<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 16, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
CHANCELLOR MEDIA CORPORATION
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 4832 75-2247099
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------------
(For Co-Registrants, please see "Table of Co-Registrants" on the following page)
<TABLE>
<S> <C>
SCOTT K. GINSBURG
CHIEF EXECUTIVE OFFICER
433 EAST LAS COLINAS BOULEVARD 433 EAST LAS COLINAS BOULEVARD
IRVING, TEXAS 75039 IRVING, TEXAS 75039
(972) 869-9020 (972) 869-9020
(Address, including zip code, and telephone number, (Name, address, including zip code, telephone
including area code, of registrant's principal number, including area code, of agent for service)
executive offices)
</TABLE>
---------------------
Copies to
JOHN D. WATSON, JR., ESQ.
MARK D. SPOTO, ESQ.
LATHAM & WATKINS
1001 PENNSYLVANIA AVENUE, N.W., SUITE 1300
WASHINGTON, D.C. 20004-2505
(202) 637-2200
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrants.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1)(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of Chancellor Media
Corporation (the "Company")(3)....
- ------------------------------------------------------------------------------------------------------------------------------
Guarantees of Co-Registrants of Debt
Securities(4).....................
- ------------------------------------------------------------------------------------------------------------------------------
Preferred Stock of the Company......
- ------------------------------------------------------------------------------------------------------------------------------
Common Stock of the Company.........
- ------------------------------------------------------------------------------------------------------------------------------
Warrants of the Company.............
- ------------------------------------------------------------------------------------------------------------------------------
Total(5)................... $1,000,000,000.00(5) 100% $1,000,000,000.00(5) $295,000
==============================================================================================================================
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. Rule 457(o) permits the registration fee to be
calculated on the basis of the maximum offering price of all of the
securities listed and, therefore, the table does not specify by each class
information as to the amount to be registered, the maximum offering price
per unit or the proposed maximum aggregate offering price.
(3) If any Debt Securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result in
an aggregate initial offering price not to exceed $1,000,000,000.00.
(4) No separate consideration will be received from purchasers of Debt
Securities with respect to these Guarantees and, therefore, no registration
fee is attributable to the Guarantees of the Debt Securities.
(5) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed $1,000,000,000
or the equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies. The aggregate amount of Common Stock
of the Company registered hereunder is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act. The securities
registered hereunder may be sold separately or as units with other
securities registered hereby.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
================================================================================
<PAGE> 2
TABLE OF CO-REGISTRANTS
<TABLE>
<CAPTION>
PRIMARY STANDARD IRS
STATE OR OTHER INDUSTRIAL EMPLOYER
JURISDICTION OF CLASSIFICATION IDENTIFICATION
NAME INCORPORATION CODE NUMBER NUMBER
---- --------------- ---------------- --------------
<S> <C> <C> <C>
Chancellor Mezzanine Holdings Corporation......... Delaware 4832 75-2728285
Chancellor Media Corporation of Los Angeles....... Delaware 4832 75-2451687
Chancellor Media Corporation of the Lone Star
State........................................... Delaware 4832 99-0248292
KZPS/KDGE License Corp............................ Delaware 4832 75-2449662
Chancellor Media Corporation of the Bay Area...... Delaware 4832 59-2312787
KIOI License Corp................................. Delaware 4832 75-2449654
Chancellor Media Corporation of Illinois.......... Delaware 4832 75-2490925
WRCX License Corp................................. Delaware 4832 75-2528716
Chancellor Media Corporation of Chicago AM........ Delaware 4832 59-2412802
WMVP-AM License Corp.............................. Delaware 4832 75-2449660
Chancellor Media Corporation of Dade County....... Delaware 4832 59-2312792
WVCG License Corp................................. Delaware 4832 75-2449668
Chancellor Media/Pyramid Corporation.............. Delaware 4832 04-3221315
Chancellor Media/Pyramid Holdings Corporation..... Delaware 4832 04-3221316
Broadcast Architecture, Inc....................... Massachusetts 4832 04-3096275
Chancellor Media Corporation of Massachusetts..... Delaware 4832 04-3216274
WJMN License Corp................................. Delaware 4832 04-3216272
Chancellor Media Corporation of the Nation's
Capital......................................... Delaware 4832 75-2699485
WWRC License Corp................................. Delaware 4832 75-2697127
Chancellor Media Partners Corporation............. Delaware 4832 13-3467127
Chancellor Media Corporation of Gotham............ Delaware 4832 36-3905992
Chancellor Media Corporation of New York.......... Delaware 4832 54-1475267
WYNY License Corp................................. Delaware 4832 36-3906005
Chancellor Media Corporation of Detroit........... Delaware 4832 36-2826680
WKQI/WDOZ/WNIC License Corp....................... Delaware 4832 36-3906004
Chancellor Media Corporation of Chicagoland....... Delaware 4832 36-3604824
WEJM/WEJM-FM/WVAZ License Corp.................... Delaware 4832 36-3905998
Chancellor Media Corporation of Charlotte......... Delaware 4832 62-1364794
WIOQ License Corp................................. Delaware 4832 36-3906002
Chancellor Media Corporation of Dallas............ Delaware 4832 75-2245927
KSKY License Corp................................. Delaware 4832 36-3906008
Chancellor Media Corporation of San Francisco..... Delaware 4832 75-2449639
KMEL License Corp................................. Delaware 4832 75-2449650
Chancellor Media Corporation of Houston........... Delaware 4832 75-2486583
Chancellor Media of Houston Limited Partnership... Delaware 4832 75-2486577
KLOL License Limited Partnership.................. Delaware 4832 75-2486580
Chancellor Media Corporation of Tiburon........... Delaware 4832 75-2674715
KKSF License Corp................................. Delaware 4832 75-2674717
Chancellor Media Corporation of Washington,
D.C............................................. Delaware 4832 75-243256
Chancellor Media Corporation of St. Louis......... Delaware 4832 75-2449637
WTOP License Limited Partnership.................. Delaware 4832 75-2528718
Chancellor Media Corporation of the Motor City.... Delaware 4832 75-2666019
WJLB License Corp................................. Delaware 4832 75-2666024
Chancellor Media Corporation of Michigan.......... Delaware 4832 75-2666017
WMXD License Corp................................. Delaware 4832 75-2666023
Chancellor Media/WAXQ Inc......................... Delaware 4832 13-3387794
WAXQ License Corp................................. Delaware 4832 N/A
Chancellor Media/WMZQ Inc......................... Delaware 4832 04-2981015
WMZQ License Corp................................. Delaware 4832 N/A
Chancellor Media Corporation of the Liberty
City............................................ Delaware 4832 75-2674728
WDAS (FM) License Corp............................ Delaware 4832 75-2674731
WDAS (AM) License Corp............................ Delaware 4832 75-2674729
</TABLE>
<PAGE> 3
TABLE OF CO-REGISTRANTS -- (CONTINUED)
<TABLE>
<CAPTION>
PRIMARY STANDARD IRS
STATE OR OTHER INDUSTRIAL EMPLOYER
JURISDICTION OF CLASSIFICATION IDENTIFICATION
NAME INCORPORATION CODE NUMBER NUMBER
---- --------------- ---------------- --------------
<S> <C> <C> <C>
Chancellor Media/Riverside Broadcasting Co.
Inc............................................. Delaware 4832 13-2688382
WLTW License Corp................................. Delaware 4832 N/A
Chancellor Media Corporation of the Great Lakes... Delaware 4832 75-2674722
WWWW/WDFN License Corp............................ Delaware 4832 75-2674723
Chancellor Media Corporation of the Capital
City............................................ Delaware 4832 75-2647157
WGAY License Corp................................. Delaware 4832 75-2647158
Chancellor Media Licensee Company................. Delaware 4832 75-2544625
Chancellor Media/Trefoil Communications, Inc...... Delaware 4832 95-3278846
Chancellor Media/Shamrock Broadcasting, Inc....... Delaware 4832 95-4068583
Chancellor Media/Shamrock Radio Licenses, Inc..... Delaware 4832 95-4501833
Chancellor Media/Shamrock Broadcasting of Texas,
Inc............................................. Texas 4832 71-0527506
Chancellor Media/Shamrock Broadcasting Licenses of
Denver, Inc..................................... Delaware 4832 75-2688376
Chancellor Media/KIBB Inc......................... Delaware 4832 13-3930133
Chancellor Media/KYSR Inc......................... Delaware 4832 13-3547704
Chancellor Media/WLIT Inc......................... Delaware 4832 13-3930134
Radio 100 L.L.C................................... Delaware 4832 N/A
Chancellor Media Corporation of Pennsylvania...... Delaware 4832 04-3216281
WJJZ License Corp................................. Delaware 4832 04-3216283
Chancellor Media Corporation of Miami............. Delaware 4832 04-3216285
WEDR License Corp................................. Delaware 4832 04-3216278
Chancellor Media Corporation of Boston............ Delaware 4832 04-3221317
WXKS (AM) License Corp............................ Delaware 4832 04-3221319
WXKS (FM) License Corp............................ Delaware 4832 04-3221318
Chancellor Media Corporation of the Windy City.... Delaware 4832 04-3221712
WNUA License Corp................................. Delaware 4832 04-3221714
Chancellor Media Corporation of Philadelphia...... Delaware 4832 04-3221716
Chancellor Media Corporation of the Keystone
State........................................... Delaware 4832 04-3221374
WYXR License Corp................................. Delaware 4832 04-3221718
WUSL License Corp................................. Delaware 4832 04-3221375
KKBT License Corp................................. Delaware 4832 75-2449648
Katz Media Group, Inc............................. Delaware 7319 13-3779269
Katz Media Corporation............................ Delaware 7319 13-3779266
Katz Cable Corporation............................ Delaware 7319 13-3814104
Seltel Inc........................................ Delaware 7319 06-0963166
The National Payroll Company, Inc................. Delaware 7319 13-3744365
Katz Communications, Inc.......................... Delaware 7319 13-0904500
Eastman Radio Sales, Inc.......................... Delaware 7319 13-3581043
Christal Radio Sales, Inc......................... Delaware 7319 13-2618663
Amcast Radio Sales, Inc........................... Delaware 7319 13-3406436
Katz Millennium Marketing, Inc.................... Delaware 7319 13-3894491
</TABLE>
<PAGE> 4
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 16, 1998
PROSPECTUS
$1,000,000,000
CHANCELLOR MEDIA CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
------------------------------
Chancellor Media Corporation, a Delaware corporation formerly known as
Evergreen Media Corporation (the "Company"), directly or through agents, dealers
or underwriters designated from time to time, may offer from time to time in one
or more series or issuances (i) its secured or unsecured debt securities
consisting of debentures, notes or other evidences of indebtedness (the "'Debt
Securities"), which may be either senior debt securities ("Senior Debt
Securities") senior subordinated debt securities (the "Senior Subordinated Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (ii) shares of its preferred stock, par value $.01 per share (the
"Preferred Stock"), (iii) shares of its common stock, par value $.01 per share
(the "Common Stock") or (iv) warrants to purchase Common Stock, Preferred Stock
or Debt Securities (the "Warrants"), with an aggregate public offering price of
up to $1,000,000,000.00 (or the equivalent if the securities are denominated in
foreign currency or foreign currency units). The Debt Securities may be issued
as exchangeable and/or convertible Debt Securities, exchangeable for or
convertible into shares of Common Stock or Preferred Stock. The Company's
payment obligations under any series of Debt Securities may be guaranteed by
certain of the Company's various direct or indirect wholly-owned subsidiaries
(each, a "Guarantor" and collectively, the "Guarantors"). The Preferred Stock
may be issued as exchangeable and/or convertible Preferred Stock, exchangeable
for or convertible into Debt Securities or shares of Common Stock. The Debt
Securities (including any Guarantees thereof), Preferred Stock, Common Stock and
Warrants (collectively, the "Offered Securities") may be offered, separately or
together, in one or more separate classes or series and in amounts, at prices
and on terms to be determined at the time of offering and to be set forth in one
or more supplements to this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, (i) in the case of Debt
Securities and Guarantees thereof, if any, the specific designation, aggregate
principal amount, designated currency (or currency unit), purchase price,
maturity, interest rate (or manner of calculation thereof), time of payment of
interest (if any), terms (if any) for the subordination, redemption, exchange or
conversion thereof, and any other specific terms of the Debt Securities, (ii) in
the case of Preferred Stock, the specific designation, number of shares,
liquidation preference, purchase price, dividend, voting, redemption, exchange
and conversion provisions and any other specific terms of the Preferred Stock,
(iii) in the case of Common Stock, the number of shares, purchase price and
terms of the offering and sale thereof and (iv) in the case of Warrants, the
specific designation, number, duration, purchase price, exercise price,
detachability and any other terms in connection with the offering, sale and
exercise of the Warrants, as well as the terms on which and the securities for
which such warrants may be exercised.
