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "AGREEMENT"), dated as of May 29, 1998, made by
CAPSTAR BROADCASTING CORPORATION, a Delaware corporation (the "PLEDGOR"), to
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware corporation, as
collateral agent (in such capacity, the "PLEDGEE"), for the benefit of (a) on a
senior basis, Chancellor Media Corporation of Los Angeles (the "SENIOR
CREDITOR"), and (b) on a basis junior and fully subordinated to the Senior
Creditor (i) the Banks, the Agent (as hereinafter defined) and the Co-Agents (as
hereinafter defined) from time to time party to the Credit Agreement hereinafter
referred to (such Banks, the Agent and the Co-Agents, the "SUBORDINATED NOTE
CREDITORS"), and (ii) any Bank that enters into an interest rate protection
agreement (including, without limitation, interest rate swaps, caps, floors,
collars and similar agreements, collectively the "INTEREST RATE PROTECTION
AGREEMENTS") guaranteed by the Pledgor, even if such Bank subsequently ceases to
be a Bank under the Credit Agreement for any reason and for so long as any such
Bank participates in the extension of any such Interest Rate Protection
Agreements, and any subsequent assignees (collectively, the "INTEREST RATE
PROTECTION CREDITORS" and, together with the Subordinated Note Creditors, the
"SUBORDINATED CREDITORS"), and, together with the Senior Creditor, the "SECURED
CREDITORS"). All capitalized terms used herein shall have the meanings provided
in Section 16 of this Agreement and, if not so defined herein, capitalized terms
used herein and defined in the Credit Agreement shall be used herein as so
defined.
W I T N E S S E T H:
WHEREAS, the Pledgor is indebted to the Senior Creditor pursuant to a
Capstar Broadcasting Corporation Senior Secured Term Note dated as of May 29,
1998, in the original principal amount of $150,000,000.00, made payable by
Pledgor to Senior Creditor (as used herein, the term "SENIOR NOTE" means the
Note described above in this paragraph, as the same may be amended, modified,
extended, renewed, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring all or any portion of the
Indebtedness under such Note);
WHEREAS, the Pledgor, Capstar Broadcasting Partners, Inc. ("CAPSTAR
BROADCASTING"), Capstar Radio Broadcasting Partners, Inc. ("CAPSTAR RADIO"), the
various Banks from time to time party thereto, Bankers Trust Company, as a
Co-Arranger and as Administrative Agent (in its capacity as Administrative
Agent, the "AGENT"), NationsBank, N.A., as a Co-Arranger and as Syndication
Agent, and Solomon Brothers Holding Company Inc. and Goldman, Sachs Credit
Partners L.P., as Co-Arrangers and as Documentation Agents (Agent, Syndication
Agent, Co-Arrangers and Documentation Agents are collectively, the "CO-AGENTS")
entered into a Credit Agreement, dated as of May 29, 1998, providing for the
making of Loans and the issuance of, and participation in, Letters of Credit as
contemplated therein (as used herein, the term "CREDIT AGREEMENT" means the
Credit Agreement described above in this paragraph, as the same may be amended,
modified, extended, renewed, restated or supplemented from time to time, and
including any agreement extending the maturity of, or restructuring all or any
portion of the Indebtedness under such agreement or any successor agreements);
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WHEREAS, the Pledgor (i) has guaranteed the obligations of Capstar
Radio under the Credit Agreement pursuant to Section 14 thereof (the "CREDIT
AGREEMENT GUARANTY"), and (ii) may at any time and from time to time guaranty
the obligations of Capstar Radio under one or more Interest Rate Protection
Agreements with one or more Interest Rate Protection Creditors (the "INTEREST
RATE PROTECTION GUARANTIES");
WHEREAS, the obligations of the Pledgor in respect of (a) its
guaranties referred to above and (b) the Senior Note, shall be secured hereunder
as provided herein;
WHEREAS, it is a condition precedent to each of the above-described
extensions of credit that the Pledgor shall have executed and delivered to the
Pledgee this Agreement;
WHEREAS, the Pledgor desires to execute and deliver this Agreement to
satisfy the conditions described in the preceding paragraph;
A G R E E M E N T:
NOW, THEREFORE, in consideration of the above-described extensions of
credit made and to be made and other benefits accruing to the Pledgor, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor hereby
makes the following representations and warranties to the Pledgee for the
benefit of the Secured Creditors and hereby covenants and agrees with the
pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for (x) the senior benefit of the Senior Creditor, and (y) the benefit,
on a basis junior and fully subordinated to the Senior Creditor, of the
Subordinated Creditors to secure:
(a) the full and prompt payment of all obligations and
indebtedness of the Pledgor to the Senior Creditor under the Senior
Note due and owing as a result of the prepayment provisions of the
Senior Note or by acceleration (but specifically excluding any
obligations and indebtedness due and owing solely as a result of the
occurrence of the Stated Maturity Date (as defined in the Senior Note))
and the due performance and compliance by the Pledgor with all of the
terms, conditions and agreements contained in the Senior Note (all such
obligations and liabilities described in this clause (a), the "SENIOR
OBLIGATIONS");
(b) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
indebtedness of the Pledgor to the Subordinated Creditors under the
Credit Agreement Guaranty and the due performance and compliance by the
Pledgor with all of the terms, conditions and agreements contained in
the Credit Agreement Guaranty (all such obligations and liabilities in
this clause (b), the "CREDIT AGREEMENT OBLIGATIONS");
(c) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
liabilities owing by the Pledgor to the Interest Rate Protection
Creditors under, or with respect to, any Interest Rate Protection
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<PAGE> 3
Guaranty, whether such Interest Rate Protection Guaranty is now in
existence or hereafter arising, and the due performance and compliance
by the Pledgor with the terms, conditions and agreements contained
therein (all such obligations and liabilities described in this clause
(c), the "INTEREST RATE PROTECTION OBLIGATIONS") and, together with the
Credit Agreement Obligations, the "SUBORDINATED OBLIGATIONS");
(d) any and all sums advanced by the Pledgee in order to
preserve the Collateral or preserve its security interest in the
Collateral in a manner not in violation of the terms hereof; and
(e) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of the
Pledgor, Capstar Broadcasting and/or Capstar Radio referred to in
clauses (a) through (d), after an Event of Default shall have occurred
and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court
costs.
All such obligations, liabilities, sums and expenses set forth in clauses (a)
through (e) of this Section 1 being herein collectively called the
"OBLIGATIONS," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF STOCK. As used herein, the term "STOCK" shall
mean all of the issued and outstanding shares of common stock of Capstar
Broadcasting at any time owned by the Pledgor. The Pledgor represents and
warrants to the Senior Creditors and the Subordinated Creditors that on the date
hereof (a) the Stock consists of the number and type of shares of the stock of
Capstar Broadcasting as described in Annex A hereof; (b) the Stock constitutes
that percentage of the issued and outstanding common stock of Capstar
Broadcasting as is set forth in Annex A hereto; (c) the Pledgor is the holder of
record and sole beneficial owner of the Stock and there exist no options or
preemption rights in respect of any of the Stock; and (d) the Stock constitutes
all of the issued and outstanding shares of common stock of Capstar
Broadcasting.
3. PLEDGE OF STOCK, ETC.
3.1 PLEDGE. (a) To secure the Obligations and for the purposes
set forth in Section 1, the Pledgor hereby: (i) grants to the Pledgee for the
benefit of (A) the Senior Creditor, a senior security interest in all of the
Collateral, and (B) the Subordinated Creditors, a security interest, junior and
fully subordinated to the security interest granted for the benefit of the
Senior Creditor above, in all of the Collateral; (ii) pledges and deposits as
security with the Pledgee all Stock owned by the Pledgor on the date hereof and
delivers to the Pledgee certificates therefor, accompanied by undated stock
powers duly executed in blank by the Pledgor; and (iii) assigns, transfers,
hypothecates, mortgages, charges and sets over to the Pledgee all of the
Pledgor's right, title and interest in and to the Stock (and in and to the
certificates evidencing the Stock), to be held by the Pledgee, upon the terms
and conditions set forth in this Agreement.
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<PAGE> 4
(b) The security interest granted to the Pledgee for the
benefit of each Subordinated Creditor shall be junior and fully subordinated to
the security interest in the Collateral granted to the Pledgee for the benefit
of the Senior Creditor, it being understood that each Subordinated Creditor
agrees that no distribution or payment arising from the enforcement or other
realization of, and no distribution or payment in any bankruptcy, insolvency,
reorganization or similar proceeding of the Pledgor or any Subsidiary of the
Pledgor made in respect of or in recognition of, the security interest created
hereunder in respect of the Collateral shall be applied to the Obligations of
such Subordinated Creditor, or shall be for the benefit of such Subordinated
Creditor, until such time as all Senior Obligations (including, without
limitation, all interest accruing after the commencement of any such proceeding
at the contractual rate provided in the respective documentation, whether or not
permitted as an allowable claim) shall have been irrevocably paid in full in
cash or cash equivalents. It is further understood and agreed by each Secured
Creditor that the Pledgee shall take all actions to enforce, realize upon and
protect the security interests created hereunder in respect of the Collateral,
and shall assert all claims, and make all filings, in respect of the Collateral
or any portion thereof, under or in respect of any bankruptcy, insolvency,
reorganization or similar proceeding, only if and to the extent directed by the
Required Secured Creditors and no Secured Creditor acting individually or
together shall have the right to take any such action or assert any such claim.
3.2 SUBSEQUENTLY ACQUIRED STOCK. (a) If the Pledgor shall
acquire (by purchase, stock split, stock dividend, reclassification or
otherwise) any new, substituted or additional Stock at any time or from time to
time after the date hereof, the Pledgor will promptly thereafter pledge and
deposit such Stock (or certificates representing such Stock) as security with
the Pledgee and deliver to the Pledgee certificates therefor, accompanied by
undated stock powers duly executed in blank by the Pledgor, or such other
instruments of transfer as are acceptable to the Pledgee, and will promptly
thereafter deliver to the Pledgee a certificate executed by the president or any
vice president of the Pledgor describing such Stock and certifying that the same
has been duly pledged with the Pledgee hereunder.
(b) If the Pledgor acquires any subscriptions, warrants or any
other rights or options in connection with the Stock, all new stock or other
securities acquired through such subscriptions, warrants, rights or options by
the Pledgor shall be promptly pledged and delivered to the Pledgee, accompanied
by undated stock powers duly executed in blank by the Pledgor, or such other
instruments of transfer as are reasonably acceptable to the Pledgee, and will
promptly thereafter deliver to the Pledgee a certificate executed by the
president or any vice president of the Pledgor describing such Stock and
certifying that the same has been duly pledged with the Pledgor hereunder.
3.3 UNCERTIFICATED STOCK. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2, if any Stock (whether now owned or
hereafter acquired) are uncertificated securities, the Pledgor shall promptly
notify the Pledgee thereof, and shall promptly take all actions required to
perfect the security interest of the Pledgee under applicable law (including, in
any event, under Sections 8-313 and 8-321 of the New York Uniform Commercial
Code if applicable). The Pledgor further agrees to take such actions as the
Pledgee deems necessary or desirable to effect the foregoing and to permit the
Pledgee to exercise any of its rights and remedies hereunder, and agrees
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<PAGE> 5
to provide an opinion of counsel reasonably satisfactory to the Pledgee with
respect to any such pledge of uncertificated Stock promptly upon request of the
Pledgee.
3.4 DEFINITIONS OF PLEDGED STOCK AND COLLATERAL. All Stock at
any time pledged or required to be pledged hereunder is hereinafter called the
"PLEDGED STOCK"; and the Pledged Stock, together with all proceeds thereof,
including any securities and moneys received and at the time held by the Pledgee
hereunder, are hereinafter called the "COLLATERAL."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Stock which may be held (in the
discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned in
blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
subagent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an
Event of Default shall have occurred and be continuing and the Pledgee, acting
at the direction of the Required Secured Creditors, shall have notified the
Pledgor that the Pledgor may no longer exercise the rights referred to below
(except that no such notice shall be required in the case of a Bankruptcy
Default with respect to the Pledgor), the Pledgor shall be entitled to exercise
all voting rights attaching to any and all Pledged Stock, and to give consents,
waivers or ratifications in respect thereof; provided, that no vote shall be
cast or any consent, waiver or ratification given or any action taken which
would violate or be inconsistent with any of the terms of this Agreement, the
Senior Note or, after the Senior Lien Termination Date, any of the terms of the
Credit Agreement, or which would have the effect of impairing the position or
interests of the Pledgee or the Senior Creditor or, after the Senior Lien
Termination Date, any other Secured Creditor. All such rights of the Pledgor to
vote and to give consents, waiver and ratifications shall cease in case an Event
of Default shall occur and be continuing and, except in the case of a Bankruptcy
Default with respect to the Pledgor, the Pledgee, acting at the direction of the
Required Secured Creditors, shall have notified the Pledgor of such cessation,
and Section 7 shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing (x) a Bankruptcy Default or Notified
Acceleration Event, or (y) any other Event of Default or Acceleration Event, but
in the case of this clause (y) only to the extent the Pledgee (acting at the
direction of the Required Secured Creditors) has so notified the Pledgor, all
dividends and distributions payable in respect of the Pledged Stock shall be
paid to the Pledgor, provided that the Pledgee shall be entitled to receive
directly, and to retain as part of the Collateral:
(a) all other or additional common stock (other than cash
or assets) paid or distributed by way of dividend or otherwise, as the
case may be, in respect of the Pledged Stock;
(b) all other or additional common stock paid or
distributed in respect of the Pledged Stock by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement;
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<PAGE> 6
(c) all other or additional common stock which may be paid
in respect of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or similar
corporate reorganization; and
(d) unless the payment or any such cash dividend shall have
been consented to by the Pledgee (acting at the direction of the
Required Secured Creditors), any cash dividends or distributions
declared or paid in violation of the provisions of the Credit
Agreement.
Nothing contained in this Section 6 shall limit or restrict in any way
the Pledgee's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments which are received by the Pledgor contrary to the provisions of
this Section 6 or Section 7 shall be received in trust for the benefit of the
Pledgee, shall be segregated from other property or funds of the Pledgor and
shall be forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF SPECIFIED EVENTS. If there shall have
occurred and be continuing (x) a Bankruptcy Default or Notified Acceleration
Event or (y) any other Event of Default or Acceleration Event, but in the case
of this clause (y) only to the extent the Required Secured Creditors have so
directed, then and in every such case, the Pledgee shall be entitled to exercise
all of the rights, powers and remedies (whether vested in it by this Agreement
or by law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any applicable jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which the Pledgor hereby agrees to be
commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 to the Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to vote all or any part of the Pledged Stock (whether
or not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(the Pledgor hereby irrevocably constituting and appointing the Pledgee
the irrevocable proxy and true and lawful attorney-in-fact of the
Pledgor, with full power of substitution to do so; it being agreed and
understood that the Pledgee is under no circumstances obligated by the
terms of this Agreement to exercise such rights); and
(d) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale of adjournment thereof or to
redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such
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<PAGE> 7
terms as the Pledgee in its absolute discretion may determine, provided
that at least 10 days' notice of the time and place of any such sale
shall be given to the Pledgor. The Pledgee shall not be obligated to
make any such sale of Collateral regardless of whether any such notice
of sale has theretofore been given. The Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshaling the Collateral and any
other security for the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of a Class
(or, to the extent agreed to by the Required Creditors of each such
Class, two or more Classes acting together) may bid for and purchase
all or any part of the Collateral so sold free from any such right or
equity of redemption. Neither the Pledgee nor any Secured Creditor
shall be liable for failure to collect or realize upon any or all of
the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement, or now or hereafter
existing at law or in equity or by statute shall be cumulative and concurrent
and shall be in addition to every other such right, power or remedy. The
exercise or beginning of the exercise by the Pledgee or any Secured Creditor of
any one or more of the rights, powers or remedies provided for in this
Agreement, or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
or any Secured Creditor of all such other rights, powers or remedies, and no
failure or delay on the part of the Pledgee or any Secured Creditor to exercise
any such right, power or remedy shall operate as a waiver thereof. No notice to
or demand on the Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any Secured Creditor to any other or further
action in any circumstances without notice or demand.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral through
enforcement, realization hereunder or otherwise, together with all other moneys
received by the Pledgee hereunder in respect of any Collateral, shall first be
applied to the payment of all costs and expenses incurred by the Pledgee in
connection with such sale or disposition, the delivery of the Collateral or the
collection of any such moneys (including, without limitation, reasonable
attorneys' fees and expenses) and the balance of such moneys (the "REMAINING
PROCEEDS") shall be applied by the Pledgee as required below.
(b) Before the Senior Lien Termination Date and so long as
any Senior Obligations remain unpaid, the Remaining Proceeds shall be applied to
satisfy the Senior Obligations.
(c) Either (i) before the Senior Lien Termination Date and
after the payment in full of all Senior Obligations or (ii) after the Senior
Lien Termination Date and, in either case, so long as any Subordinated
Obligations remain unpaid, any Remaining Proceeds not theretofore distributed
pursuant to the foregoing provisions of this Section 9 shall be applied to
satisfy the Subordinated Obligations, with each Subordinated Creditor to receive
an amount equal to its outstanding Subordinated Obligations or, if insufficient
proceeds are available for the payment in
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<PAGE> 8
full of all outstanding Subordinated Obligations, its Pro Rata Share of the
amount required to be distributed pursuant to this clause.
(d) As used in clause (c) above, "Pro Rata Share" shall
mean, when calculating a Subordinated Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction, the
numerator of which is the unpaid amount of its Principal Subordinated
Obligations owing to it (or if there are no unpaid Principal Subordinated
Obligations, the remaining Subordinated Obligations owed it) and the denominator
of which is the outstanding principal amount of all Subordinated Obligations (or
if there are no unpaid Principal of Subordinated Obligations, the remaining
Subordinated Obligations owned to the Subordinated Creditors). If a payment to
any Subordinated Creditor of its Pro Rata Share of any distribution would result
in an overpayment of the Subordinated Obligations of such Subordinated Creditor,
such excess amount shall instead be distributed to the unpaid Subordinated
Obligations of the other Subordinated Creditors, which each Subordinated
Creditor whose Subordinated Obligations have not been paid in full to receive an
amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Subordinated Obligations of such Subordinated Creditor and
the denominator of which is the unpaid Subordinated Obligations of all
Subordinated Creditors.
(e) All payments required to be made to Subordinated Note
Creditors hereunder shall be made to the Agent under the Credit Agreement for
the account of the respective Subordinated Note Creditors. All payments required
to be made to Interest Rate Protection Agreement Creditors hereunder shall be
made to the paying agent under the applicable Interest Rate Protection
Agreement, or in the case of Interest Rate Protection Agreements without a
paying agent, directly to the applicable Interest Rate Protection Agreement
Creditor.
(f) For purposes of applying payments received in
accordance with this Section 9, the Pledgee shall be entitled to rely (i) upon
the Agent, for a determination (which the Agent agrees to provide upon request
of the Pledgee) of the unpaid Credit Agreement Obligations and, (ii) upon any
Interest Rate Protection Agreement Creditor, for a determination (which each
Interest Rate Protection Agreement Creditor agrees to provide upon request of
the Pledgee) of the unpaid Interest Rate Protection Obligations owed to such
Interest Rate Protection Agreement Creditor. Unless it has actual knowledge
(including by way of written notice from a Secured Creditor) to the contrary,
the Agent, in furnishing information pursuant to the preceding sentence, and the
Pledgee in acting hereunder, shall be entitled to assume that no obligations
other than principal, interest and regularly accruing fees are owing to any
Secured Creditor.
(g) Any Remaining Proceeds not otherwise applicable or
applied pursuant to this Section 9 shall be paid over the Pledgor pursuant to
the terms of Section 19.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by
the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
8
<PAGE> 9
11. INDEMNITY. The Pledgor agrees to indemnify and hold harmless
the Pledgee and each Secured Creditor and their respective successors, assigns,
employees, agents and servants (individually an "INDEMNITEE," and collectively
the "INDEMNITEES") from and against any and all claims, demands, losses,
judgments and liabilities (including liabilities for penalties) of whatsoever
kind or nature, and to reimburse each Indemnitee for all costs and expenses,
including reasonable attorneys' fees, growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under the other Financing Documents, provided that the Pledgor
shall not be required to indemnify any Indemnitee in respect of any claims,
demands, losses, judgments, liabilities, costs or expenses arising from the
gross negligence or willful misconduct of such Indemnitee. In no event shall any
Indemnitee be liable, in the absence of gross negligence or willful misconduct
on its part, for any matter or thing in connection with this Agreement other
than to account for moneys actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of the Pledgor under this
Section 11 are unenforceable for any reason, the Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law. The Pledgor agrees that upon written
notice by any Indemnitee of the assertion of any liability, obligation, damage,
injury, penalty, claim, demand, action, suit or judgment, the Pledgor shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify the Pledgor of any such assertion of
which such Indemnitee has knowledge.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor agrees
that it will join with the Pledgee in executing and, at its own expense, file
and refile under the Uniform Commercial Code or other applicable law such
financing statements, continuation statements and other documents in such
offices as the Pledgee may reasonably deem necessary or appropriate and wherever
required by law in order to perfect and preserve the Pledgee's security interest
in the Collateral and hereby authorizes the Pledgee to file financing statements
and amendments thereto relative to all or any part of the Collateral without the
signature of the Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments (including, without
limitation, proxies and dividend payment orders) as the Pledgee may reasonably
require or deem advisable to carry into effect the purposes of this Agreement or
to further assure and confirm unto the Pledgee its rights, powers and remedies
hereunder.
(b) The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may
reasonably deem necessary or advisable to accomplish the purposes of this
Agreement.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed that the obligations
of the Pledgee as holder of the Collateral and interests therein and with
respect to the disposition thereof, and otherwise under this Agreement, are only
those expressly set forth in this Agreement. The Pledgee shall act hereunder on
the terms and conditions set forth herein and in Annex B hereto.
9
<PAGE> 10
14. TRANSFER BY THE PLEDGOR. Except for sales of Collateral
permitted (a) after the Senior Lien Termination Date, pursuant to the Credit
Agreement, or (b) at any time with the written consent of the Required Secured
Creditors, the Pledgor will not sell or otherwise dispose of, grant any option
with respect to, or mortgage, pledge or otherwise encumber any of the Collateral
or any interest therein except in accordance with the terms of this Agreement.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. The
Pledgor represents and warrants that (a) it is, or at the time when pledged
hereunder will be, the legal, record and beneficial owner of, and has (or will
have) good and merchantable title to, all the Pledged Stock, subject to no Lien
(except the Lien created by this Agreement); (b) it has full corporate power,
authority and legal right to pledge all the Pledged Stock pursuant to this
Agreement; and (c) all the shares of the Pledged Stock have been duly and
validly issued, are fully paid and non-assessable and are subject to no option
to purchase or similar rights. The Pledgor covenants and agrees that it will
defend the Pledgee's right, title and security interest in and to the Pledged
Stock and the proceeds thereof against the claims and demands of all Persons
whomsoever; and the Pledgor covenants and agrees that it will have like title to
and right to pledge any other property at any time hereafter pledged to the
Pledgee as collateral hereunder and will likewise defend the rights thereto and
security interest therein of the Pledgee and the Secured Creditors.
16. DEFINITIONS. The following terms shall have the meanings
herein specified unless the context otherwise requires. Such definitions shall
be equally applicable to the singular and plural forms of the terms defined.
"ACCELERATION EVENT" shall mean the acceleration prior to the
stated final maturity, or the failure to pay at stated final maturity, of
Obligations representing borrowed money or extensions of credit (including,
without limitation, all Letters of Credit Outstanding) pursuant to the Senior
Note, the Credit Agreement, or any Interest Rate Protection Agreement, provided,
that in each case, any such Acceleration Event shall cease to exist upon payment
in full of the Obligations so accelerated or not paid.
"AGREEMENT" shall have the meaning provided in the first
paragraph hereof.
"BANKRUPTCY DEFAULT" shall mean any Event of Default with
respect to the Pledgor pursuant to Section 10.05 of the Credit Agreement or
under any analogous provision of any of the Financing Documents.
"CAPSTAR BROADCASTING" shall have the meaning provided in the
second WHEREAS clause.
"CAPSTAR RADIO" shall have the meaning provided in the second
WHEREAS clause.
"CLASS" shall mean each class of Secured Creditors, i.e., (a)
the Senior Creditor as holder of the Senior Obligations, (b) the Subordinated
Note Creditors as holders of the Credit Agreement Obligations, and (c) the
Interest Rate Protection Creditors as holders of the Interest Rate Protection
Obligations.
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<PAGE> 11
"COLLATERAL" shall have the meaning provided in Section 3.4.
"CREDIT AGREEMENT" shall have the meaning provided in the
second WHEREAS clause.
"CREDIT AGREEMENT GUARANTY" shall have the meaning provided in
the third WHEREAS clause.
"CREDIT AGREEMENT OBLIGATIONS" shall have the meaning provided
in Section 1(b).
"EVENT OF DEFAULT" shall mean (a) before the Senior Lien
Termination Date, each Event of Default under, and as defined in, the Senior
Note, and (b) after the Senior Lien Termination Date, each Event of Default
under, and as defined in, the Credit Agreement.
"FINANCING DOCUMENTS" shall mean the Senior Note, the Credit
Agreement, the other Credit Documents (as defined in the Credit Agreement) and
each Interest Rate Protection Agreement.
"INTEREST RATE PROTECTION AGREEMENT" shall have the meaning
provided in the first paragraph hereof.
"INTEREST RATE PROTECTION AGREEMENT CREDITOR" shall have the
meaning provided in the first paragraph hereof.
"INTEREST RATE PROTECTION OBLIGATIONS" shall have the meaning
provided in Section 1(c).
"LETTER OF CREDIT OUTSTANDING" shall have the meaning provided
in the Credit Agreement.
"LIEN" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the Uniform Commercial Code, as in effect in any applicable jurisdiction, or any
other similar recording or notice statute, and any lease having substantially
the same effect as any of the foregoing).
"NOTIFIED ACCELERATION EVENT" shall mean any Acceleration
Event with respect to which the Required Secured Creditors have given written
notice to the Pledgee that a "Notified Acceleration Event" exists, provided that
such written notice may only be given if such Acceleration Event is continuing
and, provided further that any such Notified Acceleration Event shall cease to
exist once there is no longer any Acceleration Event with respect thereto in
existence.
"OBLIGATIONS" shall have the meaning provided in the last
clause of Section 1.
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<PAGE> 12
"PERSON"shall mean any individual, partnership, joint venture,
limited liability company, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PLEDGEE" shall have the meaning provided in the first
paragraph hereof; provided that each reference to "Pledgee" contained herein
(including in Annex B attached hereto) shall include any successor thereto.
"PLEDGOR" shall have the meaning provided in the first
paragraph hereof.
"PRINCIPAL SUBORDINATED OBLIGATIONS" shall mean (a) for each
Subordinated Note Creditor, the sum of (1) the outstanding principal amount of
Loans (as defined in the Credit Agreement) made by it plus (2) its Adjusted RL
Percentage (as defined in the Credit Agreement) of all Letters of Credit
Outstanding, and (b) for each Interest Rate Protection Creditor, the unpaid
amount of any termination or similar fee payable to such creditor pursuant to
its respective Interest Rate Protection Agreement.
"REMAINING PROCEEDS" shall have the meaning provided in
Section 9(a).
"REQUIRED BANKS" shall have the meaning provided in the Credit
Agreement.
"REQUIRED CREDITORS" of any Class shall mean (a) with respect
to the Senior Obligations, the Senior Creditor, (b) with respect to the Credit
Agreement Obligations, the Required Banks, and (c) with respect to the Interest
Rate Protection Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements.
"REQUIRED SECURED CREDITORS" shall have the meaning provided
in Section 4 of Annex B hereto.
"SECURED CREDITORS" shall have the meaning provided in the
first paragraph hereof.
"SENIOR CREDITOR" shall have the meaning provided in the first
paragraph hereof.
"SENIOR LIEN TERMINATION DATE" shall have the meaning provided
in Section 19(a)(ii).
"SENIOR OBLIGATIONS" shall have the meaning provided in
Section 1(b).
"SENIOR NOTE" shall have the meaning provided in the first
WHEREAS clause.
"SUBORDINATED CREDITORS" shall have the meaning provided in
the first paragraph hereof.
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<PAGE> 13
"SUBORDINATED NOTE CREDITORS" shall have the meaning provided
in the first paragraph hereof.
"SUBORDINATED OBLIGATIONS" shall have the meaning provided in
Section 1(c).
17. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any of the Financing Documents or any other instrument or agreement
referred to therein, or any assignment or transfer of any thereof; (b) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect to any such agreement or instrument including, without limitation, this
Agreement; (c) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the Pledgee
or its assignee; (d) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof; or
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to the Pledgor or any
subsidiary of the Pledgor, or any action taken with respect to this Agreement by
any trustee or receiver, or by any court, in any such proceeding, whether or not
the Pledgor shall have notice or knowledge of any of the foregoing. The Pledgor
hereby waives any right to require that an action be brought against any other
Person prior to the exercise of the remedies hereunder.
18. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing (i) a Bankruptcy Default or Notified Acceleration Event or (ii) any
other Event of Default or Acceleration Event, but in the case of this clause
(ii) only to the extent the Required Secured Creditors have so directed, then in
either such case, upon receipt by the Pledgor from the Pledgee of a written
request or requests that the Pledgor cause any registration, qualification or
compliance under any Federal or state securities law or laws to be effected with
respect to all or any part of the Pledged Stock (it being understood that the
Pledgee shall not under any circumstances be required to make such request), the
Pledgor as soon as practicable and at its expense will use its best efforts to
cause such registration to be effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Pledged Stock, including, without limitation, registration under the Securities
Act of 1933, as then in effect (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with any other governmental requirements,
provided that the Pledgee shall furnish to the Pledgor such information
regarding the Pledgee as the Pledgor may reasonably request in writing and as
shall be required in connection with any such registration, qualification or
compliance. The Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee and all others participating in the distribution of such Pledged Stock
against all claims, losses, damages and liabilities caused by any untrue
statement (or alleged untrue statement) of a material fact contained therein (or
in any related
13
<PAGE> 14
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to the Pledgor by the Pledgee expressly for use
therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Stock pursuant to
Section 7, and such Pledged Stock or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Stock or part thereof by private sale in such manner and under
such circumstances as Pledgee may deem necessary or advisable in order that such
sale may legally be effected without such registration. Without limiting the
generality of the foregoing, in any such event the Pledgee, in its sole and
absolute discretion (i) may proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged Stock
or part thereof shall have been filed under such Securities Act, (ii) may
approach and negotiate with a single possible purchaser to effect such sale, and
(iii) may restrict such sale to a purchaser who will represent and agree that
such purchaser is purchasing for its own account, for investment, and not with a
view to the distribution or sale of such Pledged Stock or part thereof. In the
event of any such sale, the Pledgee shall incur no responsibility or liability
for selling all or any part of the Pledged Stock at a price which the Pledgee,
in its sole and absolute discretion, may in good faith deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might be realized if the sale were deferred until after registration as
aforesaid.
19. TERMINATION; RELEASE. (a) It is expressly acknowledged and
agreed that the Liens and security interests granted under this Agreement for
the benefit of the Senior Creditor (i) with respect to all or any portion of the
Collateral, may be released in writing at any time by the Senior Creditor
hereunder, and (ii) with respect to all or any portion of the Collateral, shall
be released on the date on which Senior Note has terminated and all Senior
Obligations have been paid in full (the "SENIOR LIEN TERMINATION DATE"). Upon
any release of the type described in the immediately preceding sentence, the
Pledgee shall, at the request and expense of the Pledgor, release the Collateral
being released and execute and deliver to the Pledgor a proper instrument or
instruments acknowledging the release of such Collateral from this Agreement,
and will duly assign, transfer and deliver to the Pledgor (without recourse and
without any representation or warranty) the Collateral being released as
described above.
(b) Following the date on which all Obligations have been
paid in full and all Financing Documents shall have terminated, this Agreement
shall terminate, and the Pledgee, at the request and expense of the Pledgor,
will execute and deliver to the Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and will duly
assign, transfer and deliver to the Pledgor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Pledgee and has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any moneys at the time held
by the Pledgee hereunder.
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<PAGE> 15
20. NOTICES, ETC. All notices and other communications hereunder
shall be in writing and shall be delivered or mailed by first class mail,
postage prepaid, addressed as follows:
(a) if to the Pledgor, at:
Capstar Broadcasting Corporation
600 Congress Avenue, Suite 1400
Dallas, Texas 78705
Attention: Mr. William S. Banowsky
Facsimile No.: (512) 404-6850
(b) if to the Pledgee, at:
Chancellor Media Corporation of Los Angeles
433 East Las Colinas Boulevard, Suite 1130
Irving, Texas 75039
Attention: Mr. Jeffrey A. Marcus
Mr. Matthew E. Devine
Facsimile No.: (972) 869-3671
with a copy to:
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Suite 1300
Washington, D.C. 2004
Attention: Mr. Eric L. Bernthal, Esq.
Facsimile No.: (202) 637-2201
(c) if to any Subordinated Note Creditor, either (i) to
the Agent, at the address of the Agent specified in the Credit Agreement or (ii)
at such address as such Subordinated Note Creditor shall have specified in the
Credit Agreement;
(d) if to any Interest Rate Protection Creditor, either
(i) to the paying agent or other representative for the Interest Rate Protection
Creditors, at such address as such representative may have provided to the
Pledgor and the Pledgee from time to time, or (ii) directly to the Interest Rate
Protection Creditors at such address as the Interest Rate Protection Creditors
shall have specified in writing to the Pledgor and the Pledgee;
21. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Pledgor and the Pledgee (with the written
consent of the Required Secured Creditors), provided, however, that no
modifications shall be made to Section 9 of this Agreement without the consent
of each Secured Creditor adversely affected thereby; and provided further, that
any change, waiver, modification or variance affecting the rights and benefits
of a single Class of Secured Creditors (and
15
<PAGE> 16
not Secured Creditors in a like or similar manner) shall require the written
consent of the Required Creditors or such Class of Secured Creditors.
22. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement shall
be construed and enforced in accordance with and governed by the law of the
State of New York. The headings in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto.
23. WAIVER OF JURY TRIAL. THE PLEDGOR HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
24. PLEDGEE AS SECURED PARTY. It is hereby agreed by Pledgor that
the Pledgee may, with the consent of the Required Secured Creditors and at the
request of the Required Secured Creditors of a specific Class or Classes
comprised of Subordinated Creditors, act to foreclose upon the Collateral as a
"secured party" under the Uniform Commercial Code as in effect in any applicable
jurisdiction acting solely upon behalf of such Class or Classes, and in
connection with such foreclosure, to bid on Obligations held by such Class or
Classes. In any event, the Pledgee would not be acting as, and would not
constitute, a "secured party" in respect of the Classes holding superior
obligations to those held by the Class or Classes for which the Pledgee would be
acting, and in such event the Liens and security interests created by this
Agreement would remain in full force and effect with respect to such superior
obligations. It is agreed and acknowledged that the Required Secured Creditors
shall have no obligation to, and shall incur no liability to any Person in
refusing to consent to the Pledgee acting as contemplated by this Section 24.
25. SEVERABILITY. If any Section of this Agreement or any part
thereof shall for any reason be held or adjudged to be invalid, illegal or
unenforceable by any court of competent jurisdiction, such Section or part
thereof so adjudicated invalid, illegal or unenforceable shall be deemed
separate, distinct and independent, and the remainder of this Agreement shall
remain in full force and effect and shall not be affected by such holding or
adjudication.
26. FCC COMPLIANCE. Notwithstanding anything contained herein
which may be construed to the contrary, no action shall be taken by the Pledgee
which may require the consent or approval of the Federal Communications
Commission (the "FCC") unless and until all requirements of the Communications
Act of 1934, as amended (the "COMMUNICATIONS ACT"), requiring the consent or
approval of such action by the FCC have been satisfied. The Pledgor covenants
that, upon the request of the Pledgee, the Pledgor shall cause to be filed such
applications and such other actions as may be requested by the Pledgee to obtain
the consent or approval of the FCC to any action contemplated by this Agreement
and to give effect to the security interest of the Pledgee
16
<PAGE> 17
hereunder, including, without limitation, the execution of an application for
the consent of the FCC to an assignment or transfer involving a change in
ownership or control pursuant to the provisions of the Communications Act. The
Pledgor hereby irrevocably appoints the Pledgee its true and lawful
attorney-in-fact, from time to time after the occurrence and during the
continuance of an Event of Default, in its name and stead, to execute and file
all necessary applications with the FCC. The power of attorney granted hereby is
coupled with an interest and shall be irrevocable.
[remainder of page is intentionally left blank]
17
<PAGE> 18
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
CAPSTAR BROADCASTING CORPORATION,
as Pledgor
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES, as Collateral Agent, as Pledgee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
18
<PAGE> 19
ANNEX A
<TABLE>
<CAPTION>
No. of Shares Type Certificate No. % of Outstanding Common Stock
- ------------- ---- --------------- -----------------------------
<S> <C> <C> <C>
150,396,341 Class A 16 53.783631412%
Common
127,656,892 Class A 17 45.651717915%
Common
1,578,947 Class A 18 00.564651393%
Common
</TABLE>
Annex A-1
<PAGE> 20
ANNEX B
TO
CAPSTAR PLEDGE AGREEMENT
1. APPOINTMENT. The Secured Creditors (all capitalized terms used
herein and not otherwise defined shall have the respective meanings provided in
the Pledge Agreement to which this Annex B is attached (the "PLEDGE
AGREEMENT")), by their acceptance of the benefits of the Pledge Agreement,
hereby irrevocably designate Chancellor Media Corporation of Los Angeles as
Pledgee to act as specified herein and in the Pledge Agreement. Each Secured
Creditor hereby irrevocably authorizes, and each holder of any promissory note
which is secured pursuant to the Pledge Agreement (each a "NOTE" and
collectively the "NOTES") by the acceptance of such Note shall be deemed
irrevocably to authorize, the Pledgee to take such action on its behalf under
the provisions of the Pledge Agreement and any other instruments and agreements
referred to herein or therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Pledgee by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Pledgee may perform any of its duties
hereunder by or through its agents or employees.
2. NATURE OF DUTIES. The Pledgee shall have no duties or
responsibilities except those expressly set forth in the Pledge Agreement.
Neither the Pledgee nor any of its officers, directors, employees, consultants
or agents shall be liable for any action taken or omitted by it as such under
the Pledge Agreement or hereunder or in connection herewith or therewith, unless
caused by its or their gross negligence or willful misconduct. The duties of the
Pledgee shall be mechanical and administrative in nature; the Pledgee shall not
have by reason of the Pledge Agreement or any other Financing Document a
fiduciary relationship in respect of any Secured Creditor; and nothing in the
Pledge Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Pledgee any obligations in respect of the Pledge Agreement
except as expressly set forth herein.
3. LACK OF RELIANCE ON THE PLEDGEE. Independently and without
reliance upon the Pledgee, each Secured Creditor, to the extent it deems
appropriate, has made and shall continue to make (a) its own independent
investigation of the financial condition and affairs of the Pledgor and its
subsidiaries in connection with the making and the continuance of the
Obligations and the taking or not taking of any action in connection therewith,
and (b) its own appraisal of the creditworthiness of the Pledgor and its
subsidiaries, and the Pledgee shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Secured Creditor with any
credit or other information with respect thereto, whether coming into its
possession before the extension of obligations or the purchase of any Notes, or
at any time or times thereafter. The Pledgee shall not be responsible to any
Secured Creditor for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectability, priority or sufficiency of the
Pledge Agreement or the financial condition of the Pledgor or any Subsidiary of
the Pledgor or be required to make any inquiry concerning either the performance
or
Annex B-1
<PAGE> 21
observance of any of the terms, provisions or conditions of the Pledge
Agreement, or the financial condition of the Pledgor or any Subsidiary of the
Pledgor, or the existence or possible existence of any Event of Default.
4. CERTAIN RIGHTS OF THE PLEDGEE. No Secured Creditor shall have
the right to cause the Pledgee to take any action with respect to the
Collateral, with only the Required Secured Creditors (as hereinafter defined)
having the right to direct the Pledgee to take any such action. If the Pledgee
shall request instructions from the Required Secured Creditors with respect to
any act or action (including failure to act) in connection with the Pledge
Agreement, the Pledgee shall be entitled to refrain from such act or taking such
action unless and until it shall have received instructions from the Required
Secured Creditors, and to the extent requested, appropriate indemnification in
respect of actions to be taken; and the Pledgee shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Secured
Creditor shall have any right of action whatsoever against the Pledgee as a
result of the Pledgee acting or refraining from acting hereunder in accordance
with the instructions of the Required Secured Creditor. As used herein, the term
"REQUIRED SECURED CREDITORS" shall mean (a) prior to the Senior Lien Termination
Date, the Senior Creditor, and (b) thereafter, the Required Banks.
5. RELIANCE. The Pledgee shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or facsimile message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person, and, with respect to all legal matters pertaining to the
Pledge Agreement and its duties thereunder, upon advice of counsel selected by
it.
6. INDEMNIFICATION.
(a) To the extent the Pledgee is not reimbursed and
indemnified by the Pledgor and/or its subsidiaries, the Subordinated Creditors
will reimburse and indemnify the Pledgee, in proportion to their respective
principal amounts or accredited value, as the case may be, of obligations, for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Pledgee in performing its duties hereunder or under the Pledge Agreement, or in
any way relating to or arising out of the Pledge Agreement except for those
resulting solely from the Pledgee's own gross negligence or willful misconduct.
(b) Notwithstanding the foregoing, the obligations of the
Subordinated Creditors with respect to the indemnities referred to above shall
be without recourse to such Subordinated Creditors, with all liabilities for
such indemnity obligations to be satisfied from the proceeds of the foreclosure
on, the other disposition of, or any other realization upon the Collateral.
7. HOLDERS. The Pledgee may deem and treat the payee of any Note
as the owner thereof for all purposes hereof unless and until a written notice
of the assignment, transfer or endorsement thereof, as the case may be, shall
have been filed with the Pledgee. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the
Annex B-2
<PAGE> 22
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or endorsee, as the case may be, of such Note or any
Note(s) issued in exchange therefor.
8. RESIGNATION BY THE PLEDGEE.
(a) The Pledgee may resign from the performance of all its
functions and duties under the Pledge Agreement at any time by giving 20
Business Days prior written notice (as provided in the Pledge Agreement) to the
Pledgor and the Secured Creditors. Such resignation shall take effect upon the
appointment of a successor Pledgee pursuant to clauses (b), (c) and (d) below.
(b) Upon any such notice of resignation, the Required Secured
Creditors shall appoint a successor Pledgee hereunder who shall be a commercial
bank organized under the laws of the United States of America or any State
thereof and having combined capital and surplus of at least $500,000,000.
(c) If a successor Pledgee shall not have been so appointed
within said 20 Business Day period, the Pledgor shall then appoint a successor
Pledgee who shall serve as Pledgee hereunder or thereunder until such time, if
any, as the Required Secured Creditors appoint a successor Pledgee as provided
above.
(d) If no successor Pledgee is appointed pursuant to clauses
(b)and (c) above within said 20 business Day period the resignation of the
Pledgee shall become effective and the duties of the Pledgee shall be performed
by the Required Secured Creditors.
Annex B-3
<PAGE> 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 Goldman, Sachs Credit Partners L.P.,
as
Page 1 of 13
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
600 Congress Avenue, Suite 1400
Dallas, Texas 78705
Attention: William S. Banowsky, Jr.
Facsimile No.: (512) 404-6850
With a copy to:
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Attention: Mr. Michael Wortley
Facsimile No.: (214) 999-7732
Page 10 of 13
<PAGE> 11
(b) If to the holder hereof:
Chancellor Media Corporation of Los Angeles
433 East Las Colinas Blvd., Suite 1130
Irving, Texas 75039
Attention: Mr. Jeffrey A. Marcus
Mr. Matthew E. Devine
Facsimile No.: (972) 869-3671
With a copy to:
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Suite 1300
Washington, D.C. 20004
Attention: Eric L. Bernthal
Facsimile No.: (202) 637-2201
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. ss.ss. 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.
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<PAGE> 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
<PAGE> 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
<PAGE> 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
Bryan/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
<PAGE> 1
EXHIBIT 10.6
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL IN REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED
UNDER ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR
APPROVED BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF
COMMON STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT,
AS AMENDED, DATED AS OF OCTOBER 16, 1996, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 9,300,000 Shares of Class C Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING OCTOBER 16, 2006.
THIS IS TO CERTIFY THAT, for value received, R. Steven Hicks, or
registered assigns as a holder of this Warrant (the "Holder") is entitled to
purchase from the Company (as hereinafter defined) at any time or from time to
time prior to 5:00 p.m., Dallas, Texas time, October 16, 2006 at the place where
the Warrant Agency (as hereinafter defined) is located, at the Exercise Price
(as hereinafter defined) 7,440,000 shares of Class C common stock, par value
$.01 per share (the "Common Stock"), of the Company (the "A Warrant") and at the
Exercise Price 1,860,000 shares of the Common Stock (the "B Warrant", and,
collectively with the A Warrant, the "Warrant"), all subject to adjustment and
upon the terms and conditions as hereinafter provided; provided, however, that,
except as provided in Section 3.1, in no event may the B Warrant be exercised by
the Holder until the earlier to occur of June 30, 2001 or immediately preceding
the consummation of a Sale of the Company (as hereinafter defined); and provided
further, however, that the B Warrant shall terminate and not be exercisable
pursuant to the provisions of Section 3.1 or 3.2. The Holder shall designate at
the time of exercise whether the Holder is exercising an A Warrant or a B
Warrant and the number of shares of Common Stock to be purchased respectively
thereunder. This Warrant amends and restates, supersedes and replaces that
certain Warrant dated July 1, 1997, among the Company, the Initial Holder and
Capstar Broadcasting Partners, Inc.
Certain terms used in this Warrant are defined in Article V.
<PAGE> 2
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) whether the Holder is exercising an A
Warrant and/or a B Warrant, (ii) the number of shares of Common Stock to be
purchased under an A Warrant and/or a B Warrant, as applicable, (iii) the
denominations of the share certificate or certificates desired, and (iv) the
name or names in which such certificates are to the registered, (c) if the
Common Stock to be received upon the exercise of this Warrant has not been
registered under the Securities Act, a written certification in substantially
the form of the Certification attached hereto as Annex B, and (d) payment of the
Exercise Price with respect to such shares. Such payment may be made, at the
option of the Holder, by cash, money order, certified or bank cashier's check or
wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such notice.
Such certificate or certificates shall be deemed to have been issued, and such
Holder or any other Person so designated to be named therein shall be deemed for
all purposes to have become a holder of record of such shares, as of the date
the aforementioned notice is received by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant which shall then be returned to the Holder. The Company shall pay
all expenses, taxes (if any) and other charges payable in connection with the
preparation, issuance and delivery of share certificates and a new Warrant,
except that, if share certificates or a new Warrant shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the Holder
at the time of delivering the aforementioned notice of exercise or promptly upon
receipt of a written request of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Securities Act, shall bear the following legend:
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<PAGE> 3
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of this
security has not been reviewed or approved by any state securities
administrator."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
selected by the holder of such certificate and reasonably acceptable to the
Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of Common
Stock registered under the Securities Act, the Company may promptly appoint and
thereafter maintain, at its own expense, an agency in New York, New York, which
agency may be the Company's then existing transfer agent (the "Warrant Agency"),
for certain purposes specified herein, and shall give prompt notice of such
appointment (and appointment of any successor Warrant Agency) to the Holder.
Until an independent Warrant Agency is so appointed, the Company shall perform
the obligations of the Warrant Agency provided herein at its address as
specified on the signature page hereto or such other address as the Company
shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any Person
other than the Warrant Agency) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant Agency,
together with a written assignment of this Warrant duly executed by the Holder
or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon surrender
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in the instrument
of
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<PAGE> 4
assignment, and this Warrant shall promptly be canceled. The Warrant Agency
shall not be required to register any transfers if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel (who may be an
employee of such Holder) reasonably satisfactory to the Company that such
transfer is exempt from the registration requirements of the Securities Act and
applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon
surrender hereof to the Warrant Agency, together with a written notice
specifying the names and denominations in which the new Warrants are to be
issued, signed by the Holder. Subject to compliance with Section 2.3 as to any
transfer which may be involved in the division, the Company shall execute and
deliver new Warrants in exchange for the Warrant or Warrants to be divided in
accordance with such notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Termination of Employment.
(a) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's death, the B
Warrant shall become exercisable on the Date of Termination, and the Holder (or,
in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise the B Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) may, until the earlier to occur of
5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first anniversary of the
Date of Termination, exercise the B Warrant with respect to all or any part of
the shares of Common Stock purchasable under the B Warrant; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise the B Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) have
less than 90 days after the Date of Termination to exercise the B Warrant.
(b) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's Disability,
the B Warrant shall become exercisable on the Date of Termination, and the
Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) may, until the earlier to occur of 5:00 p.m., Dallas, Texas
time, on May 31, , 2003 or the first anniversary of the Date of Termination,
exercise the B Warrant with respect to all or any part of the shares of Common
Stock purchasable under the B Warrant; provided, however, that in no event will
the Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) have less than 90 days after the Date of Termination to
exercise the B Warrant.
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<PAGE> 5
(c) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment for Cause or the Initial Holder's resignation for other than Good
Reason, the Holder shall forfeit all of the Holder's rights under the B Warrant,
except as to those shares of Common Stock already purchased under the B Warrant,
and the B Warrant shall automatically, and without notice, terminate and become
null and void at 5:00 p.m., Dallas, Texas time, on the Date of Termination.
(d) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, without a Board Determination, the B Warrant shall become
exercisable on the Date of Termination, and the Holder may, until the earlier to
occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th day after
the Date of Termination, exercise the B Warrant with respect to all or any part
of the shares of Common Stock purchasable under the B Warrant; provided,
however, that in no event will the Holder have less than 90 days after the Date
of Termination to exercise the B Warrant.
(e) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, with a Board Determination, if the B Warrant has become
exercisable on or before the Date of Termination, then the Holder may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 30th
day after the Date of Termination, exercise the B Warrant with respect to all or
any part of the shares of Common Stock purchasable under the B Warrant;
provided, however, that in no event will the Holder have less than 30 days after
the Date of Termination to exercise the B Warrant. If the B Warrant has not
become exercisable on or before the Date of Termination, the B Warrant shall
automatically, and without notice, terminate and become null and void at 5:00
p.m., Dallas, Texas time, on the Date of Termination.
(f) If, pursuant to Section 3.2, the B Warrant shall terminate
earlier than provided for in this Section 3.1, then the provisions of Section
3.2 shall prevail.
3.2 Termination of B Warrant. Notwithstanding any provision of
this Warrant to the contrary, the B Warrant shall expire and no longer be
exercisable upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the HMC Group. The Company shall give the Holder reasonable prior
notice of the consummation of a Capital Reorganization. Appropriate per share
adjustments shall be made to take into account, on a comparable per share basis,
any cash consideration attributable to any prior Capital Reorganization.
3.3 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement,
dated as of October 16, 1996, as amended, by and among the Company and the other
parties listed therein (the "Stockholders Agreement"). The Company shall keep a
copy of the Stockholders Agreement, and any amendments thereto, at the Warrant
Agency and shall furnish copies thereof to the Holder upon request.
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<PAGE> 6
3.4 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the
date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a price determined by multiplying the Exercise Price in effect immediately prior
to such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date before giving effect to
such Common Stock Reorganization and the denominator of which shall be the
number of shares of Common Stock outstanding after giving effect to such Common
Stock Reorganization, and (b) the number of shares of Common Stock subject to
purchase upon exercise of the A Warrant and the B Warrant shall each be
adjusted, effective at such time, to a number determined by multiplying the
number of shares of Common Stock subject to purchase immediately before such
Common Stock Reorganization by a fraction, the numerator of which shall be the
number of shares outstanding after giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of shares of
Common Stock outstanding immediately before such Common Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value), in, outstanding shares of Common
Stock, or any sale, assignment, lease, exchange, conveyance or other transfer
(in one transaction or series of related transactions) of the property of the
Company as an entirety or substantially as an entirety or all or substantially
all of the outstanding equity securities of the Company to any person or group
of related persons for the purposes of Section 13(d) of the Exchange Act (any
such event being called a "Capital Reorganization"), then, effective upon the
effective date of such Capital Reorganization, the Holder shall have the right
to purchase, upon exercise of this Warrant, the kind and amount of shares of
stock and other securities and property (including cash) which the Holder would
have owned or have been entitled to receive after such Capital Reorganization if
this Warrant had been exercised immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder an agreement as to the Holder's rights in
accordance with this Section 4.3, providing for subsequent adjustments as nearly
equivalent as may be practicable to the adjustments provided for in this Article
IV. The provisions of this Section 4.3 shall similarly apply to successive
Capital Reorganizations.
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article IV
are not strictly applicable or, if strictly applicable, would not,
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in the good faith judgment of the Board of Directors of the Company (the
"Board"), fairly protect the purchase rights of the Holder in accordance with
the essential intent and principles of such provisions, then the Board shall
make such adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary, in the
good faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein shall
occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder unless
such adjustment increases or decreases such amount or price by one percent or
more, but any such lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall serve to adjust such amount or price by
one percent or more.
(d) No adjustment in the Exercise Price shall be made
hereunder if such adjustment would reduce the exercise price to an amount below
par value of the Common Stock, which par value shall initially be $.01 per share
of Common Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in reasonable
detail and specify the record date or effective date, as the case may be, and,
if determinable, the required adjustment and the computation thereof. If the
required adjustment is not determinable at the time of such notice, the Company
shall give reasonable notice to the Holder of such adjustment and computation
promptly after such adjustment becomes determinable.
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock of the Company is listed or admitted to trading is open for
business or (b) if no
7
<PAGE> 8
class of common stock of the Company is so listed or admitted to trading, a day
on which the New York Stock Exchange is open for business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company, and any capital stock into which such Class A Common
Stock thereafter may be changed.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of February 14, 1997, as amended, by and between the Company
and the Initial Holder, a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means a per share price of $1.44.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board, provided,
however, that the Fair Market Value of any security for which a Closing Price is
available shall be the Market Price of such security.
8
<PAGE> 9
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means R. Steven Hicks.
"IPO Offering Price" means the initial public offering price per share
of Class A Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that in the event that, in the
case of common stock of the Company, the Market Price is determined during a
period following the announcement by the Company of any subdivision, combination
or reclassification of common stock of the Company or the record date for such
subdivision, combination or reclassification, then, and in each such case, the
Market Price shall be appropriately adjusted to reflect the current market price
per share equivalent of common stock of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering of
Class A Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each share
of common stock of the Company received pursuant to a Capital Reorganization
that equals or exceeds the lesser of (i) $6.00 per share or (ii) the greater of
(A) a per share amount equal to $1.40 compounded at an annual rate of 30% for
the period from April 3, 1998 to the end of the calendar month immediately
preceding the consummation of such Capital Reorganization or (B) a per share
amount equal to the IPO Offering Price compounded at an annual rate of 20% for
the period from the date on which a Qualified IPO is consummated to the end of
the calendar month immediately preceding the consummation of such Capital
Reorganization. Upon the completion of a Common Stock Reorganization, each of
the per share amounts set forth in the foregoing sentence shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a dollar amount determined by multiplying such
9
<PAGE> 10
amount in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding on
such record date before giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Stock Reorganization.