The Company's Common Stock is traded on The Nasdaq Stock Market under the
symbol "AMFM." Any Common Stock sold pursuant to a Prospectus Supplement may be
listed on The Nasdaq Stock Market. On January 15, 1998, the last reported sale
price of the Common Stock on The Nasdaq Stock Market was $35.125 per share. The
Company has not yet determined whether any of the other Offered Securities will
be listed on any exchange or over-the-counter market. If the Company decides to
seek listing of any such Offered Securities, the Prospectus Supplement relating
thereto will disclose such exchange or market. The applicable Prospectus
Supplement will also contain information, where applicable, about certain
material United States federal income tax considerations relating to the Offered
Securities covered by such Prospectus Supplement.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------
The Offered Securities may be offered to or through underwriters, dealers
or agents designated from time to time, as set forth in the applicable
Prospectus Supplement, and may be offered to other purchasers directly by the
Company. Certain terms of the offering and sale of Offered Securities,
including, where applicable, the names of any underwriters, dealers or agents,
any applicable commissions, discounts and other items constituting compensation
to such underwriters, dealers or agents, and the proceeds to the Company from
such sale, will be set forth in the accompanying Prospectus Supplement. The
Company reserves the sole right to accept, and together with its agents, from
time to time, to reject in whole or in part any proposed purchase of the Offered
Securities to be made directly or through agents. See "Plan of Distribution" for
possible indemnification arrangements for underwriters, dealers and agents.
No Offered Securities may be sold without delivery of the applicable
Prospectus Supplement describing the method and terms of the offering of the
Offered Securities.
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE> 5
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND THEREIN, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY OFFERED SECURITIES IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR
SUCH PERSON TO MAKE SUCH AN OFFERING OR SOLICITATION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL
UNDER ANY CIRCUMSTANCES IMPLY THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN OR IN ANY PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF OR OF SUCH PROSPECTUS SUPPLEMENT.
IN CONNECTION WITH THE OFFERING OF CERTAIN OFFERED SECURITIES, CERTAIN
PERSONS PARTICIPATING IN SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE, MAINTAIN OR OTHERWISE EFFECT THE MARKET PRICES OF SUCH
SECURITIES OR OTHER SECURITIES OF THE COMPANY AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE
NASDAQ NATIONAL MARKET, THE OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company and the Guarantors have filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act with respect to the Offered
Securities. As permitted by the rules and regulations of the Commission, this
Prospectus and any Prospectus Supplement omit certain information, exhibits and
undertakings contained in the Registration Statement. For further information
with respect to the Company, the Guarantors and the Offered Securities,
reference is made to the Registration Statement, including the exhibits thereto
and the financial statements, notes and schedules filed as a part thereof. Any
statements contained herein concerning provisions of any document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission are
not necessarily complete, and in each instance reference is made to the copy of
such document so filed. Each such statement is qualified in its entirety by such
reference.
The Company and certain of the Guarantors are subject to the informational
requirements of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith, file reports, proxy materials and
other information with the Commission. The reports, proxy materials and other
information filed by the Company and such Guarantors with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Regional Offices of the Commission at Seven World Trade Center, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such materials also can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates.
The Commission maintains a site on the World Wide Web that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of such site is
http://www.sec.gov. The Company's Common Stock is listed on The Nasdaq Stock
Market. Reports, proxy materials and other information concerning the Company
can also be inspected and copied at the office of The Nasdaq Stock Market, 1735
K Street, N.W., Washington, D.C. 20006-1500.
ii
<PAGE> 6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including documents incorporated by reference, contains
"forward-looking statements" within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such forward-looking statements involve
known and unknown risks, uncertainties and other important factors that could
cause the actual results, performance or achievements of the Company, or
industry results, to differ materially from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
risks, uncertainties and other important factors include, among others:
substantial leverage and the history of net losses; the necessity of
governmental approval for a number of transactions; certain risks associated
with the closing and integration of acquisitions; competition; government
regulation; general economic and business conditions; dependence on key
personnel; terms of the Company's indebtedness; and limitations on the ability
of the Company to pay dividends. These forward-looking statements speak only as
of the date of this Prospectus. The Company expressly disclaims any obligation
or undertaking to disseminate any updates or revisions to any forward-looking
statement contained herein to reflect any change in the Company's expectations
with regard thereto or any change in events, conditions or circumstances on
which any such statement is based.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission pursuant to
the Exchange Act are hereby incorporated by reference in this Prospectus:
1. Evergreen Media Corporation's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996;
2. Current Reports on Form 8-K filed under the name of Evergreen Media
Corporation dated February 16, 1997 and filed March 9, 1997, dated
April 1, 1997 and filed May 9, 1997, dated May 27, 1997 and filed
May 28, 1997, dated May 27, 1997 and filed May 29, 1997, dated May
30, 1997 and filed June 4, 1997, dated June 11, 1997 and filed June
12, 1997, dated June 16, 1997 and filed July 2, 1997, and dated
July 7, 1997 and filed July 31, 1997; Current Reports on Form 8-K
filed under the name of Chancellor Media Corporation and Chancellor
Media Corporation of Los Angeles, dated September 5, 1997 and filed
September 17, 1997, as amended on Form 8-K/A, and dated September
23, 1997 and filed September 29, 1997, and dated January 13, 1998
and filed January 13, 1998; and the Current Report on Form 8-K
filed under the name of Chancellor Media Corporation of Los
Angeles, dated December 22, 1997 and filed December 30, 1997;
3. Evergreen Media Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997; Evergreen Media Corporation's and
Evergreen Media Corporation of Los Angeles' Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997 and Chancellor Media
Corporation's and Chancellor Media Corporation of Los Angeles'
Quarterly Report on Form 10-Q for the quarter ended September 30,
1997, as amended on Form 10-Q/A;
4. Chancellor Broadcasting Company's and Chancellor Radio Broadcasting
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, as amended on Form 10-K/A;
5. Chancellor Broadcasting Company's and Chancellor Radio Broadcasting
Company's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997; and
6. Current Reports on Form 8-K filed by Chancellor Broadcasting
Company dated January 3, 1997 and filed January 7, 1997, dated
January 23, 1997 and filed February 6, 1997, as amended on Form
8-K/A dated April 29, 1997, dated February 13, 1997 and filed March
11, 1997, dated June 3, 1997 and filed June 4, 1997, dated June 18,
1997 and filed June 25, 1997, and dated July 2, 1997 and filed July
17, 1997; and Current Reports on Form 8-K filed by Chancellor Radio
Broadcasting Company dated January 3, 1997 and filed January 7,
1997, dated January 23, 1997
iii
<PAGE> 7
and filed February 6, 1997, dated February 13, 1997 and filed March
11, 1997, dated May 2, 1997 and filed May 13, 1997, dated June 18,
1997 and filed June 25, 1997, and dated July 2, 1997 and filed July
17, 1997.
All documents filed by the Company or the Guarantors pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made hereby shall be
deemed to be incorporated by reference in the Prospectus and made a part hereof
from the date of filing of such documents. Any statement contained in this
Prospectus or in any Prospectus Supplement or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus and any Prospectus Supplement to the
extent that a statement contained herein or in any other document subsequently
filed with the Commission which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or any Prospectus Supplement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any documents incorporated into
the Prospectus by reference (other than exhibits incorporated by reference into
such document). Requests for documents should be submitted to the Corporate
Secretary, Chancellor Media Corporation, 433 East Las Colinas Boulevard, Suite
1130, Irving, Texas 75039 (telephone (972) 869-9020).
iv
<PAGE> 8
THE COMPANY
The Company is a leading owner of radio broadcasting stations in the United
States. The radio stations currently owned by the Company are located
principally in the top 40 radio markets of the United States. The Company's
portfolio of radio stations is diversified in terms of format, target
demographics, geographic location and phase of development. Because of the size
and diversity of its station portfolio, the Company believes that it is not
unduly reliant on the performance of any one station or market. The Company also
believes that the diversity of its portfolio helps to insulate the Company from
downturns in specific markets and changes in musical tastes. The Company also
owns and operates Katz Media Group, Inc., a full service media representation
firm serving multiple types of electronic media, with leading market shares in
the representation of radio and television stations and cable television
systems. The Company has also recently formed The AMFM Radio Networks, a new
national radio network.
The Company's principal executive officers are located at 433 East Las
Colinas Boulevard, Suite 1130, Irving, Texas 75039, and its telephone number at
that location is (972) 869-9020.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include the repayment, refinancing,
redemption or repurchase of existing indebtedness or capital stock, working
capital, capital expenditures, acquisitions and investments. Additional
information on the use of net proceeds from the sale of Offered Securities
offered hereby may be set forth in the Prospectus Supplement relating to such
Offered Securities.
HOLDING COMPANY STRUCTURE
The Company is a holding company and its assets consist primarily of
investments in its subsidiaries. The Company's rights and the rights of its
creditors, including holders of Debt Securities, to participate in the
distribution of assets of any person in which the Company owns an equity
interest (including any subsidiary of the Company) upon such person's
liquidation or reorganization will be subject to prior claims of such person's
creditors, including trade creditors, except to the extent that the Company may
itself be a creditor with recognized claims against such person (in which case
the claims of the Company would still be subject to the prior claims of any
secured creditors or such person and of any holder of indebtedness of such
person that is senior to that held by the Company). Accordingly, the holder of
Debt Securities may be deemed to be effectively subordinated to such claims.
GENERAL DESCRIPTION OF OFFERED SECURITIES AND RISK FACTORS
The Company may offer shares of Common Stock, Preferred Stock, Debt
Securities or Warrants or any combination of the foregoing either individually
or as units consisting of one or more securities under this Prospectus.
CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES MAY INVOLVE A
HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH OFFERED SECURITIES.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby are to be issued under an indenture (the
"Indenture") to be executed by the Company, the Guarantors, if any, and a
trustee to be identified in the applicable Prospectus Supplement, as Trustee
(the "Trustee"). The terms of the Debt Securities will include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (the "TIA") as in effect on the date of the Indenture. The
Debt Securities will be subject to all such terms, and potential purchasers of
the Debt Securities are referred to the Indenture and the TIA for a statement
thereof. A copy of the proposed form of Indenture has been filed as an exhibit
to the Registration Statement.
The Company may offer under this Prospectus up to $1,000,000,000 aggregate
principal amount of Debt Securities, or if Debt Securities are issued at a
discount, or in a foreign currency or composite currency, such principal amount
as may be sold for an initial public offering price of up to $1,000,000,000.
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities will represent direct, unsecured obligations of the Company and will
rank equally with all other unsecured indebtedness of the Company.
The following statements relating to the Debt Securities and the Indenture
are summaries and do not purport to be complete. Such summaries may make use of
certain terms defined in the Indenture and are qualified in their entirety by
express reference to the Indenture. Certain other specific terms of any series
of Debt Securities will be described in the applicable Prospectus Supplement. To
the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement. As used in this "Description of Debt Securities," all
references to the "Company" shall mean Chancellor Media Corporation excluding,
unless the context otherwise required or as expressly stated, its subsidiaries.
GENERAL
The terms of each series of Debt Securities will be established by or
pursuant to a resolution of the Board of Directors of the Company and set forth
or determined in the manner provided in an Officers' Certificate or by a
supplemental indenture. The particular terms of each series of Debt Securities
will be described in a Prospectus Supplement relating to such series (including
any pricing supplement thereto).
The Debt Securities that may be offered under the Indenture are not limited
in aggregate principal amount. The Debt Securities may be issued in one or more
series with the same or various maturities, at par, at a premium, or at a
discount. The Prospectus Supplement (including any pricing supplement thereto),
will set forth the initial offering price, the aggregate principal amount and
the following terms of the Debt Securities in respect of which this Prospectus
is delivered:
(1) the title of such Debt Securities;
(2) whether such Debt Securities are Senior Debt Securities, Senior
Subordinated Debt Securities or Subordinated Debt Securities or any
combination thereof;
(3) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Debt Securities will be issued;
(4) any limit on the aggregate principal amount of such Debt
Securities;
(5) the date or dates on which principal on such Debt Securities will
be payable;
(6) the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including
any commodity, commodity index, stock exchange index or financial index) at
which such Debt Securities will bear interest, if any, the date or dates
from which such interest, if any, will commence and be payable and any
regular record date for the interest payable on the interest payment date;
(7) the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable;
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(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Debt Securities may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase the
Debt Securities in whole or in part pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof;
(10) the dates, if any, on which and the price or prices at which the
Debt Securities will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
(11) the denominations in which such Debt Securities may be issuable,
if other than denominations of $1,000 and any integral multiple thereof;
(12) whether the Debt Securities are to be issuable in the form of
Certificated Debt Securities (as defined below) or Global Debt Securities
(as defined below);
(13) the portion of principal amount of such Debt Securities that
shall be payable upon declaration of acceleration of the maturity date
thereof, if other than the principal amount thereof;
(14) the currency of denomination of such Debt Securities;
(15) the designation of the currency, currencies or currency units in
which payment of principal of, premium, if any, and interest, if any, on
such Debt Securities will be made;
(16) if payments of principal of, premium, if any, or interest, if
any, on the Debt Securities are to be made in one or more currencies or
currency units other than that or those in which such Debt Securities are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;
(17) the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on such Debt Securities will be
determined, if such amounts may be determined by reference to an index
based on a currency or currencies other than that in which the Debt
Securities are denominated or designated to be payable or by reference to a
commodity, commodity index, stock exchange index or financial index;
(18) the provisions, if any, relating to any security provided for
such Debt Securities;
(19) any addition to or change in the covenants described herein or in
the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect
to such Debt Securities;
(20) any Events of Default with respect to the Debt Securities, if not
otherwise set forth under "-- Events of Default";
(21) the terms and conditions, if any, upon which the Debt Securities
shall be exchanged for or converted into Common Stock or Preferred Stock;
(22) the terms and conditions, if any, upon which the Debt Securities
and any Guarantees thereof shall be subordinated in right of payment to
other indebtedness of The Company or any Guarantor;
(23) the form and terms of any Guarantee of the Debt Securities;
(24) any other terms of such Debt Securities, which may modify or
delete any provision of the Indenture insofar as it applies to such series;
and
(25) any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the Debt Securities.
Debt Securities may be issued that provide for an amount less than the
stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to the terms of the
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Indenture ("Discount Securities"). Federal income tax considerations and other
special considerations applicable to any such Discount Securities will be
described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest, if any, on any series or Debt
Securities is payable in a foreign currency or currencies or a foreign currency
unit or units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency or currencies or foreign currency unit or units will be
set forth in the applicable Prospectus Supplement.
EXCHANGE AND/OR CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock or Preferred Stock will be set
forth in the Prospectus Supplement relating thereto.
TRANSFER AND EXCHANGE
Each Debt Security will be represented by either one or more global
securities (each, a "Global Debt Security") registered in the name of The
Depository Trust Company, as Depository (the "Depository") or a nominee of the
Depository (each such Debt Security represented by a Global Debt Security being
herein referred to as a "Book-Entry Debt Security"), or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth under "-- Global Debt
Securities and Book Entry System" below, Book-Entry Debt Securities will not be
issuable in certificated form.
Certificated Debt Securities. Certificated Debt Securities may be
transferred or exchanged at the Trustee's office or paying agencies in
accordance with the terms of the Indenture. No service change will be made for
any transfer or exchange of Certificated Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The transfer of Certificated Debt Securities and the right to receive the
principal of, premium, if any, and interest, if any, on such Certificated Debt
Securities may be effected only by surrender of the certificate representing
such Certificated Debt Securities and either reissuance by the Company or the
Trustee of such certificate to the new Holder or the issuance by the Company or
the Trustee of a new certificate to the new Holder.
Global Debt Securities and Book Entry System. The procedures that the
Depository has indicated it intends to follow with respect to Book-Entry Debt
Securities are set forth below.
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to persons that have accounts with the Depository for the related Global
Debt Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Global Debt Security, the Depository will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the Book-Entry Debt Securities
represented by such Global Debt Security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such Book-Entry Debt
Securities. Ownership of Book-Entry Debt Securities will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by the Depository for the related Global Debt Security (with respect
to interests of participants) and on the records of participants (with respect
to interests of persons holding through participants). The laws of some states
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to own, transfer
or pledge beneficial interests in Book-Entry Debt Securities.
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So long as the Depository for a Global Debt Security, or its nominee, is
the registered owner of such Global Debt Security, the Depository or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
Book-Entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or Holders thereof under the Indenture.
Accordingly, each person beneficially owning Book-Entry Debt Securities must
rely on the procedures of the Depository for the related Global Debt Security
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a Holder
under the Indenture.
The Company understands, however, that under existing industry practice,
the Depository will authorize the persons on whose behalf it holds a Global Debt
Security to exercise certain rights of Holders of Debt Securities, and the
Indenture provides that the Company, the Guarantors, if any, the Trustee and
their respective agents will treat as the Holder of a Debt Security the persons
specified in a written statement of the Depository with respect to such Global
Debt Security for purposes of obtaining any consents or directions required to
be given by Holders of the Debt Securities pursuant to the Indenture.
Payments of principal of, premium, if any, and interest on Book-Entry Debt
Securities will be made to the Depository or its nominee, as the case may be, as
the registered Holder of the related Global Debt Security. None of the Company,
the Guarantors, if any, the Trustee or any other agent of the Company or agent
of the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such Global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depository, upon receipt of any payment of
principal of, premium, if any, or interest, if any, on a Global Debt Security,
will immediately credit participants' accounts with payments in amounts
proportionate to the respective amounts of Book-Entry Debt Securities held by
each such participant as shown on the records of such Depository. The Company
also expects that payments by participants to owners of beneficial interests in
Book-Entry Debt Securities held through such participants will be governed by
standing customer instructions and customary practices, as is now the case with
the securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such participants.
If the Depository is at any time unwilling or unable to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depository registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
Certificated Debt Securities in exchange for each Global Debt Security. In
addition, the Company may at any time and in its sole discretion determine not
to have the Book-Entry Debt Securities of any series represented by one or more
Global Debt Securities and, in such event, will issue Certificated Debt
Securities in exchange for the Global Debt Securities of such series. Global
Debt Securities will also be exchangeable by the Holders for Certificated Debt
Securities if an Event of Default with respect to the Book-Entry Debt Securities
represented by such Global Debt Securities has occurred and is continuing. Any
Certificated Debt Securities issued in exchange for a Global Debt Security will
be registered in such name or names as the Depository shall instruct the
Trustee. It is expected that such instructions will be based upon directions
received by the Depository from participants with respect to ownership of
Book-Entry Debt Securities relating to such Global Debt Security.
The foregoing information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
NO PROTECTION IN THE EVENT OF CHANGE OF CONTROL
Other than as described in the applicable Prospectus Supplement, there are
no covenants or other provisions in the Indenture providing for a put or
increased interest or otherwise that would afford holders of Debt Securities
additional protection in the event of a recapitalization transaction, a change
of control of the Company or a highly leveraged transaction.
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COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus Supplement,
the Debt Securities will not have the benefit of any covenants that limit or
restrict the Company's business or operations, the pledging of the Company's
assets or the incurrence of indebtedness of the Company.
With respect to any series of Senior Subordinated Debt Securities, the
Company will agree not to issue Debt which is, expressly by its terms,
subordinated in right of payment to any other Debt of the Company and which is
not expressly made pari passu with, or subordinate and junior in right of
payment to, the Senior Subordinated Debt Securities.
The applicable Prospectus Supplement will describe any material covenants
in respect of a series of Debt Securities. Other than the covenants of the
Company included in the Indenture as described above or as described in the
applicable Prospectus Supplement, there are no covenants or other provisions in
the Indenture providing for a put or increased interest or otherwise that would
afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
Person (a "successor Person") unless (i) the Company is the surviving
corporation or the successor Person (if other than the Company) is a
corporation, partnership, trust or other entity organized and validly existing
under the laws of the United States, any state thereof or the District of
Columbia and expressly assumes the Company's obligations under the Debt
Securities and under the Indenture, (ii) immediately prior to and after giving
effect to the transaction, no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing under the Indenture and (iii) certain other conditions are
met.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will be Events of Default under the Indenture with respect to Debt
Securities of any series: (a) default in the payment of any interest upon any
Debt Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days (unless the entire amount of such payment
is deposited by the Company with the Trustee or with a paying agent prior to the
expiration of such period of 30 days); (b) default in the payment of principal
of or premium, if any, on any Debt Security of that series when such payment
becomes due and payable, at maturity, upon redemption or otherwise; (c) default
in the deposit of any sinking fund payment, when and as due in respect of any
Debt Security of that series; (d) default in the performance or breach of any
other covenant or warranty of the Company in the Indenture (other than a
covenant or warranty that has been included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), which default
continues uncured for a period of 30 days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of that series as
provided in the Indenture; (e) certain events of bankruptcy, insolvency or
reorganization with respect to the Company and the Guarantors, if any; and (f)
any other Event of Default provided with respect to Debt Securities of that
series that is described in the Prospectus Supplement accompanying this
Prospectus. No Event of Default with respect to a particular series of Debt
Securities (except as to certain events in bankruptcy, insolvency or
reorganization with respect to the Company) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. The occurrence of
an Event of Default may constitute an event of default under the Company's bank
credit agreements in existence from time to time. In addition, the occurrence of
certain Events of Default or an acceleration under the Indenture may constitute
an event of default under certain other indebtedness and/or preferred stock of
the Company outstanding from time to time.
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of at least 25% in principal amount of the
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outstanding Debt Securities of that series may, by a notice in writing to the
Company (and to the Trustee if given by the Holders), declare to be due and
payable immediately the principal (or, if the Debt Securities of that series are
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of and accrued and unpaid interest, if any, on all
Debt Securities of that series. In the case of an Event of Default resulting
from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all
outstanding Debt Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of outstanding Debt Securities. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of a majority in principal amount of the outstanding
Debt Securities of that series may rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal and
interest, if any, with respect to Debt Securities of that series, have been
cured or waived as provided in the Indenture. For information as to waiver of
defaults, see the discussion set forth below under "-- Modification and Waiver."
Reference is made to the Prospectus Supplement relating to any series of Debt
Securities that are Discount Securities for the particular provisions relating
to acceleration of a portion of the principal amount of such Discount Securities
upon the occurrence of an Event of Default.
The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of outstanding Debt Securities, unless the Trustee receives indemnity
satisfactory to it against any loss, liability or expense. Subject to certain
rights of the Trustee, the Holders of a majority in principal amount of the
outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of that series.
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the Indenture
or for the appointment of a receiver or trustee, or for any remedy under the
Indenture, unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to Debt Securities of that
series and unless also the Holders of at least a majority in principal amount of
the outstanding Debt Securities of that series shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the outstanding Debt Securities of that series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. Notwithstanding the foregoing, the Holder of any Debt
Security will have an absolute and unconditional right to receive payment of the
principal of, premium, if any, and any interest on such Debt Security on or
after the due dates expressed in such Debt Security and to institute suit for
the enforcement of any such payment.
The Indenture requires the Company to furnish to the Trustee a statement as
to compliance with the Indenture. The Indenture provides that the Trustee may
withhold notice to the Holders of Debt Securities of any series of any Default
or Event of Default (except in payment on any Debt Securities of such series)
with respect to Debt Securities of such series if it in good faith determines
that withholding such notice is in the interest of the Holders of such Debt
Securities.