"Related Entity" means any direct or indirect subsidiary of the Company
now existing or hereafter formed or acquired, any entity that directly or
indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon exercise
of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of persons
who are not Continuing Directors, and (iii) such purchaser or surviving entity
is not a member of the HMC Group. Appropriate per share adjustments shall be
made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act,, shall mean the Securities Act of 1933, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.2.
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed or telecopied, or mailed by certified or
registered mail, return receipt requested, postage pre-paid, to the addresses
specified on the signature pages hereto or, in any case, at such other address
or addresses as shall have been furnished in writing to the Company (in the case
of a Holder) or to the Holder (in the case of the Company) in accordance with
the provisions of this paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
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<PAGE> 11
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all Holders and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms and
conditions of the Employment Agreement, the terms and conditions of this Warrant
shall be controlling.
[Remainder of page intentionally left blank]
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<PAGE> 12
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
------------------------------------
William S. Banowsky, Jr.
Executive Vice President
ACCEPTED AND AGREED TO:
/s/ R. STEVEN HICKS
- ----------------------------------
Name: R. Steven Hicks
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 13
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder, in exercise of the [ ] A Warrant for _____
shares of Common Stock and/or [ ] B Warrant for _________ shares of Common Stock
in payment of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
---------------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the attached
Warrant or with the name of the
assignee appearing in the
assignment form below.
<PAGE> 14
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- ------------------------------ ---------------------------------
Signature Printed Name of Entity
By:
- ------------------------------ ------------------------------
Printed Name Name:
----------------------------
Title:
---------------------------
<PAGE> 15
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.7
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL IN REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED
UNDER ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR
APPROVED BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF
COMMON STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT,
AS AMENDED, DATED AS OF OCTOBER 16, 1996, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 2,553,182 Shares of Class C Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING FEBRUARY 20, 2007
THIS IS TO CERTIFY THAT, for value received, R. Steven Hicks, or
registered assigns as a holder of this Warrant (the "Holder") is entitled to
purchase from the Company (as hereinafter defined) at any time or from time to
time prior to 5:00 p.m., Dallas, Texas time, February 20, 2007 at the place
where the Warrant Agency (as hereinafter defined) is located, at the Exercise
Price (as hereinafter defined) 2,042,546 shares of Class C common stock, par
value $.01 per share (the "Common Stock"), of the Company (the "A Warrant") and
at the Exercise Price 510,636 shares of the Common Stock (the "B Warrant", and,
collectively with the A Warrant, the "Warrant"), all subject to adjustment and
upon the terms and conditions as hereinafter provided; provided, however, that,
except as provided in Section 3.1, in no event may the B Warrant be exercised by
the Holder until the earlier to occur of June 30, 2001 or immediately preceding
the consummation of a Sale of the Company (as hereinafter defined); and provided
further, however, that the B Warrant shall terminate and not be exercisable
pursuant to the provisions of Section 3.1 or 3.2. The Holder shall designate at
the time of exercise whether the Holder is exercising an A Warrant or a B
Warrant and the number of shares of Common Stock to be purchased respectively
thereunder. This Warrant amends and restates, supersedes and replaces that
certain Warrant dated July 1, 1997, among the Company, the Initial Holder and
Capstar Broadcasting Partners, Inc.
Certain terms used in this Warrant are defined in Article V.
<PAGE> 2
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in part,
the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) whether the Holder is exercising an A
Warrant and/or a B Warrant, (ii) the number of shares of Common Stock to be
purchased under an A Warrant and/or a B Warrant, as applicable, (iii) the
denominations of the share certificate or certificates desired, and (iv) the
name or names in which such certificates are to the registered, (c) if the
Common Stock to be received upon the exercise of this Warrant has not been
registered under the Securities Act, a written certification in substantially
the form of the Certification attached hereto as Annex B, and (d) payment of the
Exercise Price with respect to such shares. Such payment may be made, at the
option of the Holder, by cash, money order, certified or bank cashier's check or
wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such notice.
Such certificate or certificates shall be deemed to have been issued, and such
Holder or any other Person so designated to be named therein shall be deemed for
all purposes to have become a holder of record of such shares, as of the date
the aforementioned notice is received by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant which shall then be returned to the Holder. The Company shall pay
all expenses, taxes (if any) and other charges payable in connection with the
preparation, issuance and delivery of share certificates and a new Warrant,
except that, if share certificates or a new Warrant shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the Holder
at the time of delivering the aforementioned notice of exercise or promptly upon
receipt of a written request of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable and free from all preemptive rights of any stockholder,
and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock issued
upon exercise of this Warrant, unless at the time of exercise such shares are
registered under the Securities Act, shall bear the following legend:
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<PAGE> 3
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of this
security has not been reviewed or approved by any state securities
administrator.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
selected by the holder of such certificate and reasonably acceptable to the
Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will keep
available for issuance upon exercise of this Warrant the total number of shares
of Common Stock deliverable upon exercise of this Warrant from time to time
outstanding. The issuance of such shares has been duly and validly authorized
and, when issued and sold in accordance with this Warrant, such shares will be
duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of Common Stock
registered under the Securities Act, the Company may promptly appoint and
thereafter maintain, at its own expense, an agency in New York, New York, which
agency may be the Company's then existing transfer agent (the "Warrant Agency"),
for certain purposes specified herein, and shall give prompt notice of such
appointment (and appointment of any successor Warrant Agency) to the Holder.
Until an independent Warrant Agency is so appointed, the Company shall perform
the obligations of the Warrant Agency provided herein at its address as
specified on the signature page hereto or such other address as the Company
shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the Person in
whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any Person
other than the Warrant Agency) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the Warrant
Agency books for the registration of transfers of the Warrants, and transfer of
this Warrant and all rights hereunder shall be registered, in whole or in part,
on such books, upon surrender of this Warrant at the Warrant Agency, together
with a written assignment of this Warrant duly executed by the Holder or his
duly authorized agent or attorney, with (unless the Holder is the original
Holder or another institutional investor) signatures guaranteed by a bank or
trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon surrender
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in the instrument
of
3
<PAGE> 4
assignment, and this Warrant shall promptly be canceled. The Warrant Agency
shall not be required to register any transfers if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel (who may be an
employee of such Holder) reasonably satisfactory to the Company that such
transfer is exempt from the registration requirements of the Securities Act and
applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon surrender
hereof to the Warrant Agency, together with a written notice specifying the
names and denominations in which the new Warrants are to be issued, signed by
the Holder. Subject to compliance with Section 2.3 as to any transfer which may
be involved in the division, the Company shall execute and deliver new Warrants
in exchange for the Warrant or Warrants to be divided in accordance with such
notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Termination of Employment.
(a) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's death, the B
Warrant shall become exercisable on the Date of Termination, and the Holder
(or, in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise the B Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) may, until the earlier to occur of
5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first anniversary of the
Date of Termination, exercise the B Warrant with respect to all or any part of
the shares of Common Stock purchasable under the B Warrant; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise the B Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) have
less than 90 days after the Date of Termination to exercise the B Warrant.
(b) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's Disability, the B
Warrant shall become exercisable on the Date of Termination, and the Holder
(or, in the case of the Initial Holder, the Holder's legal representatives)
may, until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31,
2003 or the first anniversary of the Date of Termination, exercise the B
Warrant with respect to all or any part of the shares of Common Stock
purchasable under the B Warrant; provided, however, that in no event will the
Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) have less than 90 days after the Date of Termination to
exercise the B Warrant.
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<PAGE> 5
(c) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment for Cause or the Initial Holder's resignation for other than Good
Reason, the Holder shall forfeit all of the Holder's rights under the B
Warrant, except as to those shares of Common Stock already purchased under the
B Warrant, and the B Warrant shall automatically, and without notice, terminate
and become null and void at 5:00 p.m., Dallas, Texas time, on the Date of
Termination.
(d) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, without a Board Determination, the B Warrant shall become
exercisable on the Date of Termination, and the Holder may, until the earlier
to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th day
after the Date of Termination, exercise the B Warrant with respect to all or
any part of the shares of Common Stock purchasable under the B Warrant;
provided, however, that in no event will the Holder have less than 90 days
after the Date of Termination to exercise the B Warrant.
(e) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, with a Board Determination, if the B Warrant has become
exercisable on or before the Date of Termination, then the Holder may, until
the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the
30th day after the Date of Termination, exercise the B Warrant with respect to
all or any part of the shares of Common Stock purchasable under the B Warrant;
provided, however, that in no event will the Holder have less than 30 days
after the Date of Termination to exercise the B Warrant. If the B Warrant has
not become exercisable on or before the Date of Termination, the B Warrant
shall automatically, and without notice, terminate and become null and void at
5:00 p.m., Dallas, Texas time, on the Date of Termination.
(f) If, pursuant to Section 3.2, the B Warrant shall terminate
earlier than provided for in this Section 3.1, then the provisions of Section
3.2 shall prevail.
3.2 Termination of B Warrant. Notwithstanding any provision of this
Warrant to the contrary, the B Warrant shall expire and no longer be exercisable
upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the HMC Group. The Company shall give the Holder reasonable prior
notice of the consummation of a Capital Reorganization. Appropriate per share
adjustments shall be made to take into account, on a comparable per share basis,
any cash consideration attributable to any prior Capital Reorganization.
3.3 Stockholders Agreement. This Warrant and the Common Stock issuable
upon exercise of this Warrant is subject to a Stockholders Agreement, dated as
of October 16, 1996, as amended, by and among the Company and the other parties
listed therein (the "Stockholders Agreement"). The Company shall keep a copy of
the Stockholders Agreement, and any amendments thereto, at the Warrant Agency
and shall furnish copies thereof to the Holder upon request.
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<PAGE> 6
3.4 Notice of Fair Market Value. Upon each determination of Fair Market
Value hereunder (other than a determination relating solely to setting the value
of fractional shares), the Company shall promptly give notice thereof to the
Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of shares
of Common Stock (or other securities or property) issuable upon exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the date of
issuance of this Warrant subdivide its outstanding shares of Common Stock into a
greater number of shares or consolidate its outstanding shares of Common Stock
into a smaller number of shares (any such event being called a "Common Stock
Reorganization"), then (a) the Exercise Price shall be adjusted, effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Common Stock Reorganization, to a price
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (b) the number of shares of Common Stock subject to purchase
upon exercise of the A Warrant and the B Warrant shall each be adjusted,
effective at such time, to a number determined by multiplying the number of
shares of Common Stock subject to purchase immediately before such Common Stock
Reorganization by a fraction, the numerator of which shall be the number of
shares outstanding after giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such Common Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value), in, outstanding shares of Common
Stock, or any sale, assignment, lease, exchange, conveyance or other transfer
(in one transaction or series of related transactions) of the property of the
Company as an entirety or substantially as an entirety or all or substantially
all of the outstanding equity securities of the Company to any person or group
of related persons for the purposes of Section 13(d) of the Exchange Act (any
such event being called a "Capital Reorganization"), then, effective upon the
effective date of such Capital Reorganization, the Holder shall have the right
to purchase, upon exercise of this Warrant, the kind and amount of shares of
stock and other securities and property (including cash) which the Holder would
have owned or have been entitled to receive after such Capital Reorganization if
this Warrant had been exercised immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder an agreement as to the Holder's rights in
accordance with this Section 4.3, providing for subsequent adjustments as nearly
equivalent as may be practicable to the adjustments provided for in this Article
IV. The provisions of this Section 4.3 shall similarly apply to successive
Capital Reorganizations.
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<PAGE> 7
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article
IV are not strictly applicable or, if strictly applicable, would not, in the
good faith judgment of the Board of Directors of the Company (the "Board"),
fairly protect the purchase rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board shall make
such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this Article IV
shall be made successively whenever an event referred to herein shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder unless
such adjustment increases or decreases such amount or price by one percent or
more, but any such lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall serve to adjust such amount or price by
one percent or more.
(d) No adjustment in the Exercise Price shall be made
hereunder if such adjustment would reduce the exercise price to an amount below
par value of the Common Stock, which par value shall initially be $.01 per share
of Common Stock.
4.6 Notice of Adjustment. The Company shall give the Holder reasonable
notice of the record date or effective date, as the case may be, of any action
which requires or might require an adjustment or readjustment pursuant to this
Article IV. Such notice shall describe such event in reasonable detail and
specify the record date or effective date, as the case may be, and, if
determinable, the required adjustment and the computation thereof. If the
required adjustment is not determinable at the time of such notice, the Company
shall give reasonable notice to the Holder of such adjustment and computation
promptly after such adjustment becomes determinable.
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock of the Company is listed or admitted to trading is open for
business or
7
<PAGE> 8
(b) if no class of common stock of the Company is so listed or admitted to
trading, a day on which the New York Stock Exchange is open for business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company, and any capital stock into which such Class A Common
Stock thereafter may be changed.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of February 14, 1997, as amended, by and between the Company
and the Initial Holder, a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means a per share price of $1.54.
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<PAGE> 9
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board, provided,
however, that the Fair Market Value of any security for which a Closing Price is
available shall be the Market Price of such security.
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means R. Steven Hicks.
"IPO Offering Price" means the initial public offering price per share
of Class A Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that in the event that, in the
case of common stock of the Company, the Market Price is determined during a
period following the announcement by the Company of any subdivision, combination
or reclassification of common stock of the Company or the record date for such
subdivision, combination or reclassification, then, and in each such case, the
Market Price shall be appropriately adjusted to reflect the current market price
per share equivalent of common stock of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering of
Class A Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each share
of common stock of the Company received pursuant to a Capital Reorganization
that equals or exceeds the lesser of (i) $6.00 per share or (ii) the greater of
(A) a per share amount equal to $1.40 compounded at an annual rate of 30% for
the period from April 3, 1998 to the end of the calendar month immediately
preceding the consummation of such Capital Reorganization or (B) a per share
amount equal to the IPO Offering Price compounded at an annual rate of 20% for
the period from the date on which a Qualified IPO is consummated to the end of
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<PAGE> 10
the calendar month immediately preceding the consummation of such Capital
Reorganization. Upon the completion of a Common Stock Reorganization, each of
the per share amounts set forth in the foregoing sentence shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a dollar amount determined by multiplying such amount in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date before giving
effect to such Common Stock Reorganization and the denominator of which shall be
the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization.
"Related Entity" means any direct or indirect subsidiary of the Company
now existing or hereafter formed or acquired, any entity that directly or
indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon exercise
of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of persons
who are not Continuing Directors, and (iii) such purchaser or surviving entity
is not a member of the HMC Group. Appropriate per share adjustments shall be
made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act,, shall mean the Securities Act of 1933, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.2.
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other communications
provided for herein shall be in writing and shall be effective upon delivery in
person, faxed or telecopied, or mailed by certified or registered mail, return
receipt requested, postage pre-paid, to the addresses specified on the signature
pages hereto or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a Holder) or to the
Holder (in the case of the Company) in accordance with the provisions of this
paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the
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<PAGE> 11
Company and Holders who collectively hold Warrants to purchase a majority of the
Common Stock subject to purchase upon exercise of such Warrants at the time
outstanding.
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all Holders and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or inconsistency
between the terms and conditions of this Warrant and the terms and conditions of
the Employment Agreement, the terms and conditions of this Warrant shall be
controlling.
[Remainder of page intentionally left blank]
11
<PAGE> 12
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
-----------------------------
William S. Banowsky, Jr.
Executive Vice President
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
ACCEPTED AND AGREED TO:
Name: /s/ R. STEVEN HICKS
-------------------------------------
Name: R. Steven Hicks
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 13
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder, in exercise of the [ ] A Warrant for _____
shares of Common Stock and/or [ ] B Warrant for _________ shares of Common Stock
in payment of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
-------------------------------------------
Note: The above signature should correspond
exactly with the name on the face of
the attached Warrant or with the name
of the assignee appearing in the
assignment form below.
<PAGE> 14
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities similar
to the Common Stock; is aware of the limitation on the
transfer of the Common Stock imposed by applicable
securities laws and any limitations on transfer imposed
by contracts with the Company or others; and has had
access to, or been furnished with, all information about
the Common Stock and the Company deemed necessary to
conclude that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock and
to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- --------------------------------- ----------------------------
Signature Printed Name of Entity
By:
- --------------------------------- -------------------------
Printed Name Name:
--------------------
Title:
-------------------
<PAGE> 15
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.8
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL IN REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED
UNDER ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR
APPROVED BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF
COMMON STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT,
AS AMENDED, DATED AS OF OCTOBER 16, 1996, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 3,231,203 Shares of Class C Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING JULY 8, 2007
THIS IS TO CERTIFY THAT, for value received, R. Steven Hicks, or
registered assigns as a holder of this Warrant (the "Holder") is entitled to
purchase from the Company (as hereinafter defined) at any time or from time to
time prior to 5:00 p.m., Dallas, Texas time, July 8, 2007 at the place where the
Warrant Agency (as hereinafter defined) is located, at the Exercise Price (as
hereinafter defined) 987,970 shares of Class C common stock, par value $.01 per
share (the "Common Stock"), of the Company (the "A Warrant") and at the Exercise
Price 2,243,233 shares of the Common Stock (the "B Warrant", and, collectively
with the A Warrant, the "Warrant"), all subject to adjustment and upon the terms
and conditions as hereinafter provided; provided, however, that, except as
provided in Section 3.1, in no event may the B Warrant be exercised by the
Holder until the earlier to occur of June 30, 2001 or immediately preceding the
consummation of a Sale of the Company (as hereinafter defined); and provided
further, however, that the B Warrant shall terminate and not be exercisable
pursuant to the provisions of Section 3.1 or 3.2. The Holder shall designate at
the time of exercise whether the Holder is exercising an A Warrant or a B
Warrant and the number of shares of Common Stock to be purchased respectively
thereunder. This Warrant amends and restates, supersedes and replaces that
certain Warrant dated July 1, 1997, among the Company, the Initial Holder and
Capstar Broadcasting Partners, Inc.
Certain terms used in this Warrant are defined in Article V.
<PAGE> 2
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) whether the Holder is exercising an A
Warrant and/or a B Warrant, (ii) the number of shares of Common Stock to be
purchased under an A Warrant and/or a B Warrant, as applicable, (iii) the
denominations of the share certificate or certificates desired, and (iv) the
name or names in which such certificates are to the registered, (c) if the
Common Stock to be received upon the exercise of this Warrant has not been
registered under the Securities Act, a written certification in substantially
the form of the Certification attached hereto as Annex B, and (d) payment of
the Exercise Price with respect to such shares. Such payment may be made, at
the option of the Holder, by cash, money order, certified or bank cashier's
check or wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such notice.
Such certificate or certificates shall be deemed to have been issued, and such
Holder or any other Person so designated to be named therein shall be deemed for
all purposes to have become a holder of record of such shares, as of the date
the aforementioned notice is received by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant which shall then be returned to the Holder. The Company shall pay
all expenses, taxes (if any) and other charges payable in connection with the
preparation, issuance and delivery of share certificates and a new Warrant,
except that, if share certificates or a new Warrant shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the Holder
at the time of delivering the aforementioned notice of exercise or promptly upon
receipt of a written request of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such
shares are registered under the Securities Act, shall bear the following
legend:
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<PAGE> 3
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of this
security has not been reviewed or approved by any state securities
administrator."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
selected by the holder of such certificate and reasonably acceptable to the
Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of Common
Stock registered under the Securities Act, the Company may promptly appoint and
thereafter maintain, at its own expense, an agency in New York, New York, which
agency may be the Company's then existing transfer agent (the "Warrant
Agency"), for certain purposes specified herein, and shall give prompt notice
of such appointment (and appointment of any successor Warrant Agency) to the
Holder. Until an independent Warrant Agency is so appointed, the Company shall
perform the obligations of the Warrant Agency provided herein at its address as
specified on the signature page hereto or such other address as the Company
shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any
Person other than the Warrant Agency) for all purposes and shall not be
affected by any notice to the contrary, until presentation of this Warrant for
registration of transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant
Agency, together with a written assignment of this Warrant duly executed by the
Holder or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon surrender
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in the instrument
of
3
<PAGE> 4
assignment, and this Warrant shall promptly be canceled. The Warrant Agency
shall not be required to register any transfers if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel (who may be an
employee of such Holder) reasonably satisfactory to the Company that such
transfer is exempt from the registration requirements of the Securities Act and
applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon
surrender hereof to the Warrant Agency, together with a written notice
specifying the names and denominations in which the new Warrants are to be
issued, signed by the Holder. Subject to compliance with Section 2.3 as to any
transfer which may be involved in the division, the Company shall execute and
deliver new Warrants in exchange for the Warrant or Warrants to be divided in
accordance with such notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of shares of
Common Stock as provided for in such lost, stolen, destroyed or mutilated
Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Termination of Employment.
(a) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's death, the B
Warrant shall become exercisable on the Date of Termination, and the Holder (or,
in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise the B Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) may, until the earlier to occur of
5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first anniversary of the
Date of Termination, exercise the B Warrant with respect to all or any part of
the shares of Common Stock purchasable under the B Warrant; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise the B Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) have
less than 90 days after the Date of Termination to exercise the B Warrant.
(b) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's Disability,
the B Warrant shall become exercisable on the Date of Termination, and the
Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) may, until the earlier to occur of 5:00 p.m., Dallas, Texas
time, on May 31, 2003 or the first anniversary of the Date of Termination,
exercise the B Warrant with respect to all or any part of the shares of Common
Stock purchasable under the B Warrant; provided, however, that in no event will
the Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) have less than 90 days after the Date of Termination to
exercise the B Warrant.
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<PAGE> 5
(c) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment for Cause or the Initial Holder's resignation for other than Good
Reason, the Holder shall forfeit all of the Holder's rights under the B Warrant,
except as to those shares of Common Stock already purchased under the B Warrant,
and the B Warrant shall automatically, and without notice, terminate and become
null and void at 5:00 p.m., Dallas, Texas time, on the Date of Termination.
(d) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, without a Board Determination, the B Warrant shall become
exercisable on the Date of Termination, and the Holder may, until the earlier to
occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th day after
the Date of Termination, exercise the B Warrant with respect to all or any part
of the shares of Common Stock purchasable under the B Warrant; provided,
however, that in no event will the Holder have less than 90 days after the Date
of Termination to exercise the B Warrant.
(e) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, with a Board Determination, if the B Warrant has become
exercisable on or before the Date of Termination, then the Holder may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 30th
day after the Date of Termination, exercise the B Warrant with respect to all or
any part of the shares of Common Stock purchasable under the B Warrant;
provided, however, that in no event will the Holder have less than 30 days after
the Date of Termination to exercise the B Warrant. If the B Warrant has not
become exercisable on or before the Date of Termination, the B Warrant shall
automatically, and without notice, terminate and become null and void at 5:00
p.m., Dallas, Texas time, on the Date of Termination.
(f) If, pursuant to Section 3.2, the B Warrant shall terminate
earlier than provided for in this Section 3.1, then the provisions of Section
3.2 shall prevail.
3.2 Termination of B Warrant. Notwithstanding any provision of
this Warrant to the contrary, the B Warrant shall expire and no longer be
exercisable upon either (a) the consummation of a Sale of the Company or (b)
the consummation of a Capital Reorganization in which (i) the stockholders of
the Company receive only cash consideration for each share of common stock of
the Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the HMC Group. The Company shall give the Holder reasonable prior
notice of the consummation of a Capital Reorganization. Appropriate per share
adjustments shall be made to take into account, on a comparable per share
basis, any cash consideration attributable to any prior Capital Reorganization.
3.3 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement,
dated as of October 16, 1996, as amended, by and among the Company and the
other parties listed therein (the "Stockholders Agreement"). The Company shall
keep a copy of the Stockholders Agreement, and any amendments thereto, at the
Warrant Agency and shall furnish copies thereof to the Holder upon request.
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<PAGE> 6
3.4 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the
date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization,
to a price determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date before giving
effect to such Common Stock Reorganization and the denominator of which shall
be the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (b) the number of shares of Common Stock
subject to purchase upon exercise of the A Warrant and the B Warrant shall each
be adjusted, effective at such time, to a number determined by multiplying the
number of shares of Common Stock subject to purchase immediately before such
Common Stock Reorganization by a fraction, the numerator of which shall be the
number of shares outstanding after giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of shares of
Common Stock outstanding immediately before such Common Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value), in, outstanding shares of Common
Stock, or any sale, assignment, lease, exchange, conveyance or other transfer
(in one transaction or series of related transactions) of the property of the
Company as an entirety or substantially as an entirety or all or substantially
all of the outstanding equity securities of the Company to any person or group
of related persons for the purposes of Section 13(d) of the Exchange Act (any
such event being called a "Capital Reorganization"), then, effective upon the
effective date of such Capital Reorganization, the Holder shall have the right
to purchase, upon exercise of this Warrant, the kind and amount of shares of
stock and other securities and property (including cash) which the Holder would
have owned or have been entitled to receive after such Capital Reorganization if
this Warrant had been exercised immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder an agreement as to the Holder's rights in
accordance with this Section 4.3, providing for subsequent adjustments as nearly
equivalent as may be practicable to the adjustments provided for in this Article
IV. The provisions of this Section 4.3 shall similarly apply to successive
Capital Reorganizations.
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article IV
are not strictly applicable or, if strictly applicable, would not,
6
<PAGE> 7
in the good faith judgment of the Board of Directors of the Company (the
"Board"), fairly protect the purchase rights of the Holder in accordance with
the essential intent and principles of such provisions, then the Board shall
make such adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary, in the
good faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein
shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder unless
such adjustment increases or decreases such amount or price by one percent or
more, but any such lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall serve to adjust such amount or price by
one percent or more.
(d) No adjustment in the Exercise Price shall be made
hereunder if such adjustment would reduce the exercise price to an amount below
par value of the Common Stock, which par value shall initially be $.01 per share
of Common Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in
reasonable detail and specify the record date or effective date, as the case
may be, and, if determinable, the required adjustment and the computation
thereof. If the required adjustment is not determinable at the time of such
notice, the Company shall give reasonable notice to the Holder of such
adjustment and computation promptly after such adjustment becomes determinable.
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock of the Company is listed or admitted to trading is open for
business or (b) if no
7
<PAGE> 8
class of common stock of the Company is so listed or admitted to trading, a day
on which the New York Stock Exchange is open for business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company, and any capital stock into which such Class A Common
Stock thereafter may be changed.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of February 14, 1997, as amended, by and between the Company
and the Initial Holder, a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means a per share price of $1.81.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board, provided,
however, that the Fair Market Value of any security for which a Closing Price is
available shall be the Market Price of such security.
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<PAGE> 9
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means R. Steven Hicks.
"IPO Offering Price" means the initial public offering price per share
of Class A Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that in the event that, in the
case of common stock of the Company, the Market Price is determined during a
period following the announcement by the Company of any subdivision, combination
or reclassification of common stock of the Company or the record date for such
subdivision, combination or reclassification, then, and in each such case, the
Market Price shall be appropriately adjusted to reflect the current market price
per share equivalent of common stock of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering of
Class A Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each share
of common stock of the Company received pursuant to a Capital Reorganization
that equals or exceeds the lesser of (i) $6.00 per share or (ii) the greater of
(A) a per share amount equal to $1.40 compounded at an annual rate of 30% for
the period from April 3, 1998 to the end of the calendar month immediately
preceding the consummation of such Capital Reorganization or (B) a per share
amount equal to the IPO Offering Price compounded at an annual rate of 20% for
the period from the date on which a Qualified IPO is consummated to the end of
the calendar month immediately preceding the consummation of such Capital
Reorganization. Upon the completion of a Common Stock Reorganization, each of
the per share amounts set forth in the foregoing sentence shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a dollar amount determined by multiplying such
9
<PAGE> 10
amount in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding on
such record date before giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Stock Reorganization.