MODIFICATION AND WAIVER
Modifications to, and amendments of, the Indenture may be made by the
Company and the Trustee with the consent of the Holders of at least a majority
in principal amount of the outstanding Debt Securities of each series affected
by such modifications or amendments; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
outstanding Debt Security affected thereby: (a) reduce the amount of Debt
Securities whose Holders must consent to an amendment or waiver; (b) reduce the
rate of or change the time for payment of interest (including default interest)
on any Debt Security; (c) reduce the principal of or premium, if any, on or
change the fixed maturity of any Debt Security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or analogous
obligation with respect to any series of Debt Securities; (d) reduce the
principal amount of Discount
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Securities payable upon acceleration of the maturity thereof; (e) waive a
default in the payment of the principal of, premium, if any, or interest, if
any, on any Debt Security (except a rescission of acceleration of the Debt
Securities of any series by the Holders of at least a majority in aggregate
principal amount of the then outstanding Debt Securities of such series and a
waiver of the payment default that resulted from such acceleration); (f) make
the principal of or premium, if any, or interest, if any, on any Debt Security
payable in currency other than that stated in the Debt Security; (g) make any
change to certain provisions of the Indenture protecting the right of each
Holder of Debt Securities to receive payment of the principal of, premium, if
any, and interest, if any, on such Debt Securities on or after the due date
thereof or to institute suit for the enforcement of any such payment and to
waivers or amendments; or (h) waive a redemption payment with respect to any
Debt Security. The Company and the Trustee may amend the Indenture or the Debt
Securities without notice to or consent of any holder of a Debt Security: (i) to
cure any ambiguity, defect or inconsistency; (ii) to comply with the Indenture's
provisions regarding successor corporations; (iii) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA; (iv) to provide for Global Debt Securities in addition
to or in place of Certificated Debt Securities; (v) to add to, change or
eliminate any of the provisions of the Indenture in respect of one or more
series of Debt Securities, provided, however, that any such addition, change or
elimination (A) shall neither (1) apply to any Debt Security of any series
created prior to the execution of such amendment and entitled to the benefit of
such provision, nor (2) modify the rights of a holder of any such Debt Security
with respect to such provision, or (B) shall become effective only when there is
no outstanding Debt Security of any series created prior to such amendment and
entitled to the benefit of such provision; (vi) to make any change that does not
adversely affect in any material respect the interest of any holder; or (vii) to
establish additional series of Debt Securities as permitted by the Indenture.
The Holders of at least a majority in principal amount of the outstanding
Debt Securities of any series may, on behalf of the Holders of all Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with provisions of the Indenture other than certain
specified provisions. The Holders of a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of such series waive any past default under the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, premium, if any, or any interest, if any, on any
Debt Security of that series or in respect of a covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security of such series affected; provided, however, that the
Holders of a majority in principal amount of the outstanding Debt Securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted form such acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
Legal Defeasance. The Indenture provides that, unless otherwise provided by
the terms of the applicable series of Debt Securities, the Company may be
discharged from any and all obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
or, in the case of Debt Securities denominated in a single currency other than
U.S. Dollars, Foreign Government Obligations (as defined below), that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal (and premium, if any) and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
occur only if, among other things, the Company shall have delivered to the
Trustee an opinion of counsel stating that the Company has received from, or
there has been published by, the United States Internal Revenue Service a ruling
or, since the date of execution of the Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the Debt
Securities of such series will not recognize income, gain or
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loss for United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The Indenture provides that, unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, the Company may omit to comply with the
restrictive covenants, if any, set forth in the Indenture, as well as any
additional covenants or other provisions which may be set forth in the
applicable Prospectus Supplement, and any omission to comply with such covenants
will not constitute a Default or an Event of Default with respect to the Debt
Securities of such series ("covenant defeasance"). The conditions include: the
deposit with the trustee of money and/or U.S. Government Obligations or, in the
case of Debt Securities denominated in a single currency other than U.S.
Dollars, Foreign Government Obligations, that, through the payment of interest
and principal in respect thereof in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay and discharge each installment of
principal of, premium, if any, and interest, if any, on and any mandatory
sinking fund payments in respect of the Debt Securities of such series on the
stated maturity of such payments in accordance with the terms of the Indenture
and such Debt Securities; and the delivery to the Trustee of an opinion of
counsel to the effect that the Holders of the Debt Securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of such deposit and related covenant defeasance and will be
subject to United States federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit and
related covenant defeasance had not occurred.
Covenant Defeasance and Events of Default. In the event the Company
exercises its option to effect covenant defeasance with respect to any series of
Debt Securities and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and/or U.S. Government Obligations or Foreign Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities of
such series at the time of their stated maturity but may not be sufficient to
pay amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company shall
remain liable for such payments.
"Foreign Government Obligations" means, with respect to Debt Securities of
any series that are denominated in a currency other than U.S. Dollars, (i)
direct obligations of the government that issued or caused to be issued such
currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by or acting as
an agency or instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
GUARANTEES
The Company's payment obligation under any series of Debt Securities may be
guaranteed by one or more Guarantors. The terms of any such guarantee will be
set forth in the applicable Prospectus Supplement.
REGARDING THE TRUSTEE
The Trustee with respect to any series of Debt Securities will be
identified in the Prospectus Supplement relating to such Debt Securities. The
Indenture and provisions of the TIA incorporated by reference therein contain
certain limitations on the rights of the Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim, as security or
otherwise. The Trustee and its affiliates may engage in, and will be permitted
to continue to engage in, other transactions with the Company and its
affiliates, provided, however, that if it acquires any conflicting interest (as
defined in the TIA), it must eliminate such conflict or resign.
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<PAGE> 17
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee. The TIA and the Indenture provide that in case an Event of Default
shall occur (and be continuing), the Trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent man
in the conduct of his own affairs. Subject to such provision, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of the Debt Securities issued
thereunder, unless they have offered to the Trustee indemnity satisfactory to
it.
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<PAGE> 18
DESCRIPTION OF PREFERRED STOCK
Under the Amended and Restated Certificate of Incorporation of the Company
(the "Certificate of Incorporation"), shares of Preferred Stock may be issued
from time to time, in one or more classes or series, as authorized by the Board
of Directors, generally without the approval of the stockholders. Prior to
issuance of shares of each series, the Board of Directors is required by the
General Corporation Law of the State of Delaware (the "DGCL") and the
Certificate of Incorporation to adopt resolutions and file a Certificate of
Designation (the "Certificate of Designation") with the Secretary of State of
the State of Delaware, fixing for each such class or series the designations,
powers, preferences and rights of the shares of such class or series and the
qualifications, limitations or restrictions thereon, including, but not limited
to, dividend rights, dividend rate or rates, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences as are permitted by
the DGCL. The Board of Directors could authorize the issuance of shares of
Preferred Stock with terms and conditions which could have the effect of
discouraging a takeover or other transaction which holders of some, or a
majority, of such shares might believe to be in their best interests or in which
holders of some, or a majority, of such shares might receive a premium for their
shares over the then-market price of such shares.
Subject to limitations prescribed by the DGCL, the Certificate of
Incorporation and the Amended and Restated Bylaws of the Company (the "Bylaws"),
the Board of Directors is authorized to fix the number of shares constituting
each class or series of Preferred Stock and the designations and powers,
preferences and relative, participating, optional or other special rights,
including such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange,
and such other subjects or matters as may be fixed by resolution of the Board of
Directors or duly authorized committee thereof. The Preferred Stock offered
hereby will, when issued, be fully paid and nonassessable and will not have, or
be subject to, any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the class or
series of Preferred Stock being offered for the specific terms thereof,
including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the purchase price of such Preferred
Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) Whether dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which dividends on such Preferred Stock shall
accumulate;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provisions for a sinking fund, if any, for such Preferred
Stock;
(7) The provisions for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange or
market;
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company, including the
conversion price (or manner of calculation thereof) and conversion period;
(10) The terms and conditions, if applicable, upon which Preferred
Stock will be exchangeable into Debt Securities of the Company, including
the exchange price (or manner of calculation thereof) and exchange period;
(11) Voting rights, if any, of such Preferred Stock;
(12) Whether interests in such Preferred Stock will be represented by
depositary shares;
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<PAGE> 19
(13) A discussion of any material and/or special United States federal
income tax considerations applicable to such Preferred Stock;
(14) The relative ranking and preferences of such Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(15) Any limitations on issuance of any class or series of Preferred
Stock ranking senior to or on a parity with such series of Preferred Stock
as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company; and
(16) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company rank: (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities issued by
the Company the terms of which specifically provide that such equity securities
rank junior to such Preferred Stock with respect to dividend rights or rights
upon liquidation, dissolution or winding up of the Company; (ii) on a parity
with all equity securities issued by the Company that do not rank senior or
junior to the Preferred Stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company; and (iii) junior to all
equity securities issued by the Company the terms of which do not specifically
provide that such equity securities rank on a parity with or junior to the
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company (including any entity with which the
Company may be merged or consolidated or to which all or substantially all the
assets of the Company may be transferred or which transfers all or substantially
all of the assets of the Company). As used for these purposes, the term "equity
securities" does not include convertible debt securities.
DESCRIPTION OF COMMON STOCK
General
The Company's authorized common stock consists of 200,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock"), approximately
119,991,240 of which were issued and outstanding as of January 15, 1998 (after
giving effect to the Company's two-for-one common stock split effected in the
form of a stock dividend paid on January 12, 1998) and 75,000,000 shares of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
none of which were issued and outstanding as of January 15, 1998.
The shares of Common Stock currently outstanding are validly issued, fully
paid and nonassessable.
It is not contemplated that any shares of Class A Common Stock will be
issued at any time. The Certificate of Incorporation provides that the issuance
of any shares of Class A Common Stock will require the unanimous affirmative
vote of the Board of Directors of the Company. The Company presently expects
that the Board of Directors of the Company will submit a proposal at the 1998
annual meeting of stockholders in order to eliminate the authorized shares of
Class A Common Stock.
Dividends
Holders of shares of Common Stock and Class A Common Stock are entitled to
receive such dividends as may be declared by the Board of Directors of the
Company out of funds legally available for such purpose. The terms of the
currently outstanding indebtedness and preferred stock of the Company and
certain of its subsidiaries may restrict, directly or indirectly, the Company's
ability to pay cash dividends on the Common Stock and Class A Common Stock.
The Company has not declared or paid any dividends with respect to its
outstanding common stock in the past, and it is not anticipated that the Company
will pay any cash dividends on the Common Stock and Class A Common Stock in the
foreseeable future.
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<PAGE> 20
Voting Rights
Holders of shares of Common Stock and Class A Common Stock, each voting as
a separate class, shall be entitled to vote on all matters submitted to a vote
of the stockholders, except as otherwise provided by law. Each share of Common
Stock and Class A Common Stock is entitled to one vote per share. Holders of
Common Stock and Class A Common Stock are not entitled to cumulative votes in
the election of directors.
Under Delaware law, the affirmative vote of the holders of a majority of
the outstanding shares of any class of capital stock of the Company is required
to approve any amendment to the Certificate of Incorporation that would increase
or decrease the aggregate number of authorized shares of any class, increase or
decrease the par value of the shares of any class, or modify or change the
powers, preferences or special rights of the shares of any class so as to affect
such class adversely.
Liquidation Rights
Upon liquidation, dissolution, or winding-up of the Company, the holders of
Common Stock and Class A Common Stock are entitled to share ratably in all
assets available for distribution after payment in full of creditors and the
holders of preferred stock of the Company.
Change of Control Provisions
Certain provisions of the Certificate of Incorporation and Bylaws may have
the effect of preventing, discouraging or delaying any change of control of the
Company and may maintain the incumbency of the Board of Directors and
management. The authorization of 50,000,000 shares of preferred stock makes it
possible for the Board of Directors to issue preferred stock with voting or
other rights or preferences that could impede the success of any attempt to
effect a change of control of the Company. In addition, the Certificate of
Incorporation provides for three classes of directors serving for staggered
three-year terms. Under the DGCL, subject to certain inapplicable exceptions,
directors on a classified board may only be removed by shareholders for cause.
This provision could also impede the success of any attempt to effect a change
of control of the Company.
The Company is subject to Section 203 ("Section 203") of the DGCL. Section
203 prohibits a publicly-held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless: (i) prior to such date, the board of directors of the
corporation approves either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, or (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owns at least 85% of the
outstanding voting stock (excluding certain shares held by persons who are both
directors and officers of the corporation and certain employee stock plans) or
(iii) on or after the consummation date, the business combination is approved by
the board of directors and by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the interested stockholder. For
purposes of Section 203, a "business combination" includes, among other things,
a merger, asset sale or other transaction resulting in a financial benefit to
the interested stockholder, and an "interested stockholder" is generally a
person who, together with affiliates and associates, owns (or within three
years, owned) 15% or more of the corporation's voting stock.
Alien Ownership
The Certificate of Incorporation restricts the ownership and voting of the
Company's capital stock, including its Common Stock, in accordance with the
Communications Act of 1934, as amended, and the rules of the Federal
Communications Commission (the "FCC"), to prohibit ownership of more than 25% of
the Company's outstanding capital stock (or control of more than 25% of the
voting power it represents) by or for the account of aliens, foreign
governments, or non-U.S. corporations or corporations otherwise subject to
control by such persons or entities. The Certificate of Incorporation also
prohibits any transfer of the Company's capital stock that would cause the
Company to violate this prohibition. In addition, the Certificate of
Incorporation of the Company authorizes the Board of Directors of the Company to
adopt such provisions as its deems necessary to enforce these prohibitions.
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<PAGE> 21
Other Provisions
The holders of Common Stock and Class A Common Stock are not entitled to
preemptive or similar rights. The shares of Common Stock are not subject to
redemption or a sinking fund.
No single shareholder of the Company holds more than 50.0% of the combined
voting power of the Company. As a result, a holder of an "attributable" interest
in the Company may violate the FCC's multiple ownership rules or cross interest
rules if such holder also has an "attributable" interest (or, in some cases, a
"meaningful" nonattributable interest) in other television or radio stations, or
in daily newspapers, depending on the number and location of those radio or
television stations or daily newspapers. Such a stockholder may also be
restricted in the companies in which such stockholder may invest.
Transfer Agent
The Bank of New York serves as the Transfer Agent and Registrar for the
Common Stock.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Stock Warrants") or Common Stock
(the "Common Stock Warrants" and, collectively with the Debt Warrants and the
Preferred Stock Warrants, the "Warrants"). Warrants may be issued independently
or together with any Offered Securities and may be attached to or separate from
such Offered Securities. The Warrants are to be issued under warrant agreements
(each a "Warrant Agreement") to be entered into between the Company and a bank
or trust company, as warrant agent (the "Warrant Agent"), all as shall be set
forth in the Prospectus Supplement relating to the Warrants being offered
pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the Debt Warrant certificates representing such Debt Warrants, including the
following:
(1) the title for such Debt Warrants;
(2) the aggregate number of such Debt Warrants;
(3) the price or prices at which such Debt Warrants will be issued;
(4) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants, and the
procedures and conditions relating to the exercise of such Debt Warrants;
(5) the designation and terms of any related Debt Securities with
which such Debt Warrants are issued, and the number of such Debt Warrants
issued with each such security;
(6) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable;
(7) the principal amount of Debt Securities purchasable upon exercise
of each Debt Warrant, and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
(8) the date on which such right shall expire;
(9) the maximum or minimum number of such Debt Warrants which may be
exercised at any time;
(10) a discussion of the material United States federal income tax
considerations applicable to the exercise of such Debt Warrants; and
(11) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
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<PAGE> 22
Debt Warrant certificates will be exchangeable for new Debt Warrant
certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders of
the securities purchasable upon such exercise and will not be entitled to
payments of principal of (or premium, if any) or interest, if any, on the
securities purchasable upon such exercise.
OTHER WARRANTS
The applicable Prospectus Supplement will describe the following terms of
Preferred Stock Warrants or Common Stock Warrants in respect of which this
Prospectus is being delivered:
(1) the title of such Warrants;
(2) the securities for which such Warrants are exercisable;
(3) the price or prices at which such Warrants will be issued;
(4) the number of such Warrants issued with each share of Preferred
Stock or Common Stock;
(5) any provisions for adjustment of the number or amount of shares
of Preferred Stock or Common Stock receivable upon exercise of such
Warrants or the exercise price of such Warrants;
(6) if applicable, the date on and after which such Warrants and the
related Preferred Stock or Common Stock will be separately transferable;
(7) if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of such Warrants;
(8) any other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Warrants;
(9) the date on which the right to exercise such Warrants shall
commence, and the date on which such right shall expire; and
(10) the maximum or minimum number of such Warrants which may be
exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash such
principal amount of Debt Securities or shares of Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the Prospectus Supplement relating to the
Warrants offered thereby. After the close of business on the expiration date,
unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
Warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Debt
Securities or shares of Preferred Stock or Common Stock purchasable upon such
exercise. If less than all of the Warrants represented by such Warrant
certificate are exercised, a new Warrant certificate will be issued for the
remaining Warrants.
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<PAGE> 23
ERISA MATTERS
The Company and its subsidiaries may each be considered a "party in
interest" (within the meaning of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) or a "disqualified person" (within the meaning of
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")) with
respect to many employee benefit plans ("Plans") that are subject to ERISA. The
purchase of Offered Securities by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement arrangements and other
plans described in Section 4975(e)(1) of the Code) and with respect to which the
Company or any of its affiliates is a service provider (or otherwise is a party
in interest or a disqualified person) may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, unless such Offered
Securities are acquired pursuant to and in accordance with an applicable
exemption. Any pension or other employee benefit plan proposing to acquire any
Offered Securities should consult with its counsel.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratio of earnings to combined
fixed charges and preferred stock dividends on a historical basis for the
periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED ENDED
--------------------------------------------- SEPTEMBER 30, SEPTEMBER 30,
1992 1993 1994 1995 1996 1996 1997
------ ------- ------ ------- ------- ------------- -------------
(IN THOUSANDS EXCEPT RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Deficiency of earnings to
combined fixed charges and
preferred stock
dividends(1).............. $6,129 $28,066 $7,392 $13,089 $24,967 $26,590 $7,236
</TABLE>
- ---------------
(1) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs, preferred stock dividends of
subsidiaries and the component of rental expense believed by management to
be representative of the interest factor thereon.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges on a historical basis for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED ENDED
------------------------------------------ SEPTEMBER 30, SEPTEMBER 30,
1992 1993 1994 1995 1996 1996 1997
------ ------- ---- ------ ------- ------------- -------------
(IN THOUSANDS EXCEPT RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges(1)....... -- -- 1.0 -- -- -- 1.03
Deficiency of earnings to
fixed charges(1)....... $4,989 $20,749 $ -- $5,658 $19,090 $21,022 $ --
</TABLE>
- ---------------
(1) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs, preferred stock dividends of
subsidiaries and the component of rental expense believed by management to
be representative of the interest factor thereon.
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<PAGE> 24
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities being offered hereby: (i)
directly to purchasers, (ii) through agents, (iii) through dealers, (iv) through
underwriters or (v) through a combination of any such methods of sale.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions either: (i) at a fixed price or prices, which
may be changed, (ii) at market prices prevailing at the time of sale, (iii) at
prices related to such prevailing market prices or (iv) at negotiated prices.
Offers to purchase Offered Securities may be solicited directly by the
Company. Offers to purchase Offered Securities may also be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an "underwriter" as that term is defined in the Securities Act, may then
resell such Offered Securities to the public at varying prices to be determined
by such dealer at the time of resale.
If an underwriter is, or underwriters are, utilized in the sale, the
Company will execute an underwriting agreement with such underwriters at the
time of the sale to them, and the names of the underwriters will be set forth in
the Prospectus Supplement, which will be used by the underwriters to make
resales of the Offered Securities in respect of which this Prospectus is
delivered to the public. In connection with the sale of Offered Securities, such
underwriters may be deemed to have received compensation from the Company in the
form of underwriting discounts or commissions and may also receive commissions
from purchasers of Offered Securities for whom they may act as agents.
Underwriters may also sell Offered Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Any underwriting compensation paid by the Company
to underwriters in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with the Company, to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which they may be
required to make in respect thereof. Underwriters and agents may engage in
transactions with, or perform services for, the Company in the ordinary course
of business.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters, dealers, or other persons to solicit offers by certain
institutions to purchase Offered Securities pursuant to contracts providing for
payment and delivery on a future date or dates. Institutions into which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others. The obligations of any purchaser under any such contract will not be
subject to any conditions except that (a) the purchase of the Offered Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject and (b) if the Offered
Securities are also being sold to underwriters, the Company shall have sold to
such underwriters the Offered Securities not sold for delayed delivery. The
underwriters, dealers and such other persons will not have any responsibility in
respect to the validity or performance of such contracts. The Prospectus
Supplement relating to such contracts will set forth the price to be paid for
Offered Securities pursuant to such contracts, the commissions payable for
solicitation of such contracts and the date or dates in the future for delivery
of Offered Securities pursuant to such contracts.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under Regulation M of the Exchange Act.
Rule 104 permits stabilizing bids to purchase the underlying security so long as
the stabilizing bids do not exceed a specified maximum. The underwriters may
over-allot shares of the Common Stock, Preferred Stock or, to the extent
applicable, Warrants, in connection with an offering of Common Stock, Preferred
Stock or, to the extent applicable, Warrants, respectively, thereby creating a
short position in the underwriters' account. Syndicate covering transactions
involve purchases of Offered Securities in the open market after the
distribution has been completed in order to cover
17
<PAGE> 25
syndicate short positions. Stabilizing and syndicate covering transactions may
cause the price of Offered Securities to be higher than it would otherwise be in
the absence of such transactions. These transactions, if commenced, may be
discontinued at any time.
The anticipated date of delivery of Offered Securities will be set forth in
the applicable Prospectus Supplement relating to each offer.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Latham & Watkins, Washington, D.C. Eric L. Bernthal, a former director of the
Company, is a partner of Latham & Watkins and owns 5,000 shares of Common Stock
and options to purchase 25,000 shares of Common Stock.
EXPERTS
The consolidated financial statements of Evergreen Media Corporation and
subsidiaries, the combined financial statements of WMZQ Inc. and Viacom
Broadcasting East Inc., the financial statements of WDRQ Inc., the combined
financial statements of Riverside Broadcasting Co., Inc. and WAXQ Inc., the
financial statements of WLIT Inc., the combined financial statements of KYSR
Inc. and KIBB Inc., the financial statements of WDAS-AM/FM (station owned and
operated by Beasley FM Acquisition Corp.), and the financial statements of
KKSF-FM/KDFC-FM and AM (A Division of The Brown Organization) incorporated by
reference herein have been audited by KPMG Peat Marwick LLP, independent
certified public accountants, to the extent and for the periods indicated in
their reports thereon. Such financial statements are incorporated herein by
reference in reliance upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of Chancellor Broadcasting Company
and Subsidiaries and Chancellor Radio Broadcasting Company and Subsidiaries as
of December 31, 1996 and 1995 and for each of the three years in the period
ended December 31, 1996 incorporated by reference in this registration
statement, have been incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
The consolidated statements of operations, changes in common stockholders'
equity and cash flows of Trefoil Communications, Inc. and Subsidiaries for the
period January 1, 1996 through February 13, 1996 incorporated by reference in
this registration statement, have been incorporated herein in reliance on the
report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
The financial statements of Century Chicago Broadcasting, L.P. as of and
for the year ended December 31, 1996 incorporated by reference in this
Prospectus have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The combined financial statements of WJLB/WMXD, Detroit, as of December 31,
1996 and for the year then ended, incorporated by reference in this Prospectus,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein by
reference in reliance upon the authority of said firm as experts in giving said
report.
The financial statements of Trefoil Communications, Inc., as of and for the
years ended December 31, 1995 and 1994 incorporated by reference in this
Prospectus have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
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<PAGE> 26
======================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY (AS DEFINED HEREIN). THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY ANY SECURITY
OTHER THAN THE SECURITIES OFFERED BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES, BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE SUCH DATE.
------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information....................... ii
Special Note Regarding Forward-Looking
Statements................................ iii
Incorporation of Certain Documents by
Reference................................. iii
The Company................................. 1
Use of Proceeds............................. 1
Holding Company Structure................... 1
General Description of Offered Securities
and Risk Factors.......................... 1
Description of Debt Securities.............. 2
Description of Preferred Stock.............. 11
Description of Common Stock................. 12
Description of Warrants..................... 14
ERISA Matters............................... 16
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends............. 16
Ratio of Earnings to Fixed Charges.......... 16
Plan of Distribution........................ 17
Legal Matters............................... 18
Experts..................................... 18
</TABLE>
======================================================
======================================================
$1,000,000,000
CHANCELLOR MEDIA CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
---------------------------
PROSPECTUS
---------------------------
, 1998
======================================================
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate of the fees and expenses, other than
underwriting discounts and commissions, payable or reimbursable by the Company
in connection with the issuance and distribution of the Offered Securities.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee........................................ $ 295,000
Printing and engraving expenses............................. 600,000
Legal fees and expenses..................................... 400,000
Accounting fees and expenses................................ 200,000
Rating agency fees.......................................... 100,000
Transfer agent fees and expenses............................ 20,000
Fees and expenses of the Trustee............................ 25,000
Miscellaneous............................................... 500,000
----------
Total............................................. $2,140,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who is, or is threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or was
an officer or director of such corporation, or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation. Where an officer
or director is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which he actually and reasonably incurred in connection therewith.