"Related Entity" means any direct or indirect subsidiary of the Company
now existing or hereafter formed or acquired, any entity that directly or
indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon exercise
of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of persons
who are not Continuing Directors, and (iii) such purchaser or surviving entity
is not a member of the HMC Group. Appropriate per share adjustments shall be
made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act,, shall mean the Securities Act of 1933, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.2.
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed or telecopied, or mailed by certified or
registered mail, return receipt requested, postage pre-paid, to the addresses
specified on the signature pages hereto or, in any case, at such other address
or addresses as shall have been furnished in writing to the Company (in the
case of a Holder) or to the Holder (in the case of the Company) in accordance
with the provisions of this paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
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<PAGE> 11
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all Holders and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms
and conditions of the Employment Agreement, the terms and conditions of this
Warrant shall be controlling.
[Remainder of page intentionally left blank]
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<PAGE> 12
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
---------------------------------
William S. Banowsky, Jr.
Executive Vice President
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
ACCEPTED AND AGREED TO:
/s/ R. STEVEN HICKS
- -------------------------------
Name: R. Steven Hicks
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 13
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder, in exercise of the o A Warrant for _____
shares of Common Stock and/or o B Warrant for _________ shares of Common Stock
in payment of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
------------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee appearing
in the assignment form below.
<PAGE> 14
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- ----------------------- ------------------------------
Signature Printed Name of Entity
By:
- ----------------------- ---------------------------
Printed Name Name:
-------------------------
Title:
------------------------
<PAGE> 15
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.9
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL IN REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED
UNDER ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR
APPROVED BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF
COMMON STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT,
AS AMENDED, DATED AS OF OCTOBER 16, 1996, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 1,879,699 Shares of Class C Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING APRIL 1, 2008.
THIS IS TO CERTIFY THAT, for value received, R. Steven Hicks, or
registered assigns as a holder of this Warrant (the "Holder") is entitled to
purchase from the Company (as hereinafter defined) at any time or from time to
time prior to 5:00 p.m., Dallas, Texas time, April 1, 2008 at the place where
the Warrant Agency (as hereinafter defined) is located, at the Exercise Price
(as hereinafter defined) 1,879,699 shares of Class C Common Stock, par value
$.01 per share (the "Common Stock"), of the Company (the "Warrant"), all subject
to adjustment and upon the terms and conditions as hereinafter provided;
provided, however, that, except as provided in Section 3.1, in no event may this
Warrant be exercised by the Holder until the earlier to occur of June 30, 2001
or immediately preceding the consummation of a Sale of the Company (as
hereinafter defined); and provided further, however, that this Warrant shall
terminate and not be exercisable pursuant to the provisions of Section 3.1 or
3.2.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in part,
the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) the number of shares of Common Stock to
be purchased under this Warrant, (ii) the denominations of the share certificate
or certificates desired, and (iii) the name or names in which such certificates
are to the registered, (c) if the Common Stock to be received upon the exercise
of this Warrant has not been registered under the Securities Act, a written
certification in substantially the form of the
<PAGE> 2
Certification attached hereto as Annex B, and (d) payment of the Exercise Price
with respect to such shares. Such payment may be made, at the option of the
Holder, by cash, money order, certified or bank cashier's check or wire
transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such notice.
Such certificate or certificates shall be deemed to have been issued, and such
Holder or any other Person so designated to be named therein shall be deemed for
all purposes to have become a holder of record of such shares, as of the date
the aforementioned notice is received by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant which shall then be returned to the Holder. The Company shall pay
all expenses, taxes (if any) and other charges payable in connection with the
preparation, issuance and delivery of share certificates and a new Warrant,
except that, if share certificates or a new Warrant shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the Holder
at the time of delivering the aforementioned notice of exercise or promptly upon
receipt of a written request of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable and free from all preemptive rights of any stockholder,
and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock issued
upon exercise of this Warrant, unless at the time of exercise such shares are
registered under the Securities Act, shall bear the following legend:
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of this
security has not been reviewed or approved by any state securities
administrator.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement
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<PAGE> 3
under the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate and reasonably acceptable to
the Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of Common
Stock registered under the Securities Act, the Company may promptly appoint and
thereafter maintain, at its own expense, an agency in New York, New York, which
agency may be the Company's then existing transfer agent (the "Warrant Agency"),
for certain purposes specified herein, and shall give prompt notice of such
appointment (and appointment of any successor Warrant Agency) to the Holder.
Until an independent Warrant Agency is so appointed, the Company shall perform
the obligations of the Warrant Agency provided herein at its address as
specified on the signature page hereto or such other address as the Company
shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the Person
in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any Person
other than the Warrant Agency) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant Agency,
together with a written assignment of this Warrant duly executed by the Holder
or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon surrender
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in the instrument
of assignment, and this Warrant shall promptly be canceled. The Warrant Agency
shall not be required to register any transfers if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel (who may be an
employee of such Holder) reasonably satisfactory to the Company that such
transfer is exempt from the registration requirements of the Securities Act and
applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon surrender
hereof to the Warrant Agency, together with a written notice specifying the
names and denominations in which the new Warrants are to be issued, signed by
the Holder. Subject to compliance with Section 2.3 as to any transfer which may
be involved in the division, the Company shall execute and deliver new Warrants
in exchange for the Warrant or Warrants to be divided in accordance with such
notice.
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<PAGE> 4
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Termination of Employment.
(a) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's death, this
Warrant shall become exercisable on the Date of Termination, and the Holder (or,
in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise this Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) may, until the earlier to occur of
5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first anniversary of the
Date of Termination, exercise this Warrant with respect to all or any part of
the shares of Common Stock purchasable under this Warrant; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise this Warrant by
bequest or inheritance or otherwise by reason of the Holder's death) have less
than 90 days after the Date of Termination to exercise this Warrant.
(b) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's Disability, this
Warrant shall become exercisable on the Date of Termination, and the Holder (or,
in the case of the Initial Holder, the Holder's legal representatives) may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the first anniversary of the Date of Termination, exercise this Warrant with
respect to all or any part of the shares of Common Stock purchasable under this
Warrant; provided, however, that in no event will the Holder (or, in the case of
the Initial Holder, the Holder's legal representatives) have less than 90 days
after the Date of Termination to exercise this Warrant.
(c) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment for Cause or the Initial Holder's resignation for other than Good
Reason, the Holder shall forfeit all of the Holder's rights under this Warrant,
except as to those shares of Common Stock already purchased under this Warrant,
and this Warrant shall automatically, and without notice, terminate and become
null and void at 5:00 p.m., Dallas, Texas time, on the Date of Termination.
(d) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, without a Board Determination, this Warrant shall become
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<PAGE> 5
exercisable on the Date of Termination, and the Holder may, until the earlier to
occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th day after
the Date of Termination, exercise this Warrant with respect to all or any part
of the shares of Common Stock purchasable under this Warrant; provided, however,
that in no event will the Holder have less than 90 days after the Date of
Termination to exercise this Warrant.
(e) Upon the termination of the Initial Holder's employment with
the Company or any Related Entity due to the Initial Holder's termination of
employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, with a Board Determination, if this Warrant has become
exercisable on or before the Date of Termination, then the Holder may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 30th
day after the Date of Termination, exercise this Warrant with respect to all or
any part of the shares of Common Stock purchasable under this Warrant; provided,
however, that in no event will the Holder have less than 30 days after the Date
of Termination to exercise this Warrant. If this Warrant has not become
exercisable on or before the Date of Termination, this Warrant shall
automatically, and without notice, terminate and become null and void at 5:00
p.m., Dallas, Texas time, on the Date of Termination.
(f) If, pursuant to Section 3.2, this Warrant shall terminate
earlier than provided for in this Section 3.1, then the provisions of Section
3.2 shall prevail.
3.2 Termination of Warrant. Notwithstanding any provision of this
Warrant to the contrary, this Warrant shall expire and no longer be exercisable
upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the HMC Group. The Company shall give the Holder reasonable prior
notice of the consummation of a Capital Reorganization. Appropriate per share
adjustments shall be made to take into account, on a comparable per share basis,
any cash consideration attributable to any prior Capital Reorganization.
3.3 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement,
dated as of October 16, 1996, as amended, by and among the Company and the other
parties listed therein (the "Stockholders Agreement"). The Company shall keep a
copy of the Stockholders Agreement, and any amendments thereto, at the Warrant
Agency and shall furnish copies thereof to the Holder upon request.
3.4 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
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<PAGE> 6
4.2 Common Stock Reorganization. If the Company shall after the date
of issuance of this Warrant subdivide its outstanding shares of Common Stock
into a greater number of shares or consolidate its outstanding shares of Common
Stock into a smaller number of shares (any such event being called a "Common
Stock Reorganization"), then (a) the Exercise Price shall be adjusted, effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Common Stock Reorganization, to a price
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (b) the number of shares of Common Stock subject to purchase
upon exercise of this Warrant shall each be adjusted, effective at such time, to
a number determined by multiplying the number of shares of Common Stock subject
to purchase immediately before such Common Stock Reorganization by a fraction,
the numerator of which shall be the number of shares outstanding after giving
effect to such Common Stock Reorganization and the denominator of which shall be
the number of shares of Common Stock outstanding immediately before such Common
Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value), in, outstanding shares of Common
Stock, or any sale, assignment, lease, exchange, conveyance or other transfer
(in one transaction or series of related transactions) of the property of the
Company as an entirety or substantially as an entirety or all or substantially
all of the outstanding equity securities of the Company to any person or group
of related persons for the purposes of Section 13(d) of the Exchange Act (any
such event being called a "Capital Reorganization"), then, effective upon the
effective date of such Capital Reorganization, the Holder shall have the right
to purchase, upon exercise of this Warrant, the kind and amount of shares of
stock and other securities and property (including cash) which the Holder would
have owned or have been entitled to receive after such Capital Reorganization if
this Warrant had been exercised immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder an agreement as to the Holder's rights in
accordance with this Section 4.3, providing for subsequent adjustments as nearly
equivalent as may be practicable to the adjustments provided for in this Article
IV. The provisions of this Section 4.3 shall similarly apply to successive
Capital Reorganizations.
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article IV
are not strictly applicable or, if strictly applicable, would not, in the good
faith judgment of the Board of Directors of the Company (the "Board"), fairly
protect the purchase rights of the Holder in accordance with the essential
intent and principles of such provisions, then the Board shall make such
adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this Article
IV shall be made successively whenever an event referred to herein shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon
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<PAGE> 7
such action prior to effecting such action, then no adjustment shall be made
pursuant to this Article IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder unless
such adjustment increases or decreases such amount or price by one percent or
more, but any such lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall serve to adjust such amount or price by
one percent or more.
(d) No adjustment in the Exercise Price shall be made hereunder
if such adjustment would reduce the exercise price to an amount below par value
of the Common Stock, which par value shall initially be $.01 per share of Common
Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in reasonable
detail and specify the record date or effective date, as the case may be, and,
if determinable, the required adjustment and the computation thereof. If the
required adjustment is not determinable at the time of such notice, the Company
shall give reasonable notice to the Holder of such adjustment and computation
promptly after such adjustment becomes determinable.
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock is listed or admitted to trading is open for business or (b) if no
class of common stock of the Company is so listed or admitted to trading, a day
on which the New York Stock Exchange is open for business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set forth in Section 3(b) of the
Employment Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company, and any capital stock into which such Class A Common
Stock thereafter may be changed.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported
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<PAGE> 8
sale occurs on such day, the average of the closing bid and asked prices regular
way on such day, in each case as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such class of security is listed or
admitted to trading, or (b) if such security is not listed or admitted to
trading on any national securities exchange, the last quoted sales price, or, if
not so quoted, the average of the high bid and low asked prices in the
over-the-counter market on such day as reported by NASDAQ or any comparable
system then in use or, if not so reported, as reported by any New York Stock
Exchange member firm reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of February 14, 1997, as amended, by and between the Company
and the Initial Holder, a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means a per share price of $1.71.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board, provided,
however, that the Fair Market Value of any security for which a Closing Price is
available shall be the Market Price of such security.
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
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<PAGE> 9
"Initial Holder" means R. Steven Hicks.
"IPO Offering Price" means the initial public offering price per share
of Class A Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that in the event that, in the
case of common stock of the Company, the Market Price is determined during a
period following the announcement by the Company of any subdivision, combination
or reclassification of common stock of the Company or the record date for such
subdivision, combination or reclassification, then, and in each such case, the
Market Price shall be appropriately adjusted to reflect the current market price
per share equivalent of common stock of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering of
Class A Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each share
of common stock of the Company received pursuant to a Capital Reorganization
that equals or exceeds the lesser of (i) $6.00 per share or (ii) the greater of
(A) a per share amount equal to $1.40 compounded at an annual rate of 30% for
the period from April 3, 1998 to the end of the calendar month immediately
preceding the consummation of such Capital Reorganization or (B) a per share
amount equal to the IPO Offering Price compounded at an annual rate of 20% for
the period from the date on which a Qualified IPO is consummated to the end of
the calendar month immediately preceding the consummation of such Capital
Reorganization. Upon the completion of a Common Stock Reorganization, each of
the per share amounts set forth in the foregoing sentence shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a dollar amount determined by multiplying such amount in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date before giving
effect to such Common Stock Reorganization and the denominator of which shall be
the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization.
"Related Entity" means any direct or indirect subsidiary of the Company
now existing or hereafter formed or acquired, any entity that directly or
indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon exercise
of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that
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<PAGE> 10
(when added to any cash consideration attributable to any prior Capital
Reorganization) equals or exceeds the Qualifying Cash Consideration, (ii) a
majority of directors of the purchaser or surviving entity in such Capital
Reorganization consists of persons who are not Continuing Directors, and (iii)
such purchaser or surviving entity is not a member of the HMC Group. Appropriate
per share adjustments shall be made to take into account, on a comparable per
share basis, any cash consideration attributable to any prior Capital
Reorganization.
"Securities Act,, shall mean the Securities Act of 1933, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.2.
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other communications
provided for herein shall be in writing and shall be effective upon delivery in
person, faxed or telecopied, or mailed by certified or registered mail, return
receipt requested, postage pre-paid, to the addresses specified on the signature
pages hereto or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a Holder) or to the
Holder (in the case of the Company) in accordance with the provisions of this
paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all Holders and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
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6.4 Severability. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms and
conditions of the Employment Agreement, the terms and conditions of this Warrant
shall be controlling.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
------------------------------
William S. Banowsky, Jr.
Executive Vice President
ACCEPTED AND AGREED TO:
/s/ R. STEVEN HICKS
- ----------------------------
Name: R. Steven Hicks
Address: 600 Congress Avenue
Suite 1400
Austin, TX 78701
<PAGE> 13
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder _________ shares of Common Stock in payment
of an Exercise Price in an amount equal to $
--------------.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
--------------------------------
Note: The above signature should
correspond exactly with
the name on the face of
the attached Warrant or
with the name of the
assignee appearing in the
assignment form below.
<PAGE> 14
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
the Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- ---------------------------- ----------------------------
Signature Printed Name of Entity
By:
- ---------------------------- -------------------------
Printed Name Name:
----------------------
Title:
----------------------
<PAGE> 15
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.10
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE
TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL IN
REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE COMPANY THAT
REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER ANY
SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY
ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF COMMON
STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED
AS OF OCTOBER 16, 1996, AS AMENDED, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 5,000,000 Shares of Class C Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING MAY 31, 2003
THIS IS TO CERTIFY THAT, for value received, R. Steven Hicks, or
registered assigns as a holder (the "Holder") of this Warrant (the "Warrant") is
entitled to purchase from the Company (as hereinafter defined) at the place
where the Warrant Agency (as hereinafter defined) is located, at the Exercise
Price (as hereinafter defined), 5,000,000 shares (the "Warrant Shares") of Class
C Common Stock, par value $.01 per share (the "Common Stock"), of the Company,
subject to adjustment and upon the terms and conditions as hereinafter provided.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in part,
the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) the number of shares of Common Stock to
be purchased under the Warrant, (ii) the denominations of the share certificate
or certificates desired, and (iii) the name or names in which such certificates
are to the registered, (c) if the Common Stock to be received upon the exercise
of this Warrant has not been registered under the Securities Act, a written
certification in substantially the form of the Certification attached hereto as
Annex B, and
<PAGE> 2
(d) payment of the Exercise Price with respect to such shares. Such payment may
be made, at the option of the Holder, by cash, money order, certified or bank
cashier's check or wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such notice.
Such certificate or certificates shall be deemed to have been issued, and such
Holder or any other Person so designated to be named therein shall be deemed for
all purposes to have become a holder of record of such shares, as of the date
the aforementioned notice is received by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant which shall then be returned to the Holder. The Company shall pay
all expenses, taxes (if any) and other charges payable in connection with the
preparation, issuance and delivery of share certificates and a new Warrant,
except that, if share certificates or a new Warrant shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the Holder
at the time of delivering the aforementioned notice of exercise or promptly upon
receipt of a written request of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable and free from all preemptive rights of any stockholder,
and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock issued
upon exercise of this Warrant, unless at the time of exercise such shares are
registered under the Securities Act, shall bear the following legend:
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of this
security has not been reviewed or approved by any state securities
administrator.
2
<PAGE> 3
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
selected by the holder of such certificate and reasonably acceptable to the
Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of Common
Stock registered under the Securities Act, the Company may promptly appoint and
thereafter maintain, at its own expense, an agency in New York, New York, which
agency may be the Company's then existing transfer agent (the "Warrant Agency"),
for certain purposes specified herein, and shall give prompt notice of such
appointment (and appointment of any successor Warrant Agency) to the Holder.
Until an independent Warrant Agency is so appointed, the Company shall perform
the obligations of the Warrant Agency provided herein at its address as
specified on the signature page hereto or such other address as the Company
shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the Person
in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any Person
other than the Warrant Agency) for all purposes and shall not be affected by any
notice to the contrary, until presentation of this Warrant for registration of
transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant Agency,
together with a written assignment of this Warrant duly executed by the Holder
or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon surrender
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in the instrument
of assignment, and this Warrant shall promptly be canceled. The Warrant Agency
shall not be required to register any transfers if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel (who may be an
employee of such Holder) reasonably satisfactory to the Company that such
transfer is exempt from the registration requirements of the Securities Act and
applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon surrender
hereof to the Warrant Agency, together with a written notice specifying the
names and denominations in which
3
<PAGE> 4
the new Warrants are to be issued, signed by the Holder. Subject to compliance
with Section 2.3 as to any transfer which may be involved in the division, the
Company shall execute and deliver new Warrants in exchange for the Warrant or
Warrants to be divided in accordance with such notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Exercise.
(a) Except as otherwise provided in Sections 3.2 and 3.3, the
Warrant Shares shall become "Vested Warrant Shares" with respect to 20% of the
Warrant Shares on the first anniversary of the date of this Warrant, and 1/60th
of the Warrant Shares shall vest and become Vested Warrant Shares on the last
day of each calendar month thereafter, so that all of the Warrant Shares shall
be vested and become Vested Warrant Shares 60 months after the date of this
Warrant.
(b) Except as otherwise provided in Sections 3.2 and 3.3, this
Warrant shall become exercisable to acquire Vested Warrant Shares at any time or
from time to time after the date on which the average Fair Market Value of the
Class A Common Stock, calculated on a daily basis (when added to any cash
consideration attributable to any prior Capital Reorganization), equals or
exceeds $6.00 per share (the "Exercisability Value") for a period of 180
consecutive days (excluding non-Business Days for purposes of calculating the
average Fair Market Value during such 180-day period) during the period from
(and including) April 1, 1998 through (and including) May 31, 2003. Upon the
completion of a Common Stock Reorganization, the Exercisability Value shall be
adjusted, effective immediately after the record date at which the holders of
shares of Class A Common Stock are determined for purposes of such Common Stock
Reorganization, to a dollar amount determined by multiplying the Exercisability
Value in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Class A Common Stock
outstanding on such record date before giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of shares of
Class A Common Stock outstanding after giving effect to such Common Stock
Reorganization.
(c) Notwithstanding clauses (a) and (b), the Warrant Shares
shall become Vested Warrant Shares, and this Warrant shall become exercisable,
immediately preceding the consummation of a Sale of the Company.
4
<PAGE> 5
(d) Except as otherwise provided in Section 3.2, the
unexercised portion of this Warrant, if any, will automatically, and without
notice, terminate and become null and void at 5:00 p.m., Dallas, Texas time, on
the later to occur of May 31, 2003 or the 90th day after this Warrant becomes
exercisable.
3.2 Termination of Employment. Notwithstanding Section 3.1:
(a) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's death, the
Warrant Shares shall become Vested Warrant Shares on the Date of Termination. If
this Warrant has become exercisable on or before the Date of Termination, then
the Holder (or, in the case of the Initial Holder, the Holder's estate or any
person who acquired the right to exercise this Warrant by bequest or inheritance
or otherwise by reason of the Holder's death) may, until the earlier to occur of
5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first anniversary of the
Date of Termination, exercise this Warrant with respect to all or any part of
the Vested Warrant Shares; provided, however, that in no event will the Holder
(or, in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise this Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) have less than 90 days after the Date
of Termination to exercise this Warrant. If this Warrant has not become
exercisable on or before the Date of Termination, then (i) this Warrant shall
remain in full force and effect until May 31, 2003 and (ii) if this Warrant
becomes exercisable on or before May 31, 2003, then the Holder (or, in the case
of the Initial Holder, the Holder's estate or any person who acquired the right
to exercise this Warrant by bequest or inheritance or otherwise by reason of the
Holder's death) may, until the earlier to occur of 5:00 p.m., Dallas, Texas
time, on May 31, 2003 or the first anniversary of the date on which this Warrant
becomes exercisable, exercise this Warrant with respect to all or any part of
the Vested Warrant Shares; provided, however, that in no event will the Holder
(or, in the case of the Initial Holder, the Holder's estate or any person who
acquired the right to exercise this Warrant by bequest or inheritance or
otherwise by reason of the Holder's death) have less than 90 days to exercise
this Warrant.
(b) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's Disability,
the Warrant Shares shall become Vested Warrant Shares on the Date of
Termination. If this Warrant has become exercisable on or before the Date of
Termination, then the Holder (or, in the case of the Initial Holder, the
Holder's legal representatives) may, until the earlier to occur of 5:00 p.m.,
Dallas, Texas time, on May 31, 2003 or the first anniversary of the Date of
Termination, exercise this Warrant with respect to all or any part of the Vested
Warrant Shares; provided, however, that in no event will the Holder (or, in the
case of the Initial Holder, the Holder's legal representatives) have less than
90 days after the Date of Termination to exercise this Warrant. If this Warrant
has not become exercisable on or before the Date of Termination, then (i) this
Warrant shall remain in full force and effect until May 31, 2003 and (ii) if
this Warrant becomes exercisable on or before May 31, 2003, then the Holder (or,
in the case of the Initial Holder, the Holder's legal representatives) may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the first anniversary of the date on which this Warrant becomes exercisable,
exercise this Warrant with respect to all or any part of the Vested Warrant
Shares; provided, however, that in no event will the Holder (or, in the case of
the Initial Holder, the Holder's legal representatives) have less than 90 days
to exercise this Warrant.
(c) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment for Cause or the Initial
5
<PAGE> 6
Holder's resignation for other than Good Reason, the Holder shall forfeit all of
the Holder's rights under this Warrant, except as to those Warrant Shares
already purchased, and this Warrant shall automatically, and without notice,
terminate and become null and void at 5:00 p.m., Dallas, Texas time, on the Date
of Termination.
(d) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, without a Board Determination, the Warrant Shares shall
become Vested Warrant Shares on the Date of Termination. If this Warrant has
become exercisable on or before the Date of Termination, then the Holder may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the 90th day after the Date of Termination, exercise this Warrant with respect
to all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 90 days after the Date of Termination to
exercise this Warrant. If this Warrant has not become exercisable on or before
the Date of Termination, then (i) this Warrant shall remain in full force and
effect until May 31, 2003 and (ii) if this Warrant becomes exercisable on or
before May 31, 2003, then the Holder may, until the earlier to occur of 5:00
p.m., Dallas, Texas time, on May 31, 2003 or the 90th day after the date on
which this Warrant becomes exercisable, exercise this Warrant with respect to
all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 90 days to exercise this Warrant.
(e) Upon the termination of the Initial Holder's employment
with the Company or any Related Entity due to the Initial Holder's termination
of employment without Cause or the Initial Holder's resignation for Good Reason
and, in either case, with a Board Determination, no additional Warrant Shares
shall vest after the Date of Termination. If this Warrant has become exercisable
on or before the Date of Termination, then the Holder may, until the earlier to
occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 30th day after
the Date of Termination, exercise this Warrant with respect to all or any part
of the Vested Warrant Shares; provided, however, that in no event will the
Holder have less than 30 days after the Date of Termination to exercise this
Warrant. If this Warrant has not become exercisable on or before the Date of
Termination, then (i) this Warrant shall remain in full force and effect until
May 31, 2003 and (ii) if this Warrant becomes exercisable on or before May 31,
2003, then the Holder may, until the earlier to occur of 5:00 p.m., Dallas,
Texas time, on May 31, 2003 or the 30th day after the date on which this Warrant
becomes exercisable, exercise this Warrant with respect to all or any part of
the Vested Warrant Shares; provided, however, that in no event will the Holder
have less than 30 days to exercise this Warrant.
(f) If, pursuant to Section 3.3, this Warrant shall terminate
earlier than provided for in this Section 3.2, then the provisions of Section
3.3 shall prevail.
3.3 Termination of Warrant. Notwithstanding any provision of this
Warrant to the contrary, this Warrant shall expire and no longer be exercisable
upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the
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<PAGE> 7
HMC Group. The Company shall give the Holder reasonable prior notice of the
consummation of a Capital Reorganization. Appropriate per share adjustments
shall be made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
3.4 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement
dated as of October 16, 1996, as amended, by and among the Company and the other
parties listed therein (the "Stockholders Agreement"). The Company shall keep a
copy of the Stockholders Agreement, and any amendments thereto, at the Warrant
Agency and shall furnish copies thereof to the Holder upon request.
3.5 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the date
of issuance of this Warrant subdivide its outstanding shares of Common Stock
into a greater number of shares or consolidate its outstanding shares of Common
Stock into a smaller number of shares (any such event being called a "Common
Stock Reorganization"), then (a) the Exercise Price shall be adjusted, effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Common Stock Reorganization, to a price
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (b) the number of shares of Common Stock subject to purchase
upon exercise of this Warrant shall be adjusted, effective at such time, to a
number determined by multiplying the number of shares of Common Stock subject to
purchase immediately before such Common Stock Reorganization by a fraction, the
numerator of which shall be the number of shares outstanding after giving effect
to such Common Stock Reorganization and the denominator of which shall be the
number of shares of Common Stock outstanding immediately before such Common
Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value), in, outstanding shares of Common
Stock, or any sale, assignment, lease, exchange, conveyance or other transfer
(in one transaction or series of related transactions) of the property of the
Company as an entirety or substantially as an entirety or all or substantially
all of the outstanding equity securities of the Company to any person or group
of related
7
<PAGE> 8
persons for the purposes of Section 13(d) of the Exchange Act (any such event
being called a "Capital Reorganization"), then, effective upon the effective
date of such Capital Reorganization, the Holder shall have the right to
purchase, upon exercise of this Warrant, the kind and amount of shares of stock
and other securities and property (including cash) which the Holder would have
owned or have been entitled to receive after such Capital Reorganization if this
Warrant had been exercised immediately prior to such Capital Reorganization. As
a condition to effecting any Capital Reorganization, the Company or the
successor or surviving corporation, as the case may be, shall execute and
deliver to the Holder an agreement as to the Holder's rights in accordance with
this Section 4.3, providing for subsequent adjustments as nearly equivalent as
may be practicable to the adjustments provided for in this Article IV. The
provisions of this Section 4.3 shall similarly apply to successive Capital
Reorganizations.