Set forth below is a description of the Company's indemnification and
director liability provisions. This description is intended as a summary and is
qualified in its entirety by reference to the Company's Amended and Restated
Certificate of Incorporation.
Article Nine of the Amended and Restated Certificate of Incorporation (the
"Certificate") provides indemnification for every person who is or was a party
or is or was threatened to be made a party to any action suit, or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines and amounts paid in settlement actually and reasonable incurred
by him in connection with such action, suit or proceeding, to the full extent
permitted by applicable law.
Article Ten of the Certificate provides that no director of the Company
shall be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
II-1
<PAGE> 28
ITEM 16. EXHIBITS
A. Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1* -- Form of Underwriting Agreement.
3.1(a) -- Amended and Restated Certificate of Incorporation of
Chancellor Media
Corporation.
3.2(b) -- Amended and Restated Bylaws of Chancellor Media
Corporation.
4.1+ -- Form of Indenture.
4.2(c) -- Specimen Common Stock Certificate.
4.3* -- Certificate of Designation.
4.4* -- Form of Preferred Stock Certificate.
4.5* -- Form of Warrant Agreement.
4.6* -- Form of Warrant.
5.1+ -- Opinion of Latham & Watkins.
12.1+ -- Chancellor Media Corporation Computation of Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
12.2+ -- Chancellor Media Corporation Computation of Ratio of
Earnings to Fixed Charges.
23.1+ -- Consent of Latham & Watkins (included as part of their
opinion listed as Exhibit 5.1).
23.2+ -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.3+ -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.4+ -- Consent of Price Waterhouse LLP, independent accountants.
23.5+ -- Consent of Arthur Andersen LLP, independent accountants.
23.6+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.7+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.8+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.9+ -- Consent of Price Waterhouse LLP, independent accountants.
23.10+ -- Consent of Arthur Andersen LLP, independent accountants.
24.1 -- Powers of Attorney (included on signature page).
25.1** -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ---------------
* To be filed by amendment or by a Current Report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
+ Filed herewith.
(a) Incorporated by reference to Exhibit 3.1C to the Quarterly Report on Form
10-Q of Chancellor Media Corporation and Chancellor Media Corporation of Los
Angeles for the quarterly period ended September 30, 1997.
(b) Incorporated by reference to Exhibit 3.2B to the Quarterly Report on Form
10-Q of Chancellor Media Corporation and Chancellor Media Corporation of Los
Angeles for the quarterly period ended September 30, 1997.
(c) Incorporated by reference to Exhibit 4.12 to the Registration Statement on
Form S-4 (Reg. No. 333-32677) of Evergreen Media Corporation, dated August
1, 1997.
II-2
<PAGE> 29
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(j) The undersigned registrant hereby undertakes to file an application
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305 (b)(2) of the Act.
II-3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
and each of the co-registrants identified below certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, State of
Texas, on January 16, 1998.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEZZANINE
HOLDINGS CORPORATION
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
By: /s/ MATTHEW E. DEVINE
----------------------------------
Matthew E. Devine
Senior Vice President and
Chief Financial Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine and Scott K. Ginsburg as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendment (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ THOMAS O. HICKS Chairman of the Board January 16, 1998
- -----------------------------------------------------
Thomas O. Hicks
/s/ SCOTT K. GINSBURG President, Chief Executive January 16, 1998
- ----------------------------------------------------- Officer and Director
Scott K. Ginsburg (Principal Executive
Officer)
/s/ JAMES E. DE CASTRO Chief Operating Officer and January 16, 1998
- ----------------------------------------------------- Director
James E. de Castro
/s/ MATTHEW E. DEVINE Senior Vice President and January 16, 1998
- ----------------------------------------------------- Chief Financial Officer
Matthew E. Devine (Principal Financial Officer
and Principal Accounting
Officer)
/s/ THOMAS J. HODSON Director January 16, 1998
- -----------------------------------------------------
Thomas J. Hodson
/s/ PERRY J. LEWIS Director January 16, 1998
- -----------------------------------------------------
Perry J. Lewis
/s/ ERIC C. NEUMAN Director January 16, 1998
- -----------------------------------------------------
Eric C. Neuman
/s/ JOHN H. MASSEY Director January 16, 1998
- -----------------------------------------------------
John H. Massey
</TABLE>
II-4
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JEFFREY A. MARCUS Director January 16, 1998
- -----------------------------------------------------
Jeffrey A. Marcus
/s/ LAWRENCE D. STUART, JR. Director January 16, 1998
- -----------------------------------------------------
Lawrence D. Stuart, Jr.
/s/ STEVEN DINETZ Director January 16, 1998
- -----------------------------------------------------
Steven Dinetz
/s/ VERNON E. JORDAN, JR. Director January 16, 1998
- -----------------------------------------------------
Vernon E. Jordan, Jr.
</TABLE>
II-5
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
co-registrant listed on Attachment A hereto certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, State of
Texas, on January 16, 1998.
THE CO-REGISTRANTS LISTED ON
ATTACHMENT A HERETO
By: /s/ MATTHEW E. DEVINE
----------------------------------
Matthew E. Devine
Vice President
of Each Co-Registrant
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine and Scott K. Ginsburg as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendment (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ SCOTT K. GINSBURG Chief Executive Officer, January 16, 1998
- ----------------------------------------------------- President and Director of
Scott K. Ginsburg Each Co-Registrant
(Principal Executive Officer
of Each Co-Registrant listed
on Attachment A)
/s/ MATTHEW E. DEVINE Vice President of Each January 16, 1998
- ----------------------------------------------------- Co-Registrant (Principal
Matthew E. Devine Financial Officer and
Principal Accounting Officer
of Each Co-Registrant listed
on Attachment A)
</TABLE>
II-6
<PAGE> 33
ATTACHMENT A
<TABLE>
<CAPTION>
NAME
<S> <C> <C> <C>
Chancellor Media Corporation of the Lone Star
State
KZPS/KDGE License Corp.
Chancellor Media Corporation of the Bay Area
KIOI License Corp.
Chancellor Media Corporation of Illinois
WRCX License Corp.
Chancellor Media Corporation of Chicago AM
WMVP-AM License Corp.
Chancellor Media Corporation of Dade County
WVCG License Corp.
Chancellor Media/Pyramid Corporation
Chancellor Media/Pyramid Holdings Corporation
Broadcast Architecture, Inc.
Chancellor Media Corporation of Massachusetts
WJMN License Corp.
Chancellor Media Corporation of the Nation's
Capital
WWRC License Corp.
Chancellor Media Partners Corporation
Chancellor Media Corporation of Gotham
Chancellor Media Corporation of New York
WYNY License Corp.
Chancellor Media Corporation of Detroit
WKQI/WDOZ/WNIC License Corp.
Chancellor Media Corporation of Chicagoland
WEJM/WEJM-FM/WVAZ License Corp.
Chancellor Media Corporation of Charlotte
WIOQ License Corp.
Chancellor Media Corporation of Dallas
KSKY License Corp.
Chancellor Media Corporation of San Francisco
KMEL License Corp.
Chancellor Media Corporation of Houston
Chancellor Media of Houston Limited Partnership
(through its general partner, Chancellor Media
Corporation of Houston)
KLOL License Limited Partnership (through its
general partner, Chancellor Media Corporation of
Houston)
Chancellor Media Corporation of Tiburon
KKSF License Corp.
Chancellor Media Corporation of Washington, D.C.
Chancellor Media Corporation of St. Louis
WTOP License Limited Partnership (through its
general partner, Chancellor Media Corporation of
Washington, D.C.)
Chancellor Media Corporation of the Motor City
WJLB License Corp.
Chancellor Media Corporation of Michigan
WMXD License Corp.
Chancellor Media/WAXQ Inc.
WAXQ License Corp.
Chancellor Media/WMZQ Inc.
WMZQ License Corp.
</TABLE>
II-7
<PAGE> 34
ATTACHMENT A -- (CONTINUED)
<TABLE>
<CAPTION>
NAME
<S> <C> <C> <C>
Chancellor Media Corporation of the Liberty City
WDAS (FM) License Corp.
WDAS (AM) License Corp.
Chancellor Media/Riverside Broadcasting Co. Inc.
WLTW License Corp.
Chancellor Media Corporation of the Great Lakes
WWWW/WDFN License Corp.
Chancellor Media Corporation of the Capital City
WGAY License Corp.
Chancellor Media Licensee Company
Chancellor Media/Trefoil Communications, Inc.
Chancellor Media/Shamrock Broadcasting, Inc.
Chancellor Media/Shamrock Radio Licenses, Inc.
Chancellor Media/Shamrock Broadcasting of Texas,
Inc.
Chancellor Media/Shamrock Broadcasting Licenses of
Denver, Inc.
Chancellor Media/KIBB Inc.
Chancellor Media/KYSR Inc.
Chancellor Media/WLIT Inc.
Radio 100 L.L.C. (through its sole member,
Chancellor Media Corporation of Los Angeles)
Chancellor Media Corporation of Pennsylvania
WJJZ License Corp.
Chancellor Media Corporation of Miami
WEDR License Corp.
Chancellor Media Corporation of Boston
WXKS (AM) License Corp.
WXKS (FM) License Corp.
Chancellor Media Corporation of the Windy City
WNUA License Corp.
Chancellor Media Corporation of Philadelphia
Chancellor Media Corporation of the Keystone State
WYXR License Corp.
WUSL License Corp.
KKBT License Corp.
</TABLE>
II-8
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant identified below certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on January 16, 1998.
KATZ MEDIA GROUP, INC.
By: /s/ RICHARD E. VENDIG
----------------------------------
Richard E. Vendig
Senior Vice President, Chief
Financial and Administrative
Officer, Treasurer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine and Scott K. Ginsburg as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendment (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ THOMAS F. OLSON Chief Executive Officer, January 16, 1998
- ----------------------------------------------------- President and Director
Thomas F. Olson (Principal Executive
Officer)
/s/ RICHARD E. VENDIG Senior Vice President, Chief January 16, 1998
- ----------------------------------------------------- Financial and Administrative
Richard E. Vendig Officer, Treasurer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ SCOTT K. GINSBURG Director January 16, 1998
- -----------------------------------------------------
Scott K. Ginsburg
/s/ JAMES E. DE CASTRO Director January 16, 1998
- -----------------------------------------------------
James E. de Castro
/s/ MATTHEW E. DEVINE Director January 16, 1998
- -----------------------------------------------------
Matthew E. Devine
/s/ KENNETH J. O'KEEFE Director January 16, 1998
- -----------------------------------------------------
Kenneth J. O'Keefe
</TABLE>
II-9
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant identified below certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irving, State of Texas,
on January 16, 1998.
KATZ MEDIA CORPORATION
By: /s/ RICHARD E. VENDIG
----------------------------------
Richard E. Vendig
Senior Vice President, Chief
Financial and Administrative
Officer, Treasurer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine and Scott K. Ginsburg as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendment (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ THOMAS F. OLSON Chief Executive Officer, January 16, 1998
- ----------------------------------------------------- President and Director
Thomas F. Olson (Principal Executive
Officer)
/s/ RICHARD E. VENDIG Senior Vice President, Chief January 16, 1998
- ----------------------------------------------------- Financial and Administrative
Richard E. Vendig Officer, Treasurer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ SCOTT K. GINSBURG Director January 16, 1998
- -----------------------------------------------------
Scott K. Ginsburg
/s/ JAMES E. DE CASTRO Director January 16, 1998
- -----------------------------------------------------
James E. de Castro
/s/ MATTHEW E. DEVINE Director January 16, 1998
- -----------------------------------------------------
Matthew E. Devine
/s/ KENNETH J. O'KEEFE Director January 16, 1998
- -----------------------------------------------------
Kenneth J. O'Keefe
/s/ JAMES E. BELOYIANIS Director January 16, 1998
- -----------------------------------------------------
James E. Beloyianis
/s/ STUART O. OLDS Director January 16, 1998
- -----------------------------------------------------
Stuart O. Olds
</TABLE>
II-10
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
co-registrants listed on Attachment B hereto certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on January 16, 1998.
THE CO-REGISTRANTS LISTED ON
ATTACHMENT B HERETO.
By: /s/ RICHARD E. VENDIG
----------------------------------
Richard E. Vendig
Senior Vice President, Chief
Financial and Administrative
Officer, Treasurer of Each
Co-Registrant Listed on
Attachment B
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine and Scott K. Ginsburg as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendment (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES AND EXCHANGE ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ THOMAS F. OLSON Chief Executive Officer, January 16, 1998
- ----------------------------------------------------- President and Director
Thomas F. Olson (Principal Executive
Officer of Each
Co-Registrant Listed on
Attachment B)
/s/ RICHARD E. VENDIG Senior Vice President, Chief January 16, 1998
- ----------------------------------------------------- Financial and
Richard E. Vendig Administrative Officer,
Treasurer (Principal
Financial Officer and
Principal Accounting
Officer of Each
Co-Registrant Listed on
Attachment B)
/s/ SCOTT K. GINSBURG Director of Each January 16, 1998
- ----------------------------------------------------- Co-Registrant Listed on
Scott K. Ginsburg Attachment B
</TABLE>
II-11
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ JAMES E. DE CASTRO Director of Each January 16, 1998
- ----------------------------------------------------- Co-Registrant Listed on
James E. de Castro Attachment B
/s/ MATTHEW E. DEVINE Director of Each January 16, 1998
- ----------------------------------------------------- Co-Registrant Listed on
Matthew E. Devine Attachment B
/s/ KENNETH J. O'KEEFE Director of Each January 16, 1998
- ----------------------------------------------------- Co-Registrant Listed on
Kenneth J. O'Keefe Attachment B
</TABLE>
II-12
<PAGE> 39
ATTACHMENT B
<TABLE>
<CAPTION>
NAME
<S> <C>
Seltel, Inc.
The National Payroll Company, Inc.
Katz Cable Corporation
Katz Communications, Inc.
Christal Radio Sales, Inc.
Eastman Radio Sales, Inc.
Amcast Radio Sales, Inc.
Katz Millennium Marketing, Inc.
</TABLE>
II-13
<PAGE> 40
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1* -- Form of Underwriting Agreement.
3.1(a) -- Amended and Restated Certificate of Incorporation of
Chancellor Media Corporation.
3.2(b) -- Amended and Restated Bylaws of Chancellor Media
Corporation.
4.1+ -- Form of Indenture.
4.2(c) -- Specimen Common Stock Certificate.
4.3* -- Certificate of Designation.
4.4* -- Form of Preferred Stock Certificate.
4.5* -- Form of Warrant Agreement.
4.6* -- Form of Warrant.
5.1+ -- Opinion of Latham & Watkins.
12.1+ -- Chancellor Media Corporation Computation of Ratio of
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
12.2+ -- Chancellor Media Corporation Computation of Ratio of
Earnings to Fixed Charges.
23.1+ -- Consent of Latham & Watkins (included as part of their
opinion listed as Exhibit 5.1).
23.2+ -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.3+ -- Consent of KPMG Peat Marwick LLP, independent
accountants.
23.4+ -- Consent of Price Waterhouse LLP, independent accountants.
23.5+ -- Consent of Arthur Andersen LLP, independent accountants.
23.6+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.7+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.8+ -- Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.9+ -- Consent of Price Waterhouse LLP, independent accountants.
23.10+ -- Consent of Arthur Andersen LLP, independent accountants.
24.1 -- Powers of Attorney (included on signature page).
25.1** -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
* To be filed by amendment or by a Current Report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
+ Filed herewith.
(a) Incorporated by reference to Exhibit 3.1C to the Quarterly Report on Form
10-Q of Chancellor Media Corporation and Chancellor Media Corporation of
Los Angeles for the quarterly period ended September 30, 1997.
(b) Incorporated by reference to Exhibit 3.2B to the Quarterly Report on Form
10-Q of Chancellor Media Corporation and Chancellor Media Corporation of
Los Angeles for the quarterly period ended September 30, 1997.
(c) Incorporated by reference to Exhibit 4.12 to the Registration Statement on
Form S-4 (Reg. No. 333-32677) of Evergreen Media Corporation, dated August
1, 1997.
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
CHANCELLOR MEDIA CORPORATION
as Issuer
---------------------------------------
FORM OF
INDENTURE
Dated as of _________, 1998
---------------------------------------
------------------
as Trustee
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
Section 1.1. Definitions.................................................................................1
Section 1.2. Other Definitions...........................................................................6
Section 1.3. Incorporation by Reference of Trust Indenture Act...........................................6
Section 1.4. Rules of Construction.......................................................................6
ARTICLE II. THE SECURITIES.......................................................................................7
Section 2.1. Issuable in Series..........................................................................7
Section 2.2. Establishment of Terms of Series of Securities..............................................7
Section 2.3. Execution and Authentication...............................................................10
Section 2.4. Registrar and Paying Agent.................................................................11
Section 2.5. Paying Agent to Hold Money in Trust........................................................11
Section 2.6. Securityholder Lists.......................................................................12
Section 2.7. Transfer and Exchange......................................................................12
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities...........................................12
Section 2.9. Outstanding Securities.....................................................................13
Section 2.10. Treasury Securities.......................................................................14
Section 2.11. Temporary Securities......................................................................14
Section 2.12. Cancellation..............................................................................14
Section 2.13. Defaulted Interest........................................................................14
Section 2.14. Global Securities.........................................................................15
Section 2.15. CUSIP Numbers.............................................................................16
ARTICLE III. REDEMPTION.........................................................................................16
Section 3.1. Notice to Trustee..........................................................................16
Section 3.2. Selection of Securities to be Redeemed.....................................................16
Section 3.3. Notice of Redemption.......................................................................17
Section 3.4. Effect of Notice of Redemption.............................................................17
Section 3.5. Deposit of Redemption Price................................................................18
Section 3.6. Securities Redeemed in Part................................................................18
ARTICLE IV. COVENANTS...........................................................................................18
Section 4.1. Payment of Principal and Interest..........................................................18
Section 4.2. SEC Reports................................................................................18
Section 4.3. Compliance Certificate.....................................................................18
Section 4.4. Stay, Extension and Usury Laws.............................................................19
Section 4.5. Corporate Existence........................................................................19
Section 4.6. Taxes......................................................................................19
ARTICLE V. SUCCESSORS...........................................................................................19
Section 5.1. When Company May Merge, Etc................................................................19
Section 5.2. Successor Corporation Substituted..........................................................20
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VI. DEFAULTS AND REMEDIES...............................................................................20
Section 6.1. Events of Default..........................................................................20
Section 6.2. Acceleration of Maturity; Rescission and Annulment.........................................22
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee............................23
Section 6.4. Trustee May File Proofs of Claim...........................................................24
Section 6.5. Trustee May Enforce Claims Without Possession of Securities................................24
Section 6.6. Application of Money Collected.............................................................25
Section 6.7. Limitation on Suits........................................................................25
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest...........................26
Section 6.9. Restoration of Rights and Remedies.........................................................26
Section 6.10. Rights and Remedies Cumulative............................................................26
Section 6.11. Delay or Omission Not Waiver..............................................................26
Section 6.12. Control by Holders........................................................................26
Section 6.13. Waiver of Past Defaults...................................................................27
Section 6.14. Undertaking for Costs.....................................................................27
ARTICLE VII. TRUSTEE............................................................................................28
Section 7.1. Duties of Trustee..........................................................................28
Section 7.2. Rights of Trustee..........................................................................29
Section 7.3. Individual Rights of Trustee...............................................................30
Section 7.4. Trustee's Disclaimer.......................................................................30
Section 7.5. Notice of Defaults.........................................................................30
Section 7.6. Reports by Trustee to Holders..............................................................30
Section 7.7. Compensation and Indemnity.................................................................31
Section 7.8. Replacement of Trustee.....................................................................31
Section 7.9. Successor Trustee by Merger, etc...........................................................32
Section 7.10. Eligibility; Disqualification.............................................................32
Section 7.11. Preferential Collection of Claims Against Company.........................................33
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE............................................................33
Section 8.1. Satisfaction and Discharge of Indenture....................................................33
Section 8.2. Application of Trust Funds; Indemnification................................................34
Section 8.3. Legal Defeasance of Securities of any Series...............................................35
Section 8.4. Covenant Defeasance........................................................................36
Section 8.5. Repayment to Company.......................................................................37
ARTICLE IX. AMENDMENTS AND WAIVERS..............................................................................38
Section 9.1. Without Consent of Holders.................................................................38
Section 9.2. With Consent of Holders....................................................................38
Section 9.3. Limitations................................................................................39
Section 9.4. Compliance with Trust Indenture Act........................................................39
Section 9.5. Revocation and Effect of Consents..........................................................40
Section 9.6. Notation on or Exchange of Securities......................................................40
Section 9.7. Trustee Protected..........................................................................40
</TABLE>
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE X. MISCELLANEOUS........................................................................................40
Section 10.1. Trust Indenture Act Controls..............................................................40
Section 10.2. Notices...................................................................................41
Section 10.3. Communication by Holders with Other Holders...............................................41
Section 10.4. Certificate and Opinion as to Conditions Precedent........................................41
Section 10.5. Statements Required in Certificate or Opinion.............................................42
Section 10.6. Rules by Trustee and Agents...............................................................42
Section 10.7. Legal Holidays............................................................................42
Section 10.8. No Recourse Against Others................................................................42
Section 10.9. Counterparts..............................................................................43
Section 10.10. Governing Laws...........................................................................43
Section 10.11. No Adverse Interpretation of Other Agreements............................................43
Section 10.12. Successors...............................................................................43
Section 10.13. Severability.............................................................................43
Section 10.14. Table of Contents, Headings, Etc.........................................................43
Section 10.15. Securities in a Foreign Currency or in ECU...............................................43
Section 10.16. Judgment Currency........................................................................44
ARTICLE XI. SINKING FUNDS.......................................................................................45
Section 11.1. Applicability of Article..................................................................45
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.....................................45
Section 11.3. Redemption of Securities for Sinking Fund.................................................46
</TABLE>
<PAGE> 5
CHANCELLOR MEDIA CORPORATION
Cross-Reference Table
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
Section 310(a)(1) .......................................................................... 7.10
(a)(2) ........................................................................... 7.10
(a)(3) ........................................................................... Not Applicable
(a)(4) ........................................................................... Not Applicable
(a)(5) ........................................................................... 7.10
(b) ........................................................................... 7.10
Section 311(a) ........................................................................... 7.11
(b) ........................................................................... 7.11
(c) ........................................................................... Not Applicable
Section 312(a) ........................................................................... 2.6
(b) ........................................................................... 10.3
(c) ........................................................................... 10.3
Section 313(a) ........................................................................... 7.6
(b)(1) ........................................................................... 7.6
(b)(2) ........................................................................... 7.6
(c)(1) ........................................................................... 7.6
(d) ........................................................................... 7.6
Section 314(a) ........................................................................... 4.2, 10.5
(b) ........................................................................... Not Applicable
(c)(1) ........................................................................... 10.4
(c)(2) ........................................................................... 10.4
(c)(3) ........................................................................... Not Applicable
(d) ........................................................................... Not Applicable
(e) ........................................................................... 10.5
(f) ........................................................................... Not Applicable
Section 315(a) ........................................................................... 7.1
(b) ........................................................................... 7.5
(c) ........................................................................... 7.1
(d) ........................................................................... 7.1
(e) ........................................................................... 6.14
Section 316(a) ........................................................................... 2.10
(a)(1)(A) ........................................................................... 6.12
(a)(1)(B) ........................................................................... 6.13
(b) ........................................................................... 6.8
Section 317(a)(1) ........................................................................... 6.3
(a)(2) ........................................................................... 6.4
(b) ........................................................................... 2.5
Section 318(a) ........................................................................... 10.1
</TABLE>
- ---------------
Note: This Cross-Reference Table is not part of the Indenture.
<PAGE> 6
Indenture dated as of ___________, 1998 between Chancellor
Media Corporation, a Delaware corporation (the "Company"), and
_________________, a ________________, as Trustee ("Trustee").
[The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.]
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least once a day
for at least five days in each calendar week and of general circulation in the
place in connection with which the term is used. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof that
is made or given by the Trustee shall constitute a sufficient publication of
such notice.