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article IV
are not strictly applicable or, if strictly applicable, would not, in the good
faith judgment of the Board of Directors of the Company (the "Board"), fairly
protect the purchase rights of the Holder in accordance with the essential
intent and principles of such provisions, then the Board shall make such
adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this Article
IV shall be made successively whenever an event referred to herein shall occur.
(b) If the Company shall set a record date to determine the holders
of shares of Common Stock for purposes of a Common Stock Reorganization or
Capital Reorganization, and shall legally abandon such action prior to effecting
such action, then no adjustment shall be made pursuant to this Article IV in
respect of such action.
(c) No adjustment in the amount of shares purchasable upon exercise
of this Warrant or in the Exercise Price shall be made hereunder unless such
adjustment increases or decreases such amount or price by one percent or more,
but any such lesser adjustment shall be carried forward and shall be made at the
time and together with the next subsequent adjustment which together with any
adjustments so carried forward shall serve to adjust such amount or price by one
percent or more.
(d) No adjustment in the Exercise Price shall be made hereunder if
such adjustment would reduce the exercise price to an amount below par value of
the Common Stock, which par value shall initially be $.01 per share of Common
Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in reasonable
detail and specify the record date or effective date, as the case may be, and,
if determinable, the required adjustment and the computation thereof. If the
required adjustment is not determinable at the time of such notice, the Company
shall give reasonable notice to the Holder of such adjustment and computation
promptly after such adjustment becomes determinable.
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ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock is listed or admitted to trading is open for business or (b) if no
class of common stock of the Company is so listed or admitted to trading, a day
on which the New York Stock Exchange is open for business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
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<PAGE> 10
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of February 14, 1997, as amended, by and between the Company
and the Initial Holder, a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercisability Value" shall have the meaning set forth in Section
3.1(b).
"Exercise Price" means a per share price of $1.40.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board; provided,
however, that the Fair Market Value of any security for which a Closing Price is
available shall be the Market Price of such security.
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means R. Steven Hicks.
"IPO Offering Price" means the initial public offering price per share
of Class A Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day, means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that for purposes of determining
Fair Market Value as used in Section 3.1(b), "Market Price" means the daily
Closing Price of a share of Class A Common Stock on the date of determination;
provided further, however, that in the event that, in the case of common stock
of the Company, the Market Price is determined following the announcement by the
Company of any subdivision, combination or reclassification of common stock of
the Company or the record date for such subdivision,
10
<PAGE> 11
combination or reclassification, then, and in each such case, the Market Price
shall be appropriately adjusted to reflect the current market price per share
equivalent of common stock of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering of
Class A Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each share
of common stock of the Company received pursuant to a Capital Reorganization
that equals or exceeds the lesser of (i) the Exercisability Value or (ii) the
greater of (A) the Exercise Price compounded at an annual rate of 30% for the
period from April 3, 1998 to the end of the calendar month immediately preceding
the consummation of such Capital Reorganization or (B) a per share amount equal
to the IPO Offering Price compounded at an annual rate of 20% for the period
from the date on which a Qualified IPO is consummated to the end of the calendar
month immediately preceding the consummation of such Capital Reorganization.
"Related Entity" means any direct or indirect subsidiary of the Company
now existing or hereafter formed or acquired, any entity that directly or
indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon exercise
of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of persons
who are not Continuing Directors, and (iii) such purchaser or surviving entity
is not a member of the HMC Group. Appropriate per share adjustments shall be
made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act" shall mean the Securities Act of 1933 and any similar
or successor federal statute, and the rules and regulations of the Securities
and Exchange Commission (or its successor) thereunder, all as the same shall be
in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.4.
"Vested Warrant Shares" shall have the meaning set forth in Section 3.1
(a).
11
<PAGE> 12
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
"Warrant Shares" shall have the meaning set forth in the first
paragraph of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other communications
provided for herein shall be in writing and shall be effective upon delivery in
person, faxed or telecopied, or mailed by certified or registered mail, return
receipt requested, postage pre-paid, to the addresses specified on the signature
pages hereto or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a Holder) or to the
Holder (in the case of the Company) in accordance with the provisions of this
paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all Holders and, if appropriate,
notation thereof shall be made on all Warrants thereafter surrendered for
registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
12
<PAGE> 13
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms and
conditions of the Employment Agreement, the terms and conditions of this Warrant
shall be controlling.
[Remainder of page intentionally left blank]
13
<PAGE> 14
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
------------------------------
William S. Banowsky, Jr.
Executive Vice President
ACCEPTED AND AGREED TO:
/s/ R. STEVEN HICKS
- ------------------------------
Name: R. Steven Hicks
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 15
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION:
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder _________ shares of Common Stock in payment
of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
__________________________________
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee
appearing in the assignment
form below.
<PAGE> 16
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- ------------------------------ ----------------------------
Signature Printed Name of Entity
By:
- ------------------------------ -------------------------
Printed Name Name:
--------------------
Title:
-------------------
<PAGE> 17
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.11
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE
TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL IN
REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER
ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED
BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF COMMON
STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED
AS OF JULY 8, 1997, AS AMENDED, BY AND AMONG THE COMPANY AND THE OTHER PARTIES
LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 1,500,000 Shares of Class A Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING MAY 31, 2003
THIS IS TO CERTIFY THAT, for value received, Paul D. Stone, or
registered assigns as a holder (the "Holder") of this Warrant (the "Warrant")
is entitled to purchase from the Company (as hereinafter defined) at the place
where the Warrant Agency (as hereinafter defined) is located, at the Exercise
Price (as hereinafter defined), 1,500,000 shares (the "Warrant Shares") of
Class A Common Stock, par value $.01 per share (the "Common Stock"), of the
Company, subject to adjustment and upon the terms and conditions as hereinafter
provided.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) the number of shares of Common Stock to
be purchased under the Warrant, (ii) the denominations of the share certificate
or certificates desired, and (iii) the name or names in which such certificates
are to the registered, (c) if the Common Stock to be received upon the exercise
of this Warrant has not been registered under the Securities Act, a written
certification in substantially the form of the Certification attached hereto as
Annex B, and
<PAGE> 2
(d) payment of the Exercise Price with respect to such shares. Such payment
may be made, at the option of the Holder, by cash, money order, certified or
bank cashier's check or wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such
notice. Such certificate or certificates shall be deemed to have been issued,
and such Holder or any other Person so designated to be named therein shall be
deemed for all purposes to have become a holder of record of such shares, as of
the date the aforementioned notice is received by the Company. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of the certificate or certificates, deliver to the Holder a new
Warrant evidencing the rights to purchase the remaining shares of Common Stock
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder, appropriate
notation may be made on this Warrant which shall then be returned to the
Holder. The Company shall pay all expenses, taxes (if any) and other charges
payable in connection with the preparation, issuance and delivery of share
certificates and a new Warrant, except that, if share certificates or a new
Warrant shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise or promptly upon receipt of a written request
of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such
shares are registered under the Securities Act, shall bear the following
legend:
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of
this security has not been reviewed or approved by any state
securities administrator.
2
<PAGE> 3
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate and reasonably acceptable to
the Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of
Common Stock registered under the Securities Act, the Company may promptly
appoint and thereafter maintain, at its own expense, an agency in New York, New
York, which agency may be the Company's then existing transfer agent (the
"Warrant Agency"), for certain purposes specified herein, and shall give prompt
notice of such appointment (and appointment of any successor Warrant Agency) to
the Holder. Until an independent Warrant Agency is so appointed, the Company
shall perform the obligations of the Warrant Agency provided herein at its
address as specified on the signature page hereto or such other address as the
Company shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any
Person other than the Warrant Agency) for all purposes and shall not be
affected by any notice to the contrary, until presentation of this Warrant for
registration of transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant
Agency, together with a written assignment of this Warrant duly executed by the
Holder or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon
surrender the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denominations specified in the
instrument of assignment, and this Warrant shall promptly be canceled. The
Warrant Agency shall not be required to register any transfers if the Holder
fails to furnish to the Company, after a request therefor, an opinion of
counsel (who may be an employee of such Holder) reasonably satisfactory to the
Company that such transfer is exempt from the registration requirements of the
Securities Act and applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon
surrender hereof to the Warrant Agency, together with a written notice
specifying the names and denominations in which the new Warrants are to be
issued, signed by the Holder. Subject to compliance with Section 2.3 as
3
<PAGE> 4
to any transfer which may be involved in the division, the Company shall
execute and deliver new Warrants in exchange for the Warrant or Warrants to be
divided in accordance with such notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of shares of
Common Stock as provided for in such lost, stolen, destroyed or mutilated
Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Exercise.
(a) Except as otherwise provided in Sections 3.2 and 3.3,
the Warrant Shares shall become "Vested Warrant Shares" with respect to 20% of
the Warrant Shares on the first anniversary of the date of this Warrant, and
1/60th of the Warrant Shares shall vest and become Vested Warrant Shares on the
last day of each calendar month thereafter, so that all of the Warrant Shares
shall be vested and become Vested Warrant Shares 60 months after the date of
this Warrant.
(b) Except as otherwise provided in Sections 3.2 and 3.3,
this Warrant shall become exercisable to acquire Vested Warrant Shares at any
time or from time to time after the date on which the average Fair Market Value
of the Common Stock, calculated on a daily basis (when added to any cash
consideration attributable to any prior Capital Reorganization), equals or
exceeds $6.00 per share (the "Exercisability Value") for a period of 180
consecutive days (excluding non-Business Days for purposes of calculating the
average Fair Market Value during such 180-day period) during the period from
(and including) April 1, 1998 through (and including) May 31, 2003. Upon the
completion of a Common Stock Reorganization, the Exercisability Value shall be
adjusted, effective immediately after the record date at which the holders of
shares of Common Stock are determined for purposes of such Common Stock
Reorganization, to a dollar amount determined by multiplying the Exercisability
Value in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding on
such record date before giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Stock Reorganization.
(c) Notwithstanding clauses (a) and (b), the Warrant
Shares shall become Vested Warrant Shares, and this Warrant shall become
exercisable, immediately preceding the consummation of a Sale of the Company.
(d) Except as otherwise provided in Section 3.2, the
unexercised portion of this Warrant, if any, will automatically, and without
notice, terminate and become null and void at 5:00 p.m., Dallas, Texas time, on
the later to occur of May 31, 2003 or the 90th day after this Warrant becomes
exercisable.
4
<PAGE> 5
3.2 Termination of Employment. Notwithstanding Section 3.1:
(a) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
death, the Warrant Shares shall become Vested Warrant Shares on the Date of
Termination. If this Warrant has become exercisable on or before the Date of
Termination, then the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise this Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the first anniversary of the Date of Termination, exercise this Warrant with
respect to all or any part of the Vested Warrant Shares; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise this Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) have
less than 90 days after the Date of Termination to exercise this Warrant. If
this Warrant has not become exercisable on or before the Date of Termination,
then (i) this Warrant shall remain in full force and effect until May 31, 2003
and (ii) if this Warrant becomes exercisable on or before May 31, 2003, then
the Holder (or, in the case of the Initial Holder, the Holder's estate or any
person who acquired the right to exercise this Warrant by bequest or
inheritance or otherwise by reason of the Holder's death) may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first
anniversary of the date on which this Warrant becomes exercisable, exercise
this Warrant with respect to all or any part of the Vested Warrant Shares;
provided, however, that in no event will the Holder (or, in the case of the
Initial Holder, the Holder's estate or any person who acquired the right to
exercise this Warrant by bequest or inheritance or otherwise by reason of the
Holder's death) have less than 90 days to exercise this Warrant.
(b) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
Disability, the Warrant Shares shall become Vested Warrant Shares on the Date
of Termination. If this Warrant has become exercisable on or before the Date
of Termination, then the Holder (or, in the case of the Initial Holder, the
Holder's legal representatives) may, until the earlier to occur of 5:00 p.m.,
Dallas, Texas time, on May 31, 2003 or the first anniversary of the Date of
Termination, exercise this Warrant with respect to all or any part of the
Vested Warrant Shares; provided, however, that in no event will the Holder (or,
in the case of the Initial Holder, the Holder's legal representatives) have
less than 90 days after the Date of Termination to exercise this Warrant. If
this Warrant has not become exercisable on or before the Date of Termination,
then (i) this Warrant shall remain in full force and effect until May 31, 2003
and (ii) if this Warrant becomes exercisable on or before May 31, 2003, then
the Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) may, until the earlier to occur of 5:00 p.m., Dallas, Texas
time, on May 31, 2003 or the first anniversary of the date on which this
Warrant becomes exercisable, exercise this Warrant with respect to all or any
part of the Vested Warrant Shares; provided, however, that in no event will the
Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) have less than 90 days to exercise this Warrant.
(c) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment for Cause or the Initial Holder's resignation for
other than Good Reason, the Holder shall forfeit all of the Holder's rights
under this Warrant, except as to those Warrant Shares already purchased, and
this Warrant shall automatically, and without notice, terminate and become null
and void at 5:00 p.m., Dallas, Texas time, on the Date of Termination.
5
<PAGE> 6
(d) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment without Cause or the Initial Holder's resignation for
Good Reason and, in either case, without a Board Determination, the Warrant
Shares shall become Vested Warrant Shares on the Date of Termination. If this
Warrant has become exercisable on or before the Date of Termination, then the
Holder may, until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May
31, 2003 or the 90th day after the Date of Termination, exercise this Warrant
with respect to all or any part of the Vested Warrant Shares; provided,
however, that in no event will the Holder have less than 90 days after the Date
of Termination to exercise this Warrant. If this Warrant has not become
exercisable on or before the Date of Termination, then (i) this Warrant shall
remain in full force and effect until May 31, 2003 and (ii) if this Warrant
becomes exercisable on or before May 31, 2003, then the Holder may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th
day after the date on which this Warrant becomes exercisable, exercise this
Warrant with respect to all or any part of the Vested Warrant Shares; provided,
however, that in no event will the Holder have less than 90 days to exercise
this Warrant.
(e) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment without Cause or the Initial Holder's resignation for
Good Reason and, in either case, with a Board Determination, no additional
Warrant Shares shall vest after the Date of Termination. If this Warrant has
become exercisable on or before the Date of Termination, then the Holder may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the 30th day after the Date of Termination, exercise this Warrant with respect
to all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 30 days after the Date of Termination to
exercise this Warrant. If this Warrant has not become exercisable on or before
the Date of Termination, then (i) this Warrant shall remain in full force and
effect until May 31, 2003, and (ii) if this Warrant becomes exercisable on or
before May 31, 2003, then the Holder may, until the earlier to occur of 5:00
p.m., Dallas, Texas time, on May 31, 2003 or the 30th day after the date on
which this Warrant becomes exercisable, exercise this Warrant with respect to
all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 30 days to exercise this Warrant.
(f) If, pursuant to Section 3.3, this Warrant shall
terminate earlier than provided for in this Section 3.2, then the provisions of
Section 3.3 shall prevail.
3.3 Termination of Warrant. Notwithstanding any provision of this
Warrant to the contrary, this Warrant shall expire and no longer be exercisable
upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the HMC Group. The Company shall give the Holder reasonable prior
notice of the consummation of a Capital Reorganization. Appropriate per share
adjustments shall be made to take into account, on a comparable per share
basis, any cash consideration attributable to any prior Capital Reorganization.
3.4 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement
dated as of July 8, 1997, as amended, by and among the Company and the other
parties listed therein (the "Stockholders
6
<PAGE> 7
Agreement"). The Company shall keep a copy of the Stockholders Agreement, and
any amendments thereto, at the Warrant Agency and shall furnish copies thereof
to the Holder upon request.
3.5 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the
date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization,
to a price determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date before giving
effect to such Common Stock Reorganization and the denominator of which shall
be the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (b) the number of shares of Common Stock
subject to purchase upon exercise of this Warrant shall be adjusted, effective
at such time, to a number determined by multiplying the number of shares of
Common Stock subject to purchase immediately before such Common Stock
Reorganization by a fraction, the numerator of which shall be the number of
shares outstanding after giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such Common Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a
Common Stock Reorganization or a change in par value), in, outstanding shares
of Common Stock, or any sale, assignment, lease, exchange, conveyance or other
transfer (in one transaction or series of related transactions) of the property
of the Company as an entirety or substantially as an entirety or all or
substantially all of the outstanding equity securities of the Company to any
person or group of related persons for the purposes of Section 13(d) of the
Exchange Act (any such event being called a "Capital Reorganization"), then,
effective upon the effective date of such Capital Reorganization, the Holder
shall have the right to purchase, upon exercise of this Warrant, the kind and
amount of shares of stock and other securities and property (including cash)
which the Holder would have owned or have been entitled to receive after such
Capital Reorganization if this Warrant had been exercised immediately prior to
such Capital Reorganization. As a condition to effecting any Capital
Reorganization, the Company or the successor or surviving corporation, as the
case may be, shall execute and deliver to the Holder an agreement as to the
Holder's rights in accordance with this Section 4.3, providing for subsequent
adjustments as nearly equivalent as may be practicable to the adjustments
provided for in this Article IV. The provisions of this Section 4.3 shall
similarly apply to successive Capital Reorganizations.
7
<PAGE> 8
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article
IV are not strictly applicable or, if strictly applicable, would not, in the
good faith judgment of the Board of Directors of the Company (the "Board"),
fairly protect the purchase rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board shall make
such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein
shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this
Article IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder
unless such adjustment increases or decreases such amount or price by one
percent or more, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment
which together with any adjustments so carried forward shall serve to adjust
such amount or price by one percent or more.
(d) No adjustment in the Exercise Price shall be made hereunder if
such adjustment would reduce the exercise price to an amount below par value of
the Common Stock, which par value shall initially be $.01 per share of Common
Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in
reasonable detail and specify the record date or effective date, as the case
may be, and, if determinable, the required adjustment and the computation
thereof. If the required adjustment is not determinable at the time of such
notice, the Company shall give reasonable notice to the Holder of such
adjustment and computation promptly after such adjustment becomes determinable.
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
8
<PAGE> 9
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock of the Company is listed or admitted to trading is open for
business or (b) if no class of common stock of the Company is so listed or
admitted to trading, a day on which the New York Stock Exchange is open for
business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported
sale occurs on such day, the average of the closing bid and asked prices
regular way on such day, in each case as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such class of security is listed or
admitted to trading, or (b) if such security is not listed or admitted to
trading on any national securities exchange, the last quoted sales price, or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market on such day as reported by NASDAQ or any comparable
system then in use or, if not so reported, as reported by any New York Stock
Exchange member firm reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation of merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
"Employment Agreement" means that certain Executive Employment
Agreement dated as of July 1, 1997, as amended, by and between the Company and
the Initial Holder and for certain limited purposes, Capstar Broadcasting
Partners, Inc., a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as
the same shall be in effect at the time.
"Exercisability Value" shall have the meaning set forth in Section
3.1(b).
9
<PAGE> 10
"Exercise Price" means a per share price of $1.40.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board; provided,
however, that the Fair Market Value of any security for which a Closing Price
is available shall be the Market Price of such security.
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means Paul D. Stone.
"IPO Offering Price" means the initial public offering price per share
of Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day, means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that for purposes of determining
Fair Market Value as used in Section 3.1(b), "Market Price" means the daily
Closing Price of a share of Common Stock on the date of determination; provided
further, however, that in the event that, in the case of Common Stock, the
Market Price is determined following the announcement by the Company of any
subdivision, combination or reclassification of Common Stock or the record date
for such subdivision, combination or reclassification, then, and in each such
case, the Market Price shall be appropriately adjusted to reflect the current
market price per share equivalent of Common Stock.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO"means a firm commitment underwritten public offering of
Common Stock for cash pursuant to a registration statement under the Securities
Act where the aggregate proceeds to the Company prior to deducting any
underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
10
<PAGE> 11
"Qualifying Cash Consideration" means cash consideration for each
share of common stock of the Company received pursuant to a Capital
Reorganization that equals or exceeds the lesser of (i) the Exercisability
Value or (ii) the greater of (A) the Exercise Price compounded at an annual
rate of 30% for the period from April 3, 1998 to the end of the calendar month
immediately preceding the consummation of such Capital Reorganization or (B) a
per share amount equal to the IPO Offering Price compounded at an annual rate
of 20% for the period from the date on which a Qualified IPO is consummated to
the end of the calendar month immediately preceding the consummation of such
Capital Reorganization.
"Related Entity" means any direct or indirect subsidiary of the
Company now existing or hereafter formed or acquired, any entity that directly
or indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon
exercise of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of
persons who are not Continuing Directors, and (iii) such purchaser or surviving
entity is not a member of the HMC Group. Appropriate per share adjustments
shall be made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act" shall mean the Securities Act of 1933 and any similar
or successor federal statute, and the rules and regulations of the Securities
and Exchange Commission (or its successor) thereunder, all as the same shall be
in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.4.
"Vested Warrant Shares" shall have the meaning set forth in Section
3.1 (a).
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
"Warrant Shares" shall have the meaning set forth in the first
paragraph of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed or telecopied, or mailed by certified or
registered mail, return receipt requested, postage pre-paid, to the addresses
specified on the signature pages hereto or, in any case, at such other address
or addresses as shall have been furnished in writing to the Company (in the
case of a Holder) or to the Holder (in the case of the Company) in accordance
with the provisions of this paragraph.
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<PAGE> 12
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver
the Company shall give prompt notice thereof to all Holders and, if
appropriate, notation thereof shall be made on all Warrants thereafter
surrendered for registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms
and conditions of the Employment Agreement, the terms and conditions of this
Warrant shall be controlling.
12
<PAGE> 13
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ WILLIAM S. BANOWSKY, JR.
-------------------------------------
William S. Banowsky, Jr.
Executive Vice President
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
ACCEPTED AND AGREED TO:
/s/ PAUL D. STONE
- ---------------------------
Name: Paul D. Stone
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 14
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION:
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder _________ shares of Common Stock in payment
of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ,
------------------- ------
-----------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee
appearing in the assignment
form below.
<PAGE> 15
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- -------------------------------- --------------------------------
Signature Printed Name of Entity
By:
- -------------------------------- -----------------------------
Printed Name Name:
---------------------
Title:
--------------------
<PAGE> 16
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.12
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE
TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL IN
REASONABLY ACCEPTABLE FORM AND SCOPE REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER
ANY SUCH LAWS. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED
BY ANY STATE'S SECURITIES ADMINISTRATOR. THIS WARRANT AND THE SHARES OF COMMON
STOCK PURCHASABLE HEREUNDER ARE ALSO SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED
AS OF NOVEMBER 26, 1996, AS AMENDED, BY AND AMONG THE COMPANY AND THE OTHER
PARTIES LISTED THEREIN, COPIES OF WHICH ARE ON FILE WITH THE COMPANY AND WILL
BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Dated: April 1, 1998
WARRANT
To Purchase 1,500,000 Shares of Class A Common Stock
CAPSTAR BROADCASTING CORPORATION
EXPIRING MAY 31, 2003
THIS IS TO CERTIFY THAT, for value received, William S. Banowsky, Jr.,
or registered assigns as a holder (the "Holder") of this Warrant (the
"Warrant") is entitled to purchase from the Company (as hereinafter defined) at
the place where the Warrant Agency (as hereinafter defined) is located, at the
Exercise Price (as hereinafter defined), 1,500,000 shares (the "Warrant
Shares") of Class A Common Stock, par value $.01 per share (the "Common
Stock"), of the Company, subject to adjustment and upon the terms and
conditions as hereinafter provided.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company, at the Warrant Agency, (a) this
Warrant, (b) a written notice, in substantially the form of the Subscription
Notice attached hereto as Annex A, of such Holder's election to exercise this
Warrant, which notice shall specify (i) the number of shares of Common Stock to
be purchased under the Warrant, (ii) the denominations of the share certificate
or certificates desired, and (iii) the name or names in which such certificates
are to the registered, (c) if the Common Stock to be received upon the exercise
of this Warrant has not been registered under the Securities Act, a written
certification in substantially the form of the Certification attached hereto as
Annex B, and
<PAGE> 2
(d) payment of the Exercise Price with respect to such shares. Such payment
may be made, at the option of the Holder, by cash, money order, certified or
bank cashier's check or wire transfer.
The Company shall, as promptly as practicable and in any event within
five Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice or, if such notice shall not
specify denominations, shall be in the amount of the number of shares of Common
Stock for which the Warrant is being exercised, and shall be issued in the name
of the Holder or such other name or names as shall be designated in such
notice. Such certificate or certificates shall be deemed to have been issued,
and such Holder or any other Person so designated to be named therein shall be
deemed for all purposes to have become a holder of record of such shares, as of
the date the aforementioned notice is received by the Company. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of the certificate or certificates, deliver to the Holder a new
Warrant evidencing the rights to purchase the remaining shares of Common Stock
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder, appropriate
notation may be made on this Warrant which shall then be returned to the
Holder. The Company shall pay all expenses, taxes (if any) and other charges
payable in connection with the preparation, issuance and delivery of share
certificates and a new Warrant, except that, if share certificates or a new
Warrant shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise or promptly upon receipt of a written request
of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes.
1.3 No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
Market Value per share of Common Stock of the Company on the Business Day
immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such
shares are registered under the Securities Act, shall bear the following
legend:
"This security has not been registered under the Securities Act of
1933, as amended, or under the securities laws of any state or other
jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said Act and
applicable state securities laws or unless the Company receives an
opinion of counsel in reasonably acceptable form and scope reasonably
satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The offering of
this security has not been reviewed or approved by any state
securities administrator.
<PAGE> 3
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate and reasonably acceptable to
the Company, the securities represented thereby are no longer subject to
restrictions on resale under the Securities Act.
1.5 Reservation; Authorization. The Company has reserved and will
keep available for issuance upon exercise of this Warrant the total number of
shares of Common Stock deliverable upon exercise of this Warrant from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with this Warrant, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Warrant Agency. At any time after a public offering of
Common Stock registered under the Securities Act, the Company may promptly
appoint and thereafter maintain, at its own expense, an agency in New York, New
York, which agency may be the Company's then existing transfer agent (the
"Warrant Agency"), for certain purposes specified herein, and shall give prompt
notice of such appointment (and appointment of any successor Warrant Agency) to
the Holder. Until an independent Warrant Agency is so appointed, the Company
shall perform the obligations of the Warrant Agency provided herein at its
address as specified on the signature page hereto or such other address as the
Company shall specify by notice to the Holder.
2.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any
Person other than the Warrant Agency) for all purposes and shall not be
affected by any notice to the contrary, until presentation of this Warrant for
registration of transfer as provided in this Article II.
2.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant
Agency, together with a written assignment of this Warrant duly executed by the
Holder or his duly authorized agent or attorney, with (unless the Holder is the
original Holder or another institutional investor) signatures guaranteed by a
bank or trust company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon
surrender the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denominations specified in the
instrument of assignment, and this Warrant shall promptly be canceled. The
Warrant Agency shall not be required to register any transfers if the Holder
fails to furnish to the Company, after a request therefor, an opinion of
counsel (who may be an employee of such Holder) reasonably satisfactory to the
Company that such transfer is exempt from the registration requirements of the
Securities Act and applicable blue sky laws.
2.4 Division of Warrant. This Warrant may be divided upon
surrender hereof to the Warrant Agency, together with a written notice
specifying the names and denominations in which
3
<PAGE> 4
the new Warrants are to be issued, signed by the Holder. Subject to compliance
with Section 2.3 as to any transfer which may be involved in the division, the
Company shall execute and deliver new Warrants in exchange for the Warrant or
Warrants to be divided in accordance with such notice.
2.5 Loss, Theft, Destruction or Mutilation of Warrants. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of shares of
Common Stock as provided for in such lost, stolen, destroyed or mutilated
Warrant.
2.6 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant and the
Common Stock issuable hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1 Exercise.
(a) Except as otherwise provided in Sections 3.2 and 3.3,
the Warrant Shares shall become "Vested Warrant Shares" with respect to 20% of
the Warrant Shares on the first anniversary of the date of this Warrant, and
1/60th of the Warrant Shares shall vest and become Vested Warrant Shares on the
last day of each calendar month thereafter, so that all of the Warrant Shares
shall be vested and become Vested Warrant Shares 60 months after the date of
this Warrant.
(b) Except as otherwise provided in Sections 3.2 and 3.3,
this Warrant shall become exercisable to acquire Vested Warrant Shares at any
time or from time to time after the date on which the average Fair Market Value
of the Common Stock, calculated on a daily basis (when added to any cash
consideration attributable to any prior Capital Reorganization), equals or
exceeds $6.00 per share (the "Exercisability Value") for a period of 180
consecutive days (excluding non-Business Days for purposes of calculating the
average Fair Market Value during such 180-day period) during the period from
(and including) April 1, 1998 through (and including) May 31, 2003. Upon the
completion of a Common Stock Reorganization, the Exercisability Value shall be
adjusted, effective immediately after the record date at which the holders of
shares of Common Stock are determined for purposes of such Common Stock
Reorganization, to a dollar amount determined by multiplying the Exercisability
Value in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding on
such record date before giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Stock Reorganization.
(c) Notwithstanding clauses (a) and (b), the Warrant
Shares shall become Vested Warrant Shares, and this Warrant shall become
exercisable, immediately preceding the consummation of a Sale of the Company.
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<PAGE> 5
(d) Except as otherwise provided in Section 3.2, the
unexercised portion of this Warrant, if any, will automatically, and without
notice, terminate and become null and void at 5:00 p.m., Dallas, Texas time, on
the later to occur of May 31, 2003 or the 90th day after this Warrant becomes
exercisable.
3.2 Termination of Employment. Notwithstanding Section 3.1:
(a) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
death, the Warrant Shares shall become Vested Warrant Shares on the Date of
Termination. If this Warrant has become exercisable on or before the Date of
Termination, then the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise this Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the first anniversary of the Date of Termination, exercise this Warrant with
respect to all or any part of the Vested Warrant Shares; provided, however,
that in no event will the Holder (or, in the case of the Initial Holder, the
Holder's estate or any person who acquired the right to exercise this Warrant
by bequest or inheritance or otherwise by reason of the Holder's death) have
less than 90 days after the Date of Termination to exercise this Warrant. If
this Warrant has not become exercisable on or before the Date of Termination,
then (i) this Warrant shall remain in full force and effect until May 31, 2003
and (ii) if this Warrant becomes exercisable on or before May 31, 2003, then
the Holder (or, in the case of the Initial Holder, the Holder's estate or any
person who acquired the right to exercise this Warrant by bequest or
inheritance or otherwise by reason of the Holder's death) may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the first
anniversary of the date on which this Warrant becomes exercisable, exercise
this Warrant with respect to all or any part of the Vested Warrant Shares;
provided, however, that in no event will the Holder (or, in the case of the
Initial Holder, the Holder's estate or any person who acquired the right to
exercise this Warrant by bequest or inheritance or otherwise by reason of the
Holder's death) have less than 90 days to exercise this Warrant.
(b) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
Disability, the Warrant Shares shall become Vested Warrant Shares on the Date
of Termination. If this Warrant has become exercisable on or before the Date
of Termination, then the Holder (or, in the case of the Initial Holder, the
Holder's legal representatives) may, until the earlier to occur of 5:00 p.m.,
Dallas, Texas time, on May 31, 2003 or the first anniversary of the Date of
Termination, exercise this Warrant with respect to all or any part of the
Vested Warrant Shares; provided, however, that in no event will the Holder (or,
in the case of the Initial Holder, the Holder's legal representatives) have
less than 90 days after the Date of Termination to exercise this Warrant. If
this Warrant has not become exercisable on or before the Date of Termination,
then (i) this Warrant shall remain in full force and effect until May 31, 2003
and (ii) if this Warrant becomes exercisable on or before May 31, 2003, then
the Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) may, until the earlier to occur of 5:00 p.m., Dallas, Texas
time, on May 31, 2003 or the first anniversary of the date on which this
Warrant becomes exercisable, exercise this Warrant with respect to all or any
part of the Vested Warrant Shares; provided, however, that in no event will the
Holder (or, in the case of the Initial Holder, the Holder's legal
representatives) have less than 90 days to exercise this Warrant.
(c) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment for Cause or the Initial
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<PAGE> 6
Holder's resignation for other than Good Reason, the Holder shall forfeit all
of the Holder's rights under this Warrant, except as to those Warrant Shares
already purchased, and this Warrant shall automatically, and without notice,
terminate and become null and void at 5:00 p.m., Dallas, Texas time, on the
Date of Termination.
(d) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment without Cause or the Initial Holder's resignation for
Good Reason and, in either case, without a Board Determination, the Warrant
Shares shall become Vested Warrant Shares on the Date of Termination. If this
Warrant has become exercisable on or before the Date of Termination, then the
Holder may, until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May
31, 2003 or the 90th day after the Date of Termination, exercise this Warrant
with respect to all or any part of the Vested Warrant Shares; provided,
however, that in no event will the Holder have less than 90 days after the Date
of Termination to exercise this Warrant. If this Warrant has not become
exercisable on or before the Date of Termination, then (i) this Warrant shall
remain in full force and effect until May 31, 2003 and (ii) if this Warrant
becomes exercisable on or before May 31, 2003, then the Holder may, until the
earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or the 90th
day after the date on which this Warrant becomes exercisable, exercise this
Warrant with respect to all or any part of the Vested Warrant Shares; provided,
however, that in no event will the Holder have less than 90 days to exercise
this Warrant.
(e) Upon the termination of the Initial Holder's
employment with the Company or any Related Entity due to the Initial Holder's
termination of employment without Cause or the Initial Holder's resignation for
Good Reason and, in either case, with a Board Determination, no additional
Warrant Shares shall vest after the Date of Termination. If this Warrant has
become exercisable on or before the Date of Termination, then the Holder may,
until the earlier to occur of 5:00 p.m., Dallas, Texas time, on May 31, 2003 or
the 30th day after the Date of Termination, exercise this Warrant with respect
to all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 30 days after the Date of Termination to
exercise this Warrant. If this Warrant has not become exercisable on or before
the Date of Termination, then (i) this Warrant shall remain in full force and
effect until May 31, 2003, and (ii) if this Warrant becomes exercisable on or
before May 31, 2003, then the Holder may, until the earlier to occur of 5:00
p.m., Dallas, Texas time, on May 31, 2003 or the 30th day after the date on
which this Warrant becomes exercisable, exercise this Warrant with respect to
all or any part of the Vested Warrant Shares; provided, however, that in no
event will the Holder have less than 30 days to exercise this Warrant.
(f) If, pursuant to Section 3.3, this Warrant shall
terminate earlier than provided for in this Section 3.2, then the provisions of
Section 3.3 shall prevail.
3.3 Termination of Warrant. Notwithstanding any provision of this
Warrant to the contrary, this Warrant shall expire and no longer be exercisable
upon either (a) the consummation of a Sale of the Company or (b) the
consummation of a Capital Reorganization in which (i) the stockholders of the
Company receive only cash consideration for each share of common stock of the
Company held by such stockholder that is less (when added to any cash
consideration attributable to any prior Capital Reorganization) than the
Qualifying Cash Consideration, (ii) a majority of directors of the purchaser or
surviving entity in such Capital Reorganization consists of persons who are not
Continuing Directors, and (iii) such purchaser or surviving entity is not a
member of the
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<PAGE> 7
HMC Group. The Company shall give the Holder reasonable prior notice of the
consummation of a Capital Reorganization. Appropriate per share adjustments
shall be made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
3.4 Stockholders Agreement. This Warrant and the Common Stock
issuable upon exercise of this Warrant is subject to a Stockholders Agreement
dated as of November 26, 1996, as amended, by and among the Company and the
other parties listed therein (the "Stockholders Agreement"). The Company shall
keep a copy of the Stockholders Agreement, and any amendments thereto, at the
Warrant Agency and shall furnish copies thereof to the Holder upon request.
3.5 Notice of Fair Market Value. Upon each determination of Fair
Market Value hereunder (other than a determination relating solely to setting
the value of fractional shares), the Company shall promptly give notice thereof
to the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after the
date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization,
to a price determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date before giving
effect to such Common Stock Reorganization and the denominator of which shall
be the number of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (b) the number of shares of Common Stock
subject to purchase upon exercise of this Warrant shall be adjusted, effective
at such time, to a number determined by multiplying the number of shares of
Common Stock subject to purchase immediately before such Common Stock
Reorganization by a fraction, the numerator of which shall be the number of
shares outstanding after giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such Common Stock Reorganization.
4.3 Capital Reorganization. If after the date of issuance of this
Warrant there shall be any consolidation or merger to which the Company is a
party (whether or not the Company is the surviving entity), other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a
Common Stock Reorganization or a change in par value), in, outstanding shares
of Common Stock, or any sale, assignment, lease, exchange, conveyance or other
transfer (in one transaction or series of related transactions) of the property
of the Company as an entirety or substantially as an entirety or all or
substantially all of the outstanding equity securities of the Company to any
person or group of related
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<PAGE> 8
persons for the purposes of Section 13(d) of the Exchange Act (any such event
being called a "Capital Reorganization"), then, effective upon the effective
date of such Capital Reorganization, the Holder shall have the right to
purchase, upon exercise of this Warrant, the kind and amount of shares of stock
and other securities and property (including cash) which the Holder would have
owned or have been entitled to receive after such Capital Reorganization if
this Warrant had been exercised immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder an agreement as to the Holder's rights in
accordance with this Section 4.3, providing for subsequent adjustments as
nearly equivalent as may be practicable to the adjustments provided for in this
Article IV. The provisions of this Section 4.3 shall similarly apply to
successive Capital Reorganizations.
4.4 Certain Other Events. If any event occurs after the date of
issuance of this Warrant as to which the foregoing provisions of this Article
IV are not strictly applicable or, if strictly applicable, would not, in the
good faith judgment of the Board of Directors of the Company (the "Board"),
fairly protect the purchase rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board shall make
such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as aforesaid.
4.5 Adjustment Rules. (a) Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein
shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this
Article IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made hereunder
unless such adjustment increases or decreases such amount or price by one
percent or more, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment
which together with any adjustments so carried forward shall serve to adjust
such amount or price by one percent or more.
(d) No adjustment in the Exercise Price shall be made hereunder if
such adjustment would reduce the exercise price to an amount below par value of
the Common Stock, which par value shall initially be $.01 per share of Common
Stock.
4.6 Notice of Adjustment. The Company shall give the Holder
reasonable notice of the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or readjustment
pursuant to this Article IV. Such notice shall describe such event in
reasonable detail and specify the record date or effective date, as the case
may be, and, if determinable, the required adjustment and the computation
thereof. If the required adjustment is not determinable at the time of such
notice, the Company shall give reasonable notice to the Holder of such
adjustment and computation promptly after such adjustment becomes determinable.
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<PAGE> 9
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Affiliate", means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person.
"Board Determination" shall have the meaning set forth in Section 3(b)
of the Employment Agreement.
"Business Day" shall mean (a) if any class of common stock of the
Company is listed or admitted to trading on a national securities exchange, a
day on which the principal national securities exchange on which such class of
common stock of the Company is listed or admitted to trading is open for
business or (b) if no class of common stock of the Company is so listed or
admitted to trading, a day on which the New York Stock Exchange is open for
business.
"Capital Reorganization" shall have the meaning set forth in Section
4.3.
"Cause" shall have the meaning set fort in Section 3(b) of the
Employment Agreement.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported
sale occurs on such day, the average of the closing bid and asked prices
regular way on such day, in each case as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such class of security is listed or
admitted to trading, or (b) if such security is not listed or admitted to
trading on any national securities exchange, the last quoted sales price, or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market on such day as reported by NASDAQ or any comparable
system then in use or, if not so reported, as reported by any New York Stock
Exchange member firm reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first paragraph
of this Warrant.
"Common Stock Reorganization" shall have the meaning set forth in
Section 4.2.
"Company" shall mean Capstar Broadcasting Corporation, a Delaware
corporation, or any entity which is the continuing corporation of a
consolidation or merger to which the Company is a party or to which the Company
sells or conveys the property of the Company as an entirety or substantially as
an entirety.
"Continuing Director" means, as of the date of determination, any
person who (i) was a member of the Board immediately prior to the date of
determination or (ii) is a designee or member of the HMC Group.
"Date of Termination" shall have the meaning set forth in Section 3(e)
of the Employment Agreement.
"Disability" shall have the meaning set forth in Section 3(a) of the
Employment Agreement.
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<PAGE> 10
"Employment Agreement" means that certain Executive Employment
Agreement dated as of July 1, 1997, as amended, by and between the Company and
the Initial Holder and for certain limited purposes, Capstar Broadcasting
Partners, Inc., a copy of which is attached as Annex C hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as
the same shall be in effect at the time.
"Exercisability Value" shall have the meaning set forth in Section
3.1(b).
"Exercise Price" means a per share price of $1.40.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board; provided,
however, that the Fair Market Value of any security for which a Closing Price
is available shall be the Market Price of such security.
"Good Reason" shall have the meaning set forth in Section 3(c) of the
Employment Agreement.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant. The term Holders shall refer to all Holders of Warrants.
"HMC Group" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families
(other than R. Steven Hicks) and trusts for the primary benefit of such family
members).
"HMTF" means Hicks, Muse, Tate & Furst Incorporated.
"Initial Holder" means William S. Banowsky, Jr.
"IPO Offering Price" means the initial public offering price per share
of Common Stock in a Qualified IPO, prior to deducting any underwriters'
discounts and commissions from such offering price.
"Market Price", with respect to any security on any day, means the
average of the daily Closing Prices of a share or unit of such security for the
20 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that for purposes of determining
Fair Market Value as used in Section 3.1(b), "Market Price" means the daily
Closing Price of a share of Common Stock on the date of determination; provided
further, however, that in the event that, in the case of Common Stock, the
Market Price is determined following the announcement by the Company of any
subdivision, combination or reclassification of Common Stock or the record date
for such subdivision, combination or reclassification, then, and in each such
case, the Market Price shall be appropriately adjusted to reflect the current
market price per share equivalent of Common Stock.
"NASD" means The National Association of Securities Dealers, Inc.
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<PAGE> 11
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Qualified IPO" means a firm commitment underwritten public offering
of Common Stock for cash pursuant to a registration statement under the
Securities Act where the aggregate proceeds to the Company prior to deducting
any underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $200 million.
"Qualifying Cash Consideration" means cash consideration for each
share of common stock of the Company received pursuant to a Capital
Reorganization that equals or exceeds the lesser of (i) the Exercisability
Value or (ii) the greater of (A) the Exercise Price compounded at an annual
rate of 30% for the period from April 3, 1998 to the end of the calendar month
immediately preceding the consummation of such Capital Reorganization or (B) a
per share amount equal to the IPO Offering Price compounded at an annual rate
of 20% for the period from the date on which a Qualified IPO is consummated to
the end of the calendar month immediately preceding the consummation of such
Capital Reorganization.
"Related Entity" means any direct or indirect subsidiary of the
Company now existing or hereafter formed or acquired, any entity that directly
or indirectly owns the outstanding capital stock of the Company, and any entity
that issues equity securities to or at the direction of the Holder upon
exercise of this Warrant.
"Sale of the Company" means a Capital Reorganization in which (i) the
stockholders of the Company receive cash consideration for each share of common
stock of the Company held by such stockholder that (when added to any cash
consideration attributable to any prior Capital Reorganization) equals or
exceeds the Qualifying Cash Consideration, (ii) a majority of directors of the
purchaser or surviving entity in such Capital Reorganization consists of
persons who are not Continuing Directors, and (iii) such purchaser or surviving
entity is not a member of the HMC Group. Appropriate per share adjustments
shall be made to take into account, on a comparable per share basis, any cash
consideration attributable to any prior Capital Reorganization.
"Securities Act" shall mean the Securities Act of 1933 and any similar
or successor federal statute, and the rules and regulations of the Securities
and Exchange Commission (or its successor) thereunder, all as the same shall be
in effect at the time.
"Stockholders Agreement" shall have the meaning set forth in Section
3.4.
"Vested Warrant Shares" shall have the meaning set forth in Section
3.1 (a).
"Warrant Agency" shall have the meaning set forth in Section 2.1.
"Warrant" shall have the meaning set forth in the first paragraph of
this Warrant. The term Warrants shall refer to the Warrants resulting in any
subdivision of this Warrant.
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<PAGE> 12
"Warrant Shares" shall have the meaning set forth in the first
paragraph of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed or telecopied, or mailed by certified or
registered mail, return receipt requested, postage pre-paid, to the addresses
specified on the signature pages hereto or, in any case, at such other address
or addresses as shall have been furnished in writing to the Company (in the
case of a Holder) or to the Holder (in the case of the Company) in accordance
with the provisions of this paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and Holders who collectively hold
Warrants to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding.
Any such amendment, modification or waiver effected pursuant to this
Section shall be binding upon the Holders, upon each future Holder thereof and
upon the Company. In the event of any such amendment, modification or waiver
the Company shall give prompt notice thereof to all Holders and, if
appropriate, notation thereof shall be made on all Warrants thereafter
surrendered for registration of transfer or exchange.
No notice or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Delaware.
6.4 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.5 Section Headings. The sections headings used herein are for
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.6 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
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<PAGE> 13
6.7 Employment Agreement. In the event of any conflict or
inconsistency between the terms and conditions of this Warrant and the terms
and conditions of the Employment Agreement, the terms and conditions of this
Warrant shall be controlling.
[Remainder of page intentionally left blank]
13
<PAGE> 14
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
CAPSTAR BROADCASTING CORPORATION
By: /s/ PAUL D. STONE
-----------------------------------
Name: Paul D. Stone
---------------------------------
Executive Vice President
---------------------------------
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
ACCEPTED AND AGREED TO:
/s/ WILLIAM S. BANOWSKY
- --------------------------------------
Name: William S. Banowsky, Jr.
Address: 600 Congress Avenue
Suite 1400
Austin, Texas 78701
<PAGE> 15
ANNEX A
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO CAPSTAR BROADCASTING CORPORATION:
The undersigned hereby irrevocably elects to exercise the attached
Warrant and to purchase thereunder _________ shares of Common Stock in payment
of an Exercise Price in an amount equal to $__________.
Please issue a certificate or certificates for such shares of Common
Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable upon
exercise of the attached Warrant, a new Warrant is to be issued in the name of
the undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
Dated: ___________________, ______
----------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee
appearing in the assignment
form below.
<PAGE> 16
ANNEX B
CERTIFICATION
The undersigned hereby certifies to Capstar Broadcasting Corporation
that he, she or it is:
a. an "accredited investor" as that term is defined in
Regulation D promulgated pursuant to the Securities
Act or any successor regulation, as such provisions
may be in effect on the date hereof, and is an
"accredited investor" pursuant to Section of such
provision; and
b. is knowledgeable, sophisticated and experienced in
business and financial matters and in securities
similar to the Common Stock; is aware of the
limitation on the transfer of the Common Stock
imposed by applicable securities laws and any
limitations on transfer imposed by contracts with the
Company or others; and has had access to, or been
furnished with, all information about the Common
Stock and the Company deemed necessary to conclude
that he, she or it has the ability to bear the
economic risk of the investment in the Common Stock
and to afford the complete loss of such investment.
IN WITNESS WHEREOF, the undersigned has executed this CERTIFICATION
this _____ day of ________________, _____.
For Individuals: For Entities:
- --------------------------------- -----------------------------------
Signature Printed Name of Entity
By:
- --------------------------------- --------------------------------
Printed Name Name:
-------------------------
Title:
------------------------
<PAGE> 17
ANNEX C
EMPLOYMENT AGREEMENT
<PAGE> 1
EXHIBIT 10.13
================================================================================
ASSET EXCHANGE AGREEMENT
Among
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES,
CHANCELLOR MEDIA LICENSEE COMPANY,
SFX TEXAS LIMITED PARTNERSHIP
and
SFXTX LIMITED PARTNERSHIP
Dated as of May 29, 1998
================================================================================
<PAGE> 2
TABLE OF CONTENTS
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SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. EXCHANGE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . 7
2.1. Exchange of Personal Property, Records and Owned Real Property . 7
2.2. Exchange of Real Property Leases. . . . . . . . . . . . . . . . 7
2.3. Exchange of Contracts. . . . . . . . . . . . . . . . . . . . . . 7
2.4. Exchange of Station Licenses. . . . . . . . . . . . . . . . . . 8
2.5. Exchange of Intellectual Property. . . . . . . . . . . . . . . . 8
2.6. Cash Payment. . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7. Allocation of Values. . . . . . . . . . . . . . . . . . . . . . 8
2.8. Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . 9
2.9. Assumption of Liabilities. . . . . . . . . . . . . . . . . . . . 11
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SFX AND
SFX LICENSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1. Organization and Standing. . . . . . . . . . . . . . . . . . . . 11
3.2. Authorization of Agreement; No Breach. . . . . . . . . . . . . . 12
3.3. Qualification as Assignor. . . . . . . . . . . . . . . . . . . . 12
3.4. Absence of Conflicting Orders. . . . . . . . . . . . . . . . . . 12
3.5. Absence of Litigation. . . . . . . . . . . . . . . . . . . . . . 12
3.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE> 3
<TABLE>
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ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF CHANCELLOR
AND CHANCELLOR LICENSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1. Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2. Post-Closing Covenants. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI. CONDITIONS TO THE PARTIES' OBLIGATION TO CLOSE . . . . . . . . . 15
6.1. Long Island/Jacksonville Exchange Agreement. . . . . . . . . . . 15
6.2. Capstar/SFX Merger. . . . . . . . . . . . . . . . . . . . . . . 15
6.3. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4. Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.2. Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3. Documents to be Delivered by Chancellor and Chancellor
Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4. Documents to be Delivered by SFX and SFX Licensee. . . . . . . . 17
ARTICLE VIII. TRANSFER TAXES; FEES AND EXPENSES . . . . . . . . . . . . . . . 18
8.1. Transfer Taxes and Similar Charges. . . . . . . . . . . . . . . 18
8.2. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1. Indemnification by Chancellor and Chancellor Licensee. . . . . . 19
9.2. Indemnification by SFX and SFX Licensee. . . . . . . . . . . . . 20
9.3. Survival of Covenants, Representations and Warranties. . . . . . 21
</TABLE>
ii
<PAGE> 4
<TABLE>
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9.4. Indemnification Procedures. . . . . . . . . . . . . . . . . . . 22
ARTICLE X. OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.1. Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.2. Benefit and Assignment. . . . . . . . . . . . . . . . . . . . . 23
10.3. No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . 23
10.4. Nature of Representations and Warranties: Entire Agreement,
Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . 23
10.5. Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . 24
10.6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.7. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.8. Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 25
10.9. Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . 26
</TABLE>
iii
<PAGE> 5
SCHEDULES
1.1 Houston Contracts
1.2 Houston Intellectual Property
1.3 Houston Personal Property
1.4 Houston Real Property Leases
1.5 Houston Station Licenses
1.6 Jacksonville Contracts
1.7 Jacksonville Intellectual Property
1.8 Jacksonville Owned Real Property
1.9 Jacksonville Personal Property
1.10 Jacksonville Real Property Leases
1.11 Jacksonville Station Licenses
iv
<PAGE> 6
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of May 29, 1998, among
Chancellor Media Corporation of Los Angeles, a Delaware corporation
("Chancellor"), Chancellor Media Licensee Company, a Delaware corporation
("Chancellor Licensee"), SFX Texas Limited Partnership, a Delaware limited
partnership ("SFX"), and SFXTX Limited Partnership, a Delaware limited
partnership ("SFX Licensee").
WHEREAS, Chancellor and Capstar Broadcasting Corporation, a
Delaware corporation ("Capstar") are parties to an agreement, dated February
20, 1998 (as such agreement may be amended from time to time, the "Master
Agreement"), under which Chancellor and Capstar agreed to exchange, or to cause
their subsidiaries to exchange, certain radio stations pursuant to the terms
and conditions contained in the Master Agreement;
WHEREAS, as part of the Master Agreement, the parties have agreed
to exchange the Jacksonville Stations (as defined below) plus cash in the
amount of Ninety Million Two Hundred and Fifty Thousand Dollars ($90,250,000),
for the Houston Station (as defined below);
WHEREAS, Chancellor owns all of the assets used in, held for use
in connection with or necessary for the conduct of the business or operations
of radio stations WAPE-FM and WFYV(FM) (the "Jacksonville Stations");
WHEREAS, Chancellor Licensee holds the licenses, permits and
authorizations issued by the Federal Communications Commission (the "FCC") for
the operation of the Jacksonville Stations;
WHEREAS, SFX owns all of the assets used in, held for use in
connection with or necessary for the conduct of the business or operations of
radio station KODA(FM), Houston (the "Houston Station");
WHEREAS, SFX Licensee holds the licenses, permits and
authorizations issued by the FCC for the operation of the Houston Station;
WHEREAS, Chancellor and Chancellor Licensee, on the one hand, and
SFX and SFX Licensee on the other, desire to contemporaneously exchange certain
property and assets used in, held for use in connection with or necessary for
the conduct of the business or operations of the Jacksonville Stations and the
Houston Station (collectively, the "Stations"); and
WHEREAS, Chancellor and Chancellor Licensee, on the one hand, and
SFX and SFX Licensee on the other, intend to transfer the Stations in a
transaction that will qualify to the maximum extent permissible as a multiple
asset "like-kind exchange" under Section 1031 of the Code (as defined below),
and each of Chancellor, Chancellor Licensee, SFX and SFX Licensee are willing
to take such steps as are necessary to enable the transactions contemplated
hereby to so qualify.
<PAGE> 7
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein, and of the mutual benefits to be
derived hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms
when used herein shall have the meanings assigned to them below.
1.1 "Accounts Receivable" shall mean the rights to cash
payments for the sale of advertising time by the Stations prior to the Cut-Off
Time.
1.2 "Affiliate" shall mean a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.
1.3 "Agreement" shall mean this Asset Exchange Agreement.
1.4 "Business Day" shall mean every day of the week excluding
Saturdays, Sundays and Federal holidays.
1.5 "Closing Date" shall mean the date of this Agreement.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as
amended, together with all regulations and rulings issued thereunder by any
governmental authority.
1.7 "Contracts" shall mean the Jacksonville Contracts and the
Houston Contracts.
1.8 "Cut-Off Time" shall mean 12:01 a.m., local time, on the
Closing Date.
1.9 "FCC Applications" shall mean the Jacksonville FCC
Applications and the Houston FCC Application.
1.10 "FCC Consents" shall mean the action by the FCC granting
each of the FCC Applications.
1.11 "Houston Assets" shall mean the Houston Contracts, the
Houston Intellectual Property, the Houston Personal Property, the Houston Real
Property Leases, the Houston Records and the Houston Station Licenses.
1.12 "Houston Contracts" shall mean all contracts, agreements,
purchase orders and leases of whatever nature, whether written or oral, of SFX,
used in, held for use in connection with or necessary for the conduct of the
business or operations of the Houston Station or the Houston Assets, including,
without limitation, employment contracts and other contracts,
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agreements, purchase orders and leases identified on Schedule 1.1, but
excluding the Houston Real Property Leases.
1.13 "Houston FCC Application" shall mean the application or
applications that SFX and Chancellor have filed with the FCC requesting its
consent to the assignment of the Houston Station Licenses from SFX to
Chancellor.
1.14 "Houston Intellectual Property" shall mean all SFX's
right, title and interest in and to the United States and foreign trademarks,
service marks, trade names, trade dress, copyrights, and similar rights,
including registrations and applications to register or renew the registration
of any of the foregoing, United States and foreign letters patent and patent
applications, and inventions, processes, designs, formulas, trade secrets,
jingles, know-how, confidential business and technical information, computer
software, data and documentation, and all similar intangible property rights,
tangible embodiments of any of the foregoing (in any medium including
electronic media), and licenses or permits to use any of the foregoing, used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Houston Station or the Houston Assets, including,
without limitation, all intellectual property identified on Schedule 1.2.
1.15 "Houston Personal Property" shall mean all equipment,
office furniture and fixtures, office materials and supplies, inventory, spare
parts and other tangible personal property owned or leased by SFX used in, held
for use in connection with or necessary for the conduct of the business or
operations of the Houston Station or the Houston Assets including, without
limitation, all of those items identified on Schedule 1.3.
1.16 "Houston Real Property Leases" shall mean all of SFX's
leases, subleases, licenses and occupancy agreements, including any amendments
thereto, relating to real property used in, held for use in connection with or
necessary for the conduct of the business or operations of the Houston Station
or the Houston Assets, including, without limitation, those items identified on
Schedule 1.4, together with all easements and other appurtenances for the
benefit thereof.
1.17 "Houston Records" shall mean all files, records (including
but not limited to copies of the general ledger and accounts receivable
records), logs, program materials, programs, lists, music libraries, public
inspection files that relate to the Houston Station and all proprietary
information and data, maps, plans, diagrams, blueprints, schematics and
technical drawings, engineering records, and FCC applications and filings
maintained with respect to the Houston Station pursuant to the rules and
regulations of the FCC.
1.18 "Houston Required Consents" shall mean any rights,
privileges and obligations under any Houston Contract identified as "Material"
on the Schedules to this Agreement, to be assigned pursuant to this Agreement,
that are not capable of being assigned without the consent, approval or waiver
of a third person or entity.
1.19 "Houston Station Licenses" shall mean the licenses,
permits and other authorizations issued by the FCC, the Federal Aviation
Administration (the "FAA") and any other
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<PAGE> 9
federal, state or local governmental or regulatory authorities in connection
with the business or operations of the Houston Station or the Houston Assets
including, without limitation, the licenses, permits and other authorizations
identified on Schedule 1.5.
1.20 "HSRA" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the regulations adopted thereunder.
1.21 "Jacksonville Assets" shall mean the Jacksonville
Contracts, the Jacksonville Intellectual Property, the Jacksonville Personal
Property, the Jacksonville Owned Real Property, the Jacksonville Real Property
Leases, the Jacksonville Records and the Jacksonville Station Licenses.
1.22 "Jacksonville Contracts" shall mean all contracts,
agreements, purchase orders and leases of whatever nature, whether written or
oral, of Chancellor, used in, held for use in connection with or necessary for
the conduct of the business or operations of the Jacksonville Stations or the
Jacksonville Assets, including, without limitation, employment contracts and
other contracts, agreements, purchase orders and leases identified on Schedule
1.6, but excluding the Jacksonville Real Property Leases.
1.23 "Jacksonville FCC Applications" shall mean the application
or applications that Chancellor and SFX have filed with the FCC requesting its
consent to the assignment of the Jacksonville Stations Licenses from Chancellor
to SFX.
1.24 "Jacksonville Intellectual Property" shall mean all of
Chancellor's right, title and interest in and to the United States and foreign
trademarks, service marks, trade names, trade dress, copyrights, and similar
rights, including registrations and applications to register or renew the
registration of any of the foregoing, United States and foreign letters patent
and patent applications, and inventions, processes, designs, formulas, trade
secrets, jingles, know-how, confidential business and technical information,
computer software, data and documentation, and all similar intangible property
rights, tangible embodiments of any of the foregoing (in any medium including
electronic media), and licenses or permits to use any of the foregoing, used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Jacksonville Stations or the Jacksonville Assets
including, without limitation, all intellectual property identified on Schedule
1.7.
1.25 "Jacksonville LMA" shall mean the Local Marketing
Agreement, dated July 1, 1996, as amended, between Chancellor Radio
Broadcasting Company ("CRBC") and SFX Broadcasting, Inc. ("SFX Broadcasting"),
providing for the sale of substantially all of the programming time on the
Jacksonville Stations from CRBC to SFX Broadcasting.
1.26 "Jacksonville Owned Real Property" shall mean all real
property and interests in real property owned by Chancellor and used in, held
for use in connection with, necessary for the conduct of or otherwise material
to, the business or operations of the Jacksonville Stations or the Jacksonville
Assets, together with all easements and other appurtenances for the benefit
thereof, all of which is identified on Schedule 1.8.
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<PAGE> 10
1.27 "Jacksonville Personal Property" shall mean all equipment,
office furniture and fixtures, office materials and supplies, inventory, spare
parts and other tangible personal property owned or leased by Chancellor used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Jacksonville Stations or the Jacksonville Assets,
including, without limitation, all of those items identified on Schedule 1.9.
1.28 "Jacksonville Real Property Leases" shall mean all of
Chancellor's leases, subleases, licenses and occupancy agreements, including
any amendments thereto, relating to real property used in, held for use in
connection with or necessary for the conduct of the business or operations of
the Jacksonville Stations or the Jacksonville Assets, including, without
limitation, those items identified on Schedule 1.10, together with all
easements and other appurtenances for the benefit thereof.
1.29 "Jacksonville Records" shall mean all files, records
(including but not limited to copies of the general ledger and accounts
receivable records), logs, program materials, programs, lists, music libraries,
public inspection files that relate solely to the Jacksonville Stations and all
proprietary information and data, maps, plans, diagrams, blueprints, schematics
and technical drawings, engineering records, and FCC applications and filings
maintained solely with respect to the Jacksonville Stations pursuant to the
rules and regulations of the FCC.
1.30 "Jacksonville Required Consents" shall mean any rights,
privileges and obligations under any Jacksonville Contract identified as
"Material" on the Schedules to this Agreement, to be assigned pursuant to this
Agreement, that are not capable of being assigned without the consent, approval
or waiver of a third person or entity.
1.31 "Jacksonville Station Licenses" shall mean the licenses,
permits and other authorizations issued by the FCC, the FAA and any other
federal, state or local governmental or regulatory authorities in connection
with the business or operations of the Jacksonville Stations or the
Jacksonville Assets including without limitation, the licenses, permits and
other authorizations identified on Schedule 1.11.
1.32 "Liens" shall mean all debts, liens, charges, security
interests, mortgages, pledges, judgments, trusts, adverse claims, liabilities,
encumbrances and other impairments of title.
1.33 "Permitted Liens" shall mean (i) statutory Liens for
current Taxes not yet due and payable, or being contested in good faith by
appropriate proceedings, (ii) mechanics', carriers', workers', repairers', and
other similar Liens imposed by law arising or incurred in the ordinary course
of business for obligations which are not overdue for a period of more than 90
days or which are being contested in good faith by appropriate proceedings,
(iii) in the case of leases of vehicles, rolling stock, and other personal
property, encumbrances, which do not, individually or in the aggregate,
materially impair the operation of the business at the facility at which such
leased equipment or other personal property is located, (iv) liens on leases of
real property arising from the provisions of such leases, including, in
relation to leased real property, any agreements and/or conditions imposed on
the issuance of land use permits, zoning, business licenses, use permits, or
other entitlements of various types issued by any governmental entity,
necessary or beneficial to the
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<PAGE> 11
continued use and occupancy of the Houston Assets or the Jacksonville Assets,
as applicable, or the continuation of the operation of any Station, (v) pledges
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation,
(vi) unviolated zoning regulations and restrictive covenants and easements of
record which do not detract from the value of the Houston Real Property or the
Jacksonville Real Property, as applicable, and do not materially and adversely
affect, impair or interfere with the use of any property affected thereby, and
(vii) public utility easements of record, in customary form, to serve the
Houston Real Property or the Jacksonville Real Property, as applicable.
1.34 "Person" shall mean an individual, corporation,
partnership, limited liability company, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
1.35 "Proration Items" shall mean all revenues, refunds,
deposits and prepaid expenses of the Stations and any power and utility
charges, business and license fees (including retroactive adjustments thereof),
sales and service charges, commissions, special assessments, prepaid rental
payments, real estate and other property taxes and assessments with respect to
real property, prepaid cash time sales agreements, program license fees,
broadcast rights fees, accrued vacation, unused sick leave and other similar
prepaid and deferred items and any other operating expenses incurred in the
ordinary course of business.
1.36 "Real Property Leases" shall mean the Jacksonville Real
Property Leases and the Houston Real Property Leases.
1.37 "Station Licenses" shall mean the Jacksonville Station
Licenses and the Houston Station Licenses.
1.38 "Tax" shall mean any federal, state, local or foreign
income, alternative, minimum, accumulated earnings, personal holding company,
franchise, unincorporated business, capital stock, profits, windfall profits,
gross receipts, sales, use, value added, transfer, registration, stamp,
premium, excise, customs duties, severance, environmental (including taxes
under Section 59A of the Code), real property, personal property, ad valorem,
occupancy, license, occupation, employment, payroll, social security,
disability, unemployment, workers' compensation, withholding, estimated or
similar tax, duty, fee, assessment or other governmental charge or deficiencies
thereof (including all interest and penalties thereon and additions thereto).
1.39 Additional Defined Terms. As used herein, the following
terms shall have the meanings defined in the introduction, recitals or section
indicated below:
<TABLE>
<S> <C>
Appraisals Section 2.7(a)
Capstar/SFX Merger Section 6.2
Cash Consideration Section 2.6
Chancellor Indemnitees Section 9.2(a)
Closing Section 7.1
FCC Recitals
</TABLE>
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<PAGE> 12
<TABLE>
<S> <C>
Final Proration Amount Section 7.2(b)
Houston Accounts Receivable Section 5.2(b)
Houston Schedule of Accounts Receivable Section 5.2(b)
Houston Station Recitals
Indemnified Party Section 9.4
Indemnifying Party Section 9.4
Jacksonville Stations Recitals
Long Island/Jacksonville Exchange Agreement Section 6.1(a)
Losses Section 9.1(a)
Master Agreement Recitals
Proration Amount Section 7.2(a)
Section 1031 Schedule Section 2.7(b)
SFX Indemnitees Section 9.1(a)
Stations Recitals
</TABLE>
ARTICLE II
EXCHANGE OF ASSETS
2.1 Exchange of Personal Property, Records and Owned Real
Property. Concurrently with the execution of this Agreement, (i) Chancellor
shall assign, transfer, convey and deliver or cause to be assigned,
transferred, conveyed or delivered to SFX the Jacksonville Personal Property,
the Jacksonville Records and the Jacksonville Owned Real Property and (ii) SFX
shall assign, transfer, convey and deliver or cause to be assigned,
transferred, conveyed or delivered to Chancellor the Houston Personal Property,
and the Houston Records.
2.2 Exchange of Real Property Leases. Concurrently with the
execution of this Agreement, (i) Chancellor shall assign or cause to be
assigned to SFX all of its rights, privileges and obligations under the
Jacksonville Real Property Leases and (ii) SFX shall assign or cause to be
assigned to Chancellor all of its rights, privileges and obligations under the
Houston Real Property Leases.
2.3 Exchange of Contracts. (a) Subject to (b) and (c) below,
concurrently with the execution of this Agreement, (i) Chancellor shall assign
or cause to be assigned to SFX all of its rights, privileges and obligations
under the Jacksonville Contracts and (ii) SFX shall assign or cause to be
assigned to Chancellor all of its rights, privileges and obligations under the
Houston Contracts.
(b) With respect to any consents, approvals and waivers
required for the assignment of the rights, privileges and obligations under the
Houston Contracts which have not been received prior to the date hereof, SFX
shall use commercially reasonable efforts to obtain such consents, approvals
and waivers after the Closing Date. During the period between the Closing Date
and the date that SFX obtains such consent, SFX shall act as Chancellor's agent
in connection with such contract and the parties shall cooperate to cause
Chancellor to receive the benefit of the rights and privileges under such
contract in exchange for performance by Chancellor of all of
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<PAGE> 13
SFX's obligations under such contract (including but not limited to the payment
to SFX of all amounts due under the contract on and after the Cut-Off Time for
services provided by SFX).
(c) With respect to any consents, approvals and waivers
required for the assignment of the rights, privileges and obligations under the
Jacksonville Contracts which have not been received prior to the date hereof,
Chancellor shall use commercially reasonable efforts to obtain such consents,
approvals and waivers after the Closing Date. During the period between the
Closing Date and the date that Chancellor obtains such consent, Chancellor
shall act as SFX's agent in connection with such contract and the parties shall
cooperate to cause SFX to receive the benefit of the rights and privileges
under such contract in exchange for performance by SFX of all of Chancellor's
obligations under such contract (including but not limited to the payment to
Chancellor of all amounts due under the contract on and after the Cut-Off Time
for services provided by Chancellor).
2.4 Exchange of Station Licenses. Concurrently with the
execution of this Agreement, (i) Chancellor and Chancellor Licensee shall
assign or cause to be assigned to SFX and SFX Licensee all of their right,
title and interest in and to the Jacksonville Station Licenses, and (ii) SFX
and SFX Licensee shall assign or cause to be assigned to Chancellor and
Chancellor Licensee all of their right, title and interest in and to the
Houston Station Licenses.
2.5 Exchange of Intellectual Property. Concurrently with the
execution of this Agreement, (i) Chancellor shall assign or cause to be
assigned to SFX the Jacksonville Intellectual Property and (ii) SFX shall
assign or cause to be assigned to Chancellor the Houston Intellectual Property.
2.6 Cash Payment. As additional consideration for the
exchange of the Houston Assets for the Jacksonville Assets, Chancellor is
paying an aggregate amount of Ninety Million Two Hundred and Fifty Thousand
Dollars ($90,250,000) to SFX at Closing (the "Cash Consideration") by wire
transfer of immediately available funds to a Qualified Intermediary as defined
in Treas. Reg. Section 1.1031(k)-1(g)(4).
2.7 Allocation of Values. (a) Chancellor, Chancellor
Licensee, SFX and SFX Licensee agree that the fair market value of all the
assets included in the Houston Assets is One Hundred and Forty-Three Million
Two Hundred and Fifty Thousand Dollars ($143,250,000) and that the fair market
value of all of the assets included in the Jacksonville Assets is Fifty-Three
Million Dollars ($53,000,000). The fair market value of the Houston Assets and
the Jacksonville Assets shall be allocated on the basis of appraisals (the
"Appraisals") to be prepared by Broadcast Investment Analysts, whose fees and
expenses shall be borne equally by Chancellor and SFX. The parties shall
direct Broadcast Investment Analysts to deliver the Appraisals promptly after
the execution hereof and to set forth in the Appraisals the fair market value
of each asset included in the Houston Assets and Jacksonville Assets.
(b) Within 30 days of the receipt of the Appraisals,
Chancellor and SFX shall prepare a schedule (the "Section 1031 Schedule") that
sets forth the "exchange groups" and "residual groups" (as each quoted term is
defined by Treas. Reg. 1.1031(j)), together with each
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asset included in the Houston and Jacksonville Assets that belongs to the
relevant exchange group or residual group. Chancellor and SFX shall cooperate
in good faith to resolve any issues relating to the Section 1031 Schedule in
order to agree on a single final Section 1031 Schedule.
(c) Chancellor and Chancellor Licensee, as necessary,
shall prepare IRS Form 8594 and IRS Form 8824 reflecting the fair market value
of the Assets they transferred and received as determined in accordance with
the above provisions and shall forward such forms to SFX and SFX Licensee
within thirty (30) days after receipt of the Appraisals. SFX and SFX Licensee,
as necessary, shall prepare IRS Form 8594 and IRS Form 8824 reflecting the fair
market value of the Assets it transferred and received as determined in
accordance with the above provisions and shall forward such forms to Chancellor
and Chancellor Licensee within thirty (30) days after receipt of the
Appraisals. Each of Chancellor, Chancellor Licensee, SFX and SFX Licensee, as
necessary, shall file with their respective federal income tax returns, for the
tax year in which the Closing occurs, IRS Form 8594 and IRS Form 8824 as
prepared in accordance with the foregoing. Each of Chancellor, Chancellor
Licensee, SFX and SFX Licensee, as necessary, shall deliver to the other
parties hereto a copy of the IRS Form 8594 and IRS Form 8824 as filed with
their respective federal income tax return within thirty days of the filing of
such return. Chancellor, Chancellor Licensee, SFX and SFX Licensee hereby
covenant and agree with each other that they will not take a position on any
income tax return that is in any way inconsistent with the terms of this
Section 2.7.
(d) Notwithstanding any other provision of this
Agreement, the provisions of this Section 2.7 shall survive the Closing without
limitation.
2.8 Excluded Assets. (a) Notwithstanding anything to the
contrary set forth herein, the Jacksonville Assets shall not include the
following:
(i) all books and records related solely to
internal corporate/partnership matters, any other books
and records not related to the business or operations of
the Jacksonville Stations, any books and records that
Chancellor is required by law to retain, all general
ledger and accounts receivable records, and all payables
records and invoices, provided that, at SFX's request,
Chancellor or Chancellor Licensee shall provide SFX, at
SFX's expense, with copies of such records covering the
period that Chancellor Licensee was licensee of the
Jacksonville Stations;
(ii) all books, records, and other intangible
assets related solely to Chancellor's and Chancellor
Licensee's internal corporate matters and not related to
the operation of the Jacksonville Stations;
(iii) all claims, rights, and interest in and to
any refunds for federal, state, or local franchise,
income, or other Taxes or fees of any nature whatsoever
relating to Taxes and fees for which Chancellor or
Chancellor Licensee is the responsible party;
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(iv) Chancellor's cash on hand as of the Cut-Off
Time and all other cash in any bank account of Chancellor;
any and all cash equivalents, certificates of deposit,
bonds, repurchase agreements, letters of credit,
marketable securities, or other similar items;
(v) all insurance policies;
(vi) all employee plans of Chancellor or
Chancellor Licensee related to the Jacksonville Stations,
including all trusts and other funding arrangements and
the assets and liabilities thereof;
(vii) the rights of Chancellor or Chancellor
Licensee under this Agreement or any other agreement
executed in connection herewith; and
(viii) the capital stock of any subsidiary of
Chancellor.
(b) Notwithstanding anything to the contrary set forth
herein, the Houston Assets shall not include the following:
(i) all Accounts Receivable;
(ii) all books and records related solely to
internal corporate/partnership matters, any other books
and records not related to the business or operations of
the Houston Stations, any books and records that SFX is
required by law to retain, all general ledger and accounts
receivable records, and all payables records and invoices,
provided that, at Chancellor's request, SFX or SFX
Licensee shall provide Chancellor, at Chancellor's
expense, with copies of such records covering the period
that SFX Licensee was licensee of the Houston Station;
(iii) all books, records, and other intangible
assets related solely to SFX's and SFX Licensee's internal
corporate matters and not related to the operation of the
Houston Station;
(iv) all claims, rights, and interest in and to
any refunds for federal, state, or local franchise,
income, or other Taxes or fees of any nature whatsoever
relating to Taxes and fees for which SFX or SFX Licensee
is the responsible party;
(v) SFX's cash on hand as of the Cut-Off Time
and all other cash in any bank account of SFX, any and all
cash equivalents,
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certificates of deposit, bonds, repurchase agreements,
letters of credit, marketable securities, or other similar
items;
(vi) all insurance policies;
(vii) all employee plans of SFX or SFX Licensee
related to the Houston Station, including all trusts and
other funding arrangements and the assets and liabilities
thereof;
(viii) the rights of SFX or SFX Licensee under this
Agreement or any other agreement executed in connection
herewith; and
(ix) the capital stock of any subsidiary of SFX.
2.9 Assumption of Liabilities. (a) Chancellor shall not
assume or undertake to pay, satisfy or discharge any liabilities, obligations,
commitments or responsibilities of SFX except for those arising under Houston
Contracts and Houston Real Property Leases assumed by Chancellor under this
Agreement and then, with respect to liabilities, obligations, commitments or
responsibilities under any such Houston Contract or Houston Real Property
Lease, only those liabilities, obligations, commitments and responsibilities
accruing after and relating exclusively to the operation of the Houston Station
after the date on which such Houston Contract or Houston Real Property Lease
was assumed by Chancellor.
(b) SFX shall not assume or undertake to pay, satisfy
or discharge any liabilities, obligations, commitments or responsibilities of
Chancellor except for those arising under Jacksonville Contracts or
Jacksonville Real Property Leases assumed by SFX under this Agreement and then,
with respect to liabilities, obligations, commitments or responsibilities under
any such Jacksonville Contract or Jacksonville Real Property Lease, only those
liabilities, obligations, commitments and responsibilities accruing after and
relating exclusively to the operation of the Jacksonville Stations after the
date on which such Jacksonville Contract or Jacksonville Real Property Lease
was assumed by SFX.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SFX AND SFX LICENSEE
SFX and SFX Licensee represent and warrant to Chancellor and
Chancellor Licensee as follows:
3.1 Organization and Standing. SFX and SFX Licensee are
limited partnerships duly formed, validly existing and in good standing under
the laws of the State of Delaware, are duly qualified to do business in, and
are in good standing in each jurisdiction where such qualification is necessary
except for those jurisdictions where the failure to be so qualified could not,
individually or in the aggregate, have a material adverse effect. SFX and SFX
Licensee have all necessary organizational power and authority to own, lease
and operate the Houston Assets and to carry on
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the business and operations of the Houston Station as now conducted and as
proposed to be conducted by it between the date hereof and the Closing Date.
3.2 Authorization of Agreement; No Breach. SFX and SFX
Licensee have all necessary organizational power and authority to execute,
deliver and perform this Agreement and such other agreements as are necessary
to consummate the transactions contemplated hereby. Subject to the receipt of
the consents and approvals required elsewhere herein, this Agreement
constitutes the legally valid and binding obligation of SFX and SFX Licensee,
enforceable against SFX and SFX Licensee in accordance with its terms, except
as such enforceability may be limited by bankruptcy and laws affecting the
enforcement of creditors' rights generally or equitable principles. Assuming
that said consents and approvals are obtained, neither such execution, delivery
and performance nor compliance by SFX and SFX Licensee with the terms and
provisions hereof will conflict with or result in a breach of any of the terms,
conditions or provisions of the organizational documents of SFX or SFX Licensee
or any material judgment, order injunction, decree, regulation or ruling of any
court or any other governmental authority to which SFX or SFX Licensee is
subject or any material agreement or contract to which SFX or SFX Licensee is a
party or to which SFX or SFX Licensee is subject, or constitute a material
default thereunder.
3.3 Qualification as Assignor. No facts exist which, under
the Communications Act of 1934, as amended, or the existing rules and
regulations of the FCC, would disqualify SFX or SFX Licensee as an assignor of
the FCC Licenses to be assigned to Chancellor Licensee hereunder.
3.4 Absence of Conflicting Orders. SFX and SFX Licensee are
not subject to any judgment, award, order, writ, injunction, arbitration
decision or decree which prohibits or prevents the performance of this
Agreement or the consummation of any transaction contemplated under this
Agreement, and there is no litigation, administrative action, arbitration,
proceeding or investigation pending, or to SFX's or SFX Licensee's knowledge,
threatened, against SFX, SFX Licensee or their Affiliates, or affecting SFX,
SFX Licensee or their Affiliates in any federal, state or local court or before
any administrative agency or arbitrator that would adversely affect SFX's or
SFX Licensee's ability to perform its obligations under this Agreement or would
prohibit the consummation of the transactions contemplated hereunder.
3.5 Absence of Litigation. There is no material action, suit,
investigation, claim, arbitration, litigation or similar proceeding, nor any
order, decree or judgment pending or, to SFX's or SFX Licensee's knowledge,
threatened, against SFX, SFX Licensee, the Houston Assets or the Houston
Station before any governmental authority.
3.6 Taxes. No event has occurred that could impose on
Chancellor any liability for any taxes, penalties or interest due or to become
due from SFX or SFX Licensee from any taxing authority.
3.7 Title. SFX Licensee is the valid and legal holder of the
Houston Station Licenses. SFX has a valid leasehold interest in all Houston
Leased Property. SFX has good and marketable title to the Houston Personal
Property and the Houston Intellectual Property, free and clear of any Liens,
except for Permitted Liens and Liens that will be removed at or prior to
Closing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
CHANCELLOR AND CHANCELLOR LICENSEE
Chancellor and Chancellor Licensee represent and warrant to SFX
and SFX Licensee as follows:
4.1 Title. Chancellor Licensee is the valid and legal holder
of the Jacksonville Station Licenses. Chancellor has good and marketable fee
simple title to all fee estates included in the Jacksonville Real Property and
good title to all other owned Jacksonville Real Property, in each case free and
clear of all Liens, except for Permitted Liens and Liens that will be removed
at or prior to Closing. Chancellor has a valid leasehold interest in the
Jacksonville Leased Property. Chancellor has good and marketable title to
Jacksonville Personal Property and the Jacksonville Intellectual Property, free
and clear of any Liens, except for Permitted Liens and Liens that will be
removed at or prior to Closing.
ARTICLE V
COVENANTS
SFX, SFX Licensee, Chancellor and Chancellor Licensee covenant
and agree that for the applicable periods set forth below, they shall act in
accordance with the following:
5.1 Employees. (a) As of the Closing Date, SFX is
terminating all of its employees at the Houston Station (other than those
employees that are employed pursuant to written employment contracts, which
employment contracts shall be assigned to Chancellor). SFX shall be liable for
all severance and other similar benefits to which such employees are entitled
as a result of their employment by SFX prior to the Closing Date under all
employee plans, applicable law or otherwise. Chancellor or Chancellor Licensee
may, but shall not be obligated to, offer employment to each of those employees
previously employed by SFX to be terminated as of the Closing Date. Such offer
of employment shall be under any terms and conditions that Chancellor or
Chancellor Licensee deems appropriate.
(b) As of the Closing Date, Chancellor is terminating
all of its employees at the Jacksonville Stations (other than those employees
that are employed pursuant to written employment contracts, which employment
contracts shall be assigned to SFX). Chancellor shall be liable for all
severance and other similar benefits to which such employees are entitled as a
result of their employment by Chancellor prior to the Closing Date under all
employee plans, applicable law or otherwise. SFX or SFX Licensee may, but
shall not be obligated to, offer employment to each of those employees
previously employed by Chancellor to be terminated as of the Closing Date.
Such offer of employment shall be under any terms and conditions that SFX or
SFX Licensee deems appropriate.
5.2 Post-Closing Covenants. (a) For a period of six years
after the Closing Date, each party agrees to make available to the other party
after Closing, upon request, any records, files, documents and correspondence
of the Stations, the Jacksonville Assets or the
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Houston Assets that are reasonably determined by such party to be necessary or
appropriate in connection with the filing of any report with a governmental
agency or the prosecution or defense of any claim, legal action, counterclaim,
suit, arbitration, governmental investigation, or other legal, administrative,
or tax proceeding, to which the requesting party is a party. The requesting
party shall reimburse the other party for any expenses incurred pursuant to
this Section 5.2, including reimbursement for the time of any of such party's
employees, including any employee of the Station that is the subject of such
request. Each party shall exercise its rights under this Section 5.2 so as not
to unreasonably interfere with or disrupt the operations of the other party.
For a period of six years after the Closing Date, at least 30 days prior to
discarding or destroying any books or records relating to the Jacksonville
Assets or the Houston Assets that are being exchanged hereunder, each party
shall give the other party notice of its intended action and an opportunity for
such other party to retain any of the books or records proposed to be discarded
or destroyed by such party.
(b) Within ten (10) days following the Closing, SFX
shall deliver to Chancellor a schedule of accounts receivable of the Houston
Station as of the Cut-Off Time (the "Houston Schedule of Accounts Receivable").
Chancellor agrees to collect for SFX all accounts receivable for broadcasts on
the Houston Station which occur prior to the Cut-Off Time (the "Houston
Accounts Receivable") as shown on the Houston Schedule of Accounts Receivable
for a period of ninety (90) days following the Closing. SFX will, at the
Closing, provide Chancellor a power of attorney or other required authorization
for the limited purpose of allowing Chancellor to endorse and deposit checks
and other instruments received in payment of such Houston Accounts Receivable.
All payments received by Chancellor from any customer whose name appears in the
Houston Schedule of Accounts Receivable and who is also a customer of
Chancellor shall be credited as payment of the account or invoice designated by
such customer. In the absence of any such designation by the customer,
payments shall be first credited to the oldest invoice which is not disputed by
said customer. Chancellor shall keep accurate records of the payment received
by it on such Houston Accounts Receivable and SFX shall have access at
reasonable times to Chancellor's records to verify such status of the Houston
Accounts Receivable. Chancellor shall promptly deposit amounts collected with
respect to the Houston Accounts Receivables into an account designated by SFX.
Within thirty (30) days after the last business day of each calendar month,
Chancellor shall remit to SFX a written accounting of amounts previously
collected by Chancellor on such Houston Accounts Receivable and an accounts
receivable aging report for those Houston Accounts Receivable still
outstanding. Any Houston Accounts Receivable that have not been collected
within such ninety (90) day period shall be returned to SFX, together with all
records in connection therewith including, but not limited to a final
accounting of the Houston Accounts Receivable still outstanding. Chancellor
shall not have the right to compromise, settle or adjust the amounts of any
such Houston Accounts Receivable without SFX's prior written consent. Except
to remit collected Houston Accounts Receivable in accordance herewith,
Chancellor shall have no liability or obligation to SFX with respect to the
collection of SFX's accounts and shall not be obligated to take any action to
collect such accounts.
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ARTICLE VI
CONDITIONS TO THE PARTIES' OBLIGATION TO CLOSE
Concurrently with, or prior to the execution and delivery of this
Agreement, the following actions shall have occurred:
6.1 Long Island/Jacksonville Exchange Agreement. The Asset
Exchange Agreement between SFX Broadcasting and Chancellor dated July 1, 1996,
as amended, providing for the exchange of SFX Broadcasting's Long Island radio
stations for the Jacksonville Stations (the "Long Island/Jacksonville Exchange
Agreement"), shall have been terminated without legal challenge by any party.
6.2 Capstar/SFX Merger. The merger between SFX Broadcasting
and an affiliate of Capstar (the "Capstar/SFX Merger") shall have closed,
either prior to, or contemporaneous with, the closing of this Agreement.
6.3 Litigation. No action, suit, proceeding, litigation or
investigation shall be pending or threatened by any governmental authority
which questions the validity or legality of this Agreement or any action taken
or to be taken in connection herewith or the consummation of the transactions
contemplated hereby. No injunction or other order issued by a court of
competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated by this Agreement shall be in effect.
6.4 Deliveries. Chancellor, Chancellor Licensee, SFX and SFX
Licensee shall have made all the deliveries set forth in Section 7.3 and
Section 7.4, respectively.
ARTICLE VII
CLOSING
7.1 Closing. Subject to the terms and conditions of this
Agreement, the closing of this transaction (the "Closing") shall take place on
the date hereof. The Closing shall be held at 10:00 a.m. in the offices of
Weil, Gotshal, & Manges LLP, 767 Fifth Avenue, New York, New York 10153, or at
such other place or time as the parties may agree.
7.2 Adjustments. (a) Within thirty (30) days after the
Closing Date, Chancellor and SFX shall make a good faith estimate of the
adjustment to the Cash Consideration customary in radio broadcast station
transactions for Proration Items (the "Proration Amount") to reflect that all
Proration Items of the Stations shall be apportioned between Chancellor and SFX
in accordance with the principles that (i) Chancellor, in the case of the
Jacksonville Stations, and SFX, in the case of the Houston Station shall
receive the benefit of all revenues, refunds, deposits and prepaid expenses,
and shall be responsible for all expenses, costs and liabilities allocable to
the conduct of the businesses or
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operations of such Stations, for the period prior to the Cut-Off Time, and (ii)
Chancellor, in the case of the Houston Station, and SFX, in the case of the
Jacksonville Stations, shall receive the benefit of all revenues, refunds,
deposits and prepaid expenses, and shall be responsible for all expenses, costs
and liabilities allocable to the conduct of the businesses or operations of
such Stations, from and after the Closing Date. In determining such
adjustments, adjustments shall be made for contracts for the sale of
advertising time for consideration other than cash ("Trade Agreements") only to
the extent of any Net Negative Trade Balance (as defined below) and only to the
extent that the Net Negative Trade Balance exceeds $50,000 on the Houston
Station, in the case of SFX, or $50,000 on the Jacksonville Stations, in the
case of Chancellor. "Net Negative Trade Balance" means the extent, if any, to
which the value (at current rates for time on the applicable Station as of the
Cut-Off Time) of unfulfilled obligations of the applicable Station under Trade
Agreements exceed the stated value of any consideration yet to be received by
such Station pursuant to such Trade Agreements. Determinations pursuant to
this Section 7.2 shall be made in accordance with generally accepted accounting
principles consistently applied for the period prior to the Closing Date.
(b) Within ninety (90) days after the Closing Date,
Chancellor and SFX shall deliver to each other in writing and in reasonable
detail a good faith final determination of the Proration Amount determined as
of the Closing Date under Section 7.2(a) (the "Final Proration Amount"). Each
of Chancellor and SFX shall provide the other with reasonable access to the
properties, books and records relating to the Stations for the purpose of
determining the Final Proration Amount. If Chancellor or SFX disagree with the
amounts of the Final Proration Amount, they shall so notify each other in
writing within thirty (30) days after the date of receipt of the Final
Proration Amount, specifying in detail any point of disagreement; provided
however, that if either Chancellor or SFX fails to notify the other party of
such disagreement within such thirty (30) day period, the determination of the
Final Proration Amounts shall be final, conclusive and binding on each of
Chancellor and SFX. After the receipt of any notice of disagreement, each
party shall negotiate in good faith to resolve any disagreements regarding the
Final Proration Amount. If any such disagreement cannot be resolved by the
parties within thirty (30) days after notice has been received of the existence
of such disagreement, the parties shall jointly select a nationally recognized
independent public accounting firm (which has not performed any services for
either Chancellor or SFX or any of their respective subsidiaries at any time
during the two (2) year period prior to the date such firm is selected (the
"Accounting Firm")), to review the determination of the Final Proration Amount
and to resolve as soon as possible all points of disagreement raised by either
party. All determinations made by the Accounting Firm with respect to the
Final Proration Amount shall be final, conclusive and binding on the parties.
The fees and expenses of the Accounting Firm incurred in connection with any
such determination shall be shared one-half by Chancellor and one-half by SFX.
Upon determination of the Final Proration Amount, the appropriate
party shall pay such amounts in cash, within two (2) business days following
the final determination of the Final Proration Amount. Any amounts paid
pursuant to this Section 7.2(b) shall be by wire transfer of immediately
available funds for credit to the recipient at a bank account identified by
such recipient in writing.
Chancellor and SFX agree that prior to the date of the final
determination of the Final Proration Amount pursuant to this Section 7.2(b) (by
the Accounting Firm or otherwise),
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neither party will destroy any records pertaining to, or necessary for, the
final determination of the Final Proration Amount.
7.3 Documents to be Delivered by Chancellor and Chancellor
Licensee. Concurrently with the execution and delivery of this Agreement,
Chancellor and Chancellor Licensee have delivered to SFX and SFX Licensee the
following:
(a) instruments of conveyance and transfer, in form and
substance reasonably satisfactory to counsel to SFX, effecting the assignment,
transfer, conveyance and delivery of the Jacksonville Assets to SFX and SFX
Licensee, including, but not limited to, the following:
(i) assignments of the Jacksonville Station
Licenses,
(ii) bills of sale for the Jacksonville Personal
Property;
(iii) assignments of Jacksonville Real Property
Leases and Jacksonville Contracts (including copies of all
Jacksonville Required Consents); and
(iv) assignment of the Jacksonville Intellectual
Property.
(b) certified resolutions of the board of directors and
shareholders (if required by law) of Chancellor and Chancellor Licensee
authorizing the execution, delivery and performance of this Agreement;
(c) a special warranty deed, in a form recordable in
the State of Florida, for each parcel of the Jacksonville Owned Real Property,
which deed shall convey insurable, fee simple title for that parcel free and
clear of all Liens, subject to standard title exceptions and survey exceptions,
none of which will impair or interfere with the continued use of such parcel as
such is currently used; and
(d) such other documents as may reasonably be requested
by counsel to SFX and SFX Licensee.
7.4 Documents to be Delivered by SFX and SFX Licensee.
Concurrently with the execution and delivery of this Agreement, SFX and SFX
Licensee have delivered to Chancellor and Chancellor Licensee the following:
(a) instruments of conveyance and transfer, in form and
substance reasonably satisfactory to counsel to Chancellor, effecting the
assignment, transfer, conveyance and delivery of the Houston Assets to
Chancellor and Chancellor Licensee including, but not limited to, the
following:
(i) assignments of the Houston Station Licenses;
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(ii) bills of sale for the Houston Personal
Property;
(iii) assignments of Houston Real Property Leases
and Houston Contracts (including copies of all Houston
Required Consents); and
(iv) assignment of the Houston Intellectual
Property.
(b) certified resolutions of the board of directors and
shareholders (if required by law) of SFX and SFX Licensee authorizing the
execution, delivery and performance of this Agreement;
(c) an affidavit to the effect that SFX is not a
"foreign person" within the meaning of Section 1445 of the Code;
(d) such other documents as may reasonably be requested
by counsel to Chancellor and Chancellor Licensee.
ARTICLE VIII
TRANSFER TAXES; FEES AND EXPENSES
8.1 Transfer Taxes and Similar Charges. All costs of
transferring the Jacksonville Assets and the Houston Assets in accordance with
this Agreement shall be allocated among the parties as follows:
(a) Chancellor shall pay any and all Taxes that may be
imposed by any taxing authority in the nature of sales or use Taxes as a result
of the transfer of the Jacksonville Assets from Chancellor to SFX. SFX shall
pay any and all Taxes that may be imposed by any taxing authority in the nature
of sales or use Taxes as a result of the transfer of the Houston Assets from
SFX to Chancellor; and
(b) all other costs and expenses of transferring the
Jacksonville Assets and the Houston Assets shall be divided equally between
Chancellor and SFX.
(c) As between Chancellor and SFX, the party that has
the primary responsibility under applicable law for filing any return in
respect of Taxes described in this Section 8.1 shall prepare such return,
subject to the other party's approval, which approval shall not be unreasonably
withheld, and timely file such return.
8.2 Expenses. Except as set forth in Section 8.1, each party
hereto shall be solely responsible for all costs and expenses incurred by it in
connection with the negotiation, preparation and performance of and compliance
with the terms of this Agreement.
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ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Chancellor and Chancellor Licensee.
(a) Chancellor and Chancellor Licensee agree to indemnify and hold harmless
SFX, SFX Licensee and their Affiliates and the officers, directors, partners,
employees, agents, advisers and representatives of SFX, SFX Licensee and their
Affiliates ("SFX Indemnitees") from and against, and pay or reimburse each SFX
Indemnitee for, any and all claims, liabilities, obligations, losses, fines,
costs, royalties, proceedings, deficiencies or damages (whether absolute,
accrued, conditional or otherwise and whether or not resulting from third party
claims), including out-of-pocket expenses and reasonable attorneys' and
accountants' fees incurred in connection with the investigation or defense
thereof or in asserting any of their respective rights hereunder (collectively,
"Losses"), resulting from or arising out of:
(i) any inaccuracy of any representation or
warranty made by Chancellor or Chancellor Licensee herein
or in any certificate, document or instrument delivered to
SFX or SFX Licensee pursuant to Section 7.3;
(ii) any failure of Chancellor or Chancellor
Licensee to perform any covenant or agreement hereunder;
(iii) any claims of third parties with respect to
the business and operations of the Jacksonville Stations
or the ownership of the Jacksonville Assets prior to the
commencement of the Jacksonville LMA not expressly assumed
by SFX or SFX Licensee under Section 2.9 hereof or under
the Jacksonville LMA;
(iv) any liabilities, obligations, commitments or
responsibilities of Chancellor or Chancellor Licensee not
expressly assumed by SFX or SFX Licensee under Section
2.9;
(v) any failure of Chancellor or Chancellor
Licensee to comply with applicable bulk sales laws (in
consideration of which indemnification obligation SFX and
SFX Licensee hereby waive compliance by Chancellor or
Chancellor Licensee with any applicable bulk sales laws);
(vi) any liabilities, obligations, commitments or
responsibilities of SFX or SFX Licensee expressly assumed
by Chancellor or Chancellor Licensee pursuant to Section
2.9; and
(vii) the ownership of the Houston Assets or the
operation of the Houston Station subsequent to the
Closing, except to the extent such Loss results from any
inaccuracy of any representation
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or warranty made by SFX or SFX Licensee herein or in any
certificate, document or instrument delivered to
Chancellor or Chancellor Licensee pursuant to Section 7.4
or any failure of SFX or SFX Licensee to perform any
covenant or agreement hereunder.
(b) Limitations on Indemnification.
(i) Notwithstanding anything in Section 9.1(a)
of this Agreement to the contrary, neither Chancellor nor
Chancellor Licensee shall be required to make any
indemnification payments until the aggregate amount of
Losses resulting from or arising out of the matters
referred to in Section 9.1(a) exceeds One Hundred Thousand
Dollars ($100,000) in the aggregate; provided that if the
aggregate amount of such Losses exceeds such amount,
Chancellor and Chancellor Licensee shall be required to
indemnify SFX Indemnitees for all Losses indemnifiable
under Section 9.1(a) without regard to such One Hundred
Thousand Dollar ($100,000) limitation.
(ii) Chancellor's and Chancellor Licensee's
obligations to make any indemnification payments of any
kind under Section 9.l(a) shall be limited to Two Million
Six Hundred Fifty Thousand Dollars ($2,650,000) in the
aggregate.
9.2 Indemnification by SFX and SFX Licensee. (a) General.
SFX and SFX Licensee agree to indemnify and hold harmless Chancellor,
Chancellor Licensee and their Affiliates and the officers, directors, partners,
employees, agents, advisers and representatives of Chancellor, Chancellor
Licensee and their Affiliates ("Chancellor Indemnitees") from and against, and
pay or reimburse each Chancellor Indemnitee for, any and all Losses resulting
from or arising out of:
(i) any inaccuracy in any representation or
warranty made by SFX or SFX Licensee herein or in any
certificate, document or instrument delivered to
Chancellor or Chancellor Licensee pursuant to Section 7.4;
(ii) any failure of SFX or SFX Licensee to
perform any covenant or agreement hereunder;
(iii) any claims of third parties with respect to
the business and operations of the Houston Station or the
ownership of the Houston Assets prior to the Closing not
expressly assumed by Chancellor or Chancellor Licensee
under Section 2.9;
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(iv) any liabilities, obligations, commitments or
responsibilities of SFX or SFX Licensee not expressly
assumed by Chancellor or Chancellor Licensee under Section
2.9;
(v) any failure of SFX or SFX Licensee to comply
with applicable bulk sales laws (in consideration of which
indemnification obligation Chancellor and Chancellor
Licensee hereby waive compliance by SFX or SFX Licensee
with any applicable bulk sales laws);
(vi) any liabilities, obligations, commitments or
responsibilities of Chancellor or Chancellor Licensee
expressly assumed by SFX or SFX Licensee pursuant to
Section 2.9; and
(vii) the ownership of the Jacksonville Assets or
the operation of the Jacksonville Stations subsequent to
the Closing, except to the extent such Loss results from
any inaccuracy of any representation or warranty made by
Chancellor or Chancellor Licensee herein or in any
certificate, document or instrument delivered to SFX or
SFX Licensee pursuant to Section 7.3 or any failure of
Chancellor or Chancellor Licensee to perform any covenant
or agreement hereunder.
(b) Limitations on Indemnification.
(i) Notwithstanding anything in Section 9.2(a)
of this Agreement to the contrary, neither SFX nor SFX
Licensee shall not be required to make any indemnification
payments until the aggregate amount of Losses resulting
from or arising out of the matters referred to in Section
9.2(a) exceeds One Hundred Thousand Dollars ($100,000);
provided that if the aggregate amount of such Losses
exceeds such amount, SFX and SFX Licensee shall be
required to indemnify Chancellor Indemnitees for all
Losses indemnifiable under Section 9.2(a) without regard
to such One Hundred Thousand Dollar ($100,000) limitation.
(ii) SFX's and SFX Licensee's obligation to make
any indemnification payments of any kind under Section
9.2(a) shall be limited to Seven Million One Hundred Sixty
Two Thousand Five Hundred Dollars ($7,162,500) in the
aggregate.
9.3 Survival of Covenants, Representations and Warranties.
The provisions hereof, which by their terms are to be performed and observed
after the Closing Date, and the several representations, warranties,
indemnities and agreements of Chancellor, Chancellor Licensee, SFX and SFX
Licensee herein contained shall survive the Closing Date hereunder for
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eighteen months following the Closing Date, provided, that notwithstanding the
foregoing, the representations and warranties set forth in (i) Section 3.7 and
4.1, to the extent relating to title to the applicable assets, shall survive
the Closing Date forever and (ii) Section 3.6 shall survive the Closing Date
for the applicable statutes of limitation period plus sixty (60) days. No
claim for indemnification may be made pursuant to this Article IX after the
applicable survival periods set forth in this Section 9.3 (except that all
claims which are properly asserted prior to the expiration of the applicable
survival periods set forth in this Section 9.3 shall survive with respect to
such claims until the final resolution thereof).
9.4 Indemnification Procedures. In the case of any claim
asserted by a third party against a party entitled to indemnification under
this Agreement (the "Indemnified Party"), notice shall be given by the
Indemnified Party to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and the Indemnified
Party shall permit the Indemnifying Party (at the expense of such Indemnifying
Party) to assume the defense of any claim or any litigation resulting
therefrom, provided that (i) the counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be reasonably
satisfactory to the Indemnified Party, (ii) the Indemnified Party may
participate in such defense at such Indemnified Party's expense, and (iii) the
omission by any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its indemnification obligation under this
Agreement except to the extent that such omission results in a failure of
actual notice to the Indemnifying Party and such Indemnifying Party is
materially damaged as a result of such failure to give notice. Except with the
prior written consent of the Indemnified Party, no Indemnifying Party, in the
defense of any such claim or litigation, shall consent to entry of any judgment
or order, interim or otherwise, or enter into any settlement that provides for
injunctive or other nonmonetary relief affecting the Indemnified Party or that
does not include as an unconditional term thereof the giving by each claimant
or plaintiff to such Indemnified Party of a release from all liability with
respect to such claim or litigation. In the event that the Indemnified Party
shall in good faith determine that the conduct of the defense of any claim
subject to indemnification hereunder or any proposed settlement of any such
claim by the Indemnifying Party might be expected to affect adversely the
Indemnified Party's tax liability or the ability of the Indemnified Party to
conduct the business of the Station or Stations acquired by such Indemnified
Party hereunder or that the Indemnified Party may have available to it one or
more defenses or counterclaims that are inconsistent with one or more of those
that may be available to the Indemnifying Party in respect of such claim or any
litigation relating thereto, the Indemnified Party shall have the right at all
times to take over and assume control over the defense, settlement,
negotiations or litigation relating to any such claim at the sole cost of the
Indemnifying Party, provided that if the Indemnified Party does so take over
and assume control, the Indemnified Party shall not settle such claim or
litigation without the written consent of the Indemnifying Party, such consent
not to be unreasonably withheld. In the event that the Indemnifying Party does
not accept the defense of any matter as above provided, the Indemnified Party
shall have the full right to defend against any such claim or demand and shall
be entitled to settle or agree to pay in full such claim or demand.
Notwithstanding the foregoing, the Indemnifying Party shall still provide
indemnification to the Indemnified Party. In any event, the Indemnifying Party
and the Indemnified Party shall
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cooperate in the defense of any claim or litigation subject to this Section 9.3
and the records of each shall be available to the other with respect to such
defense.
ARTICLE X
OTHER PROVISIONS
10.1 Publicity. Except as required by applicable law or with
the other parties' express written consent, no party to this Agreement nor any
Affiliate of any party shall issue any press release or make any public
statement (oral or written) regarding the transactions contemplated by this
Agreement.
10.2 Benefit and Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. None of SFX, SFX Licensee, Chancellor or Chancellor
Licensee may assign this Agreement without the prior written consent of SFX, in
the case of any such assignment by Chancellor and Chancellor Licensee, or
Chancellor, in the case of any such assignment by SFX and SFX Licensee, except
that:
(a) SFX and SFX Licensee may assign their rights and
obligations under this Agreement to one or more Affiliates of SFX or SFX
Licensee, provided that any such assignment shall not relieve SFX or SFX
Licensee from any of its obligations under this Agreement and provided that any
such assignment does not delay the Closing Date. Furthermore, SFX may assign
its rights to receive the Cash Consideration under this Agreement to a
"qualified intermediary" as defined in Treas. Reg. Section 1.1031(k)-1(g)(4),
subject to all of Chancellor's and Chancellor Licensee's rights and obligations
hereunder, and shall promptly provide written notice of such assignment to all
parties hereto. Chancellor and Chancellor Licensee shall cooperate with all
reasonable requests of SFX and the "qualified intermediary" in arranging and
effecting the deferred like-kind exchange as one which qualifies under Section
1031 of the Code. Without limiting the generality of the foregoing, Chancellor
and Chancellor Licensee shall acknowledge in writing the notification by SFX of
the assignment to the "qualified intermediary" of its rights to receive the
Cash Consideration and other rights hereunder and Chancellor and Chancellor
Licensee hereby agree to pay the Cash Consideration to the "qualified
intermediary" rather than to SFX.
(b) Chancellor and Chancellor Licensee may assign their
rights and obligations under this Agreement to one or more Affiliates of
Chancellor or Chancellor Licensee, provided that any such assignment shall not
relieve Chancellor or Chancellor Licensee from any of their obligations under
this Agreement and provided that any such assignment does not delay the Closing
Date.
10.3 No Third-Party Beneficiaries. Nothing in this Agreement
shall confer any rights upon any person or entity other than the parties hereto
and their respective permitted successors and assigns.
10.4 Nature of Representations and Warranties: Entire
Agreement, Amendments, etc. (a) It is the explicit intent and understanding
of each of the parties hereto that neither party,
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nor any of its Affiliates, representatives or agents, is making any
representation or warranty whatsoever, oral or written, express or implied,
other than those set forth in Articles III and IV.
(b) The Master Agreement (and the agreements
contemplated thereby), the Jacksonville LMA, this Agreement and the exhibits
and schedules hereto constitute the entire agreement and understanding of the
parties hereto and supersede any and all prior agreements, arrangements and
understandings relating to the matters provided for herein or therein.
(c) No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any amendment, waiver or consent is sought.
10.5 Choice of Law. The construction and performance of this
Agreement shall be governed by the laws of the State of Texas without regard to
its principles of conflict of laws.
10.6 Notices. All notices, requests, demands, letters, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
delivered personally, (ii) mailed, certified or registered mail with postage
prepaid, (iii) sent by next-day or overnight mail or delivery or (iv) sent by
fax, as follows:
To Chancellor and Chancellor Licensee:
c/o Chancellor Media Corporation
433 East Las Colinas Blvd.
Suite 1130
Irving, Texas 75039
Attention: Jeffrey A. Marcus, President and Chief
Executive Officer
Fax: (972) 869-3671
Copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
Attention: Eric L. Bernthal, Esq.
Fax: (202) 637-2201
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To SFX and SFX Licensee:
c/o Capstar Broadcasting Corporation
600 Congress Avenue
Suite 1400
Austin, Texas 78705
Attention: R. Steven Hicks, President and Chief Executive
Officer
Fax: (512) 340-7890
Copies to:
c/o Capstar Broadcasting Corporation
600 Congress Avenue
Suite 1400
Austin, Texas 78705
Attention: William Banowsky, General Counsel
Fax: (512) 340-7863
and
Vinson & Elkins
2001 Ross Avenue
Suite 3700
Dallas, Texas 75201
Attention: Michael D. Wortley, Esq.
Fax: (214) 220-7716
or to such other person or address as any party shall specify by notice in
writing to the party entitled to notice. All such notices, requests, demands,
letters, waivers and other communications shall be deemed to have been received
(v) if by personal delivery, on the day such delivery, (vi) if by certified or
registered mail, on the third Business Day after the mailing thereof, (vii) if
by next-day or overnight mail or delivery, on the first Business day after the
mailing thereof or (viii) if by fax, on the day on which such fax was sent,
provided that the sender receive confirmation of such delivery.
10.7 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument.
10.8 Further Assurances. SFX and SFX Licensee shall at any
time and from time to time after the Closing execute and deliver to Chancellor
and Chancellor Licensee such further assignments, conveyances and other written
assurances as Chancellor and Chancellor Licensee may reasonably request in
order to vest and confirm in Chancellor and Chancellor Licensee (or their
permitted assignees) the title and rights to and in all of the Houston Assets
to be and intended to be assigned, transferred, conveyed and delivered
hereunder. Chancellor and Chancellor Licensee shall
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at any time and from time to time after the Closing execute and deliver to SFX
and SFX Licensee such further assignments, conveyances and other written
assurances as SFX and SFX Licensee may reasonably request in order to vest and
confirm in SFX and SFX Licensee (or their permitted assignees) the title and
rights to and in all of the Jacksonville Assets to be and intended to be
assigned, transferred, conveyed and delivered hereunder.
10.9 Arbitration. Chancellor, Chancellor Licensee, SFX and SFX
Licensee agree that any dispute arising out of or relating to this 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. Sections 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 10.9 shall not
apply with regard to any equitable remedies to which any party may be entitled
under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
By:
----------------------------
Name:
Title:
CHANCELLOR MEDIA LICENSEE COMPANY
By:
----------------------------
Name:
Title:
SFX TEXAS LIMITED PARTNERSHIP
By: SFX Operating GP, Inc.
By:
----------------------------
Name:
Title:
SFXTX LIMITED PARTNERSHIP
By: SFX GP, Inc.
By:
----------------------------
Name:
Title:
27