"Bearer" means anyone in possession from time to time of a
Bearer Security.
<PAGE> 7
"Bearer Security" means any Security, including any interest
coupon appertaining thereto, that does not provide for the identification of the
Holder thereof.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate (and delivered
to the Trustee, if appropriate).
"Business Day" means, unless otherwise provided by Board
Resolution, Officers' Certificate or supplemental indenture hereto for a
particular Series, any day except a Saturday, Sunday or a legal holiday in The
City of New York on which banking institutions are authorized or required by
law, regulation or executive order to close.
"Company" means the party named as such above until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Order" means a written order signed in the name of
the Company by two Officers, one of whom must be the Company's principal
executive officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name
of the Company by its Chairman of the Board, a President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"Debt" of any person as of any date means, without
duplication, all indebtedness of such person in respect of borrowed money,
including all interest, fees and expenses owed in respect thereto (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments.
"Default" means any event which is, or with the passage of
time or giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person,
2
<PAGE> 8
"Depository" as used with respect to the Securities of any Series shall mean the
Depository with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the
Commission of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Foreign Currency" means any currency or currency unit issued
by a government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to
Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by or acting as an agency
or instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a
Security is registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
"interest" with respect to any Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or
installment of principal thereof, means the date on which the principal of such
Security or such installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by
3
<PAGE> 9
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company.
"person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on, and any Additional Amounts in
respect of, the Security.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt
instruments of the Company of any Series authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Series" or "Series of Securities" means each series of
debentures, notes or other debt instruments of the Company created pursuant to
Sections 2.1 and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect
Subsidiary of the Company that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such regulation is in effect on the date hereof, or (ii) any group of
direct or indirect Subsidiaries of the Company that, taken together as a group,
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such regulation
is in effect on the date hereof.
4
<PAGE> 10
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any specified person means any corporation of
which at least a majority of the outstanding stock having by the terms thereof
ordinary voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other 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 directly or indirectly owned by
such person, or by one or more other Subsidiaries, or by such person and one or
more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb), as amended from time to time, and as in effect on the date
of this Indenture; provided, however, that in the event the TIA is amended after
such date, "TIA" means, to the extent required by any such amendment, the Trust
Indenture Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to this Indenture, and thereafter "Trustee" shall mean or include each
person who is then a Trustee hereunder, and if at any time there is more than
one such person, "Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"U.S. Government Obligations" means securities which are (i)
direct obligations of The United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
5
<PAGE> 11
Section 1.2. Other Definitions.
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
- ---- -------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
</TABLE>
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a
Securityholder.
"indenture to be qualified" means this
Indenture.
"indenture trustee" or "institutional
trustee" means the Trustee.
"obligor" on the Securities means the
Company and any successor obligor upon
the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
6
<PAGE> 12
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles;
(c) references to "generally accepted accounting
principles" shall mean generally accepted accounting principles in
effect as of the time when and for the period as to which such
accounting principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the
plural include the singular; and
(f) provisions apply to successive events and
transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board Resolution,
Officers' Certificate or supplemental indenture may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series,
the following shall be established (as to the Series generally, in the case of
Subsection 2.2.1 and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.2.2 through 2.2.22) by a Board
Resolution, a supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
2.2.1. the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be issued;
7
<PAGE> 13
2.2.3. any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the
Securities of the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable)
per annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange
index or financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, shall commence and be
payable and any regular record date for the interest payable on any interest
payment date;
2.2.6. the place or places where the principal of and
interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon which the
Securities of the Series may be redeemed, in whole or in part, at the option of
the Company;
2.2.8. the obligation, if any, of the Company to redeem or
purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices
at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of such
repurchase obligations;
2.2.10. if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which the Securities of the
Series shall be issuable;
2.2.11. the forms of the Securities of the Series in bearer
or fully registered form (and, if in fully registered form, whether the
Securities will be issuable as Global Securities);
2.2.12. if other than the principal amount thereof, the
portion of the principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
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2.2.13. the currency of denomination of the Securities of the
Series, which may be Dollars or any Foreign Currency, including, but not limited
to, the ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
2.2.14. the designation of the currency, currencies or
currency units in which payment of the principal of and interest, if any, on the
Securities of the Series will be made;
2.2.15. if payments of principal of or interest, if any, on
the Securities of the Series are to be made in one or more currencies or
currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the manner in which the amounts of payment of
principal of or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;
2.2.17. the provisions, if any, relating to any security
provided for the Securities of the Series;
2.2.18. any addition to or change in the Events of Default
which applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to or change in the covenants set forth
in Articles IV or V which applies to Securities of the Series;
2.2.20. any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.1, but which may modify or delete any
provision of this Indenture insofar as it applies to such Series); and
2.2.21. any depositories, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to Securities of
such Series if other than those appointed herein; and
2.2.22. the terms and conditions, if any, upon which the
Securities and any guarantees thereof shall be subordinated in right of payment
to other indebtedness of the Company or any guarantor; and
2.2.23. the form and terms of any guarantee of the Securities.
All Securities of any one Series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
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Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or Officers' Certificate,
upon receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental indenture
hereto or Officers' Certificate delivered pursuant to Section 2.2, except as
provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee
shall have received and (subject to Section 7.2) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
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Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment ("Paying Agent"), where Securities of
such Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect of
the Securities of such Series and this Indenture may be served ("Service
Agent"). The Registrar shall keep a register with respect to each Series of
Securities and to their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying
Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 for Securities of any Series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying
Agent or Service Agent, as the case may be, is appointed prior to the time
Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the Trustee, all
money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a
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separate trust fund for the benefit of Securityholders of any Series of
Securities all money held by it as Paying Agent.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities and shall otherwise
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each interest payment date
and at such other times as the Trustee may request in writing a list, in such
form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of Securities.
Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or
a co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required (a) to
issue, register the transfer of, or exchange Securities of any Series for the
period beginning at the opening of business fifteen days immediately preceding
the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
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authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds on the Maturity of Securities of a Series
money sufficient to pay such Securities payable on that date, then on and after
that date such Securities of the Series cease to be outstanding and interest on
them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be
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outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver Securities of a Series owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon
a Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment, replacement or cancellation and shall destroy such
canceled Securities (subject to the record retention requirement of the Exchange
Act) and deliver a certificate of such destruction to the Company, unless the
Company otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent
permitted by law, any interest payable on the defaulted interest, to the persons
who are Securityholders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail to the Trustee and to each Securityholder of
the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
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Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a
supplemental indenture hereto or an Officers' Certificate shall establish
whether the Securities of a Series shall be issued in whole or in part in the
form of one or more Global Securities and the Depository for such Global
Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions
to the contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of
the Indenture for Securities registered in the names of Holders other than the
Depository for such Security or its nominee only if (i) such Depository notifies
the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository within 90 days of such event, (ii) the Company
executes and delivers to the Trustee an Officers' Certificate to the effect that
such Global Security shall be so exchangeable or (iii) an Event of Default with
respect to the Securities represented by such Global Security shall have
happened and be continuing. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in such
names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security
may not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository, by a nominee of such Depository
to such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.14.3. Legend. Any Global Security issued hereunder shall
bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository."
2.14.4. Acts of Holders. The Depository, as a Holder, may
appoint agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under the Indenture.
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2.14.5. Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment of
the principal of and interest, if any, on any Global Security shall be made to
the Holder thereof.
2.14.6. Consents, Declaration and Directions. Except as
provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat a
person as the Holder of such principal amount of outstanding Securities of such
Series represented by a Global Security as shall be specified in a written
statement of the Depository with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Indenture.
Section 2.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify
the Trustee of the redemption date and the principal amount of Series of
Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the
Trustee).
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger
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than $1,000. Securities of the Series and portions of them it selects shall be
in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities
of any Series issuable in other denominations pursuant to Section 2.2.10, the
minimum principal denomination for each Series and integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for
redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided
in Section 3.3, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. A notice of
redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the
redemption date.
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Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it will duly and punctually pay the
principal of and interest, if any, on the Securities of that Series in
accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee within 15 days after
it files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA ss. 314(a).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers'
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Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or
convey, transfer or lease all or substantially all of its properties and assets
to, any person (a "successor person"), and may not permit any person to merge
into, or convey, transfer or lease its properties and assets substantially as an
entirety to, the Company, unless:
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(a) the successor person (if any) is a corporation,
partnership, trust or other entity organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes the
Company's obligations on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no
Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed transaction
and such supplemental indenture comply with this Indenture.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers' Certificate,
it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default in the payment of any interest on any Security of
that Series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a Paying
Agent prior to the expiration of such period of 30 days); or
(b) default in the payment of the principal of any Security of
that Series when such payment becomes due and payable, at its Maturity,
upon redemption or otherwise; or
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(c) default in the deposit of any sinking fund payment, when
and as due in respect of any Security of that Series; or
(d) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which default
continues uncured for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is unable to pay its debts as the same
become due; or
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of
its Significant Subsidiaries or for all or substantially all
of its property, or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.18.
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The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
Series at the time outstanding occurs and is continuing (other than an Event of
Default as to the Company referred to in Section 6.1(e) or (f)) then in every
such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the outstanding Securities of that Series may declare the principal
amount (or, if any Securities of that Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such
Securities) of and accrued and unpaid interest, if any, on all of the Securities
of that Series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) and accrued and unpaid interest, if
any, shall become immediately due and payable. If an Event of Default specified
in Section 6.1(e) or (f) shall occur as to the Company, the principal amount (or
specified amount) of and accrued and unpaid interest, if any, on all outstanding
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to any Series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities
of that Series,
(ii) the principal of any Securities of that Series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon any overdue principal and overdue
interest at the rate or rates prescribed therefor in such
Securities, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
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(b) all Events of Default with respect to Securities of that
Series, other than the non-payment of the principal of Securities of
that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or
impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of any
Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment
when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or deemed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such Series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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Section 6.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
No Holder of any Security of any Series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b) the Holders of not less than 25% in principal amount of
the outstanding Securities of that Series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
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Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such Series, provided that
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(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal of
or interest on any Security of such Series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any Series
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
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ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon Officers' Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of
this Indenture; however, in the case of any such Officers'
Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates
and Opinions of Counsel to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it with
respect to Securities of any Series in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
Series.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this
Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk is
not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of
care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care. No Depository shall be deemed an agent of the Trustee
and the Trustee shall not be responsible for any act or omission by any
Depository.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
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(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer
of the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Security of any Series, the Trustee may withhold the notice if and so long
as its corporate trust committee or a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear on
the register kept by the Registrar and, if any Bearer Securities are
outstanding, publish in an Authorized Newspaper, a brief report dated as of such
May 15, in accordance with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and each stock
exchange on which the Securities of that Series are listed. The Company shall
promptly notify the Trustee when Securities of any Series are listed on any
stock exchange.
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Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost of
defending itself) against any loss, liability or expense incurred by it except
as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through negligence or
bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one
or more Series by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and the Company. The Company
may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee with respect to the Securities of any
one or more Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of at least 10% in principal amount of the Securities of the applicable Series
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee with respect to the Securities of any one or
more Series fails to comply with Section 7.10, any Securityholder of the
applicable Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least
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$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further
effect (except as hereinafter provided in this Section 8.1), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company, or
(4) are deemed paid and discharged
pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which
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have become due and payable on or prior to the date of such deposit) or to the
Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.7, and,
if money shall have been deposited with the Trustee pursuant to clause (a) of
this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
deposited with the Trustee pursuant to Section 8.1, all money and U.S.
Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.3 or 8.4 and all money received by
the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section
8.3 or 8.4, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine,
to the persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the
Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Sections 8.3 or 8.4 or the interest and principal received
in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or Foreign
Government Obligations or money held by it as provided in Sections 8.3
or 8.4 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under
this Indenture.
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Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2.20, to be inapplicable to Securities of any Series, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d) hereof, (i)
payment of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and
(ii) the benefit of any mandatory sinking fund payments applicable to
the Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and
8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities (i)
in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and
principal in respect thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including mandatory
sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or
principal are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
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<PAGE> 41
(f) no Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the
Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such Series over any other creditors of the company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i) such deposit shall not result in the trust arising from
such deposit constituting an investment company (as defined in the
Investment Company Act of 1940, as amended), or such trust shall be
qualified under such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to
Section 2.2.20 to be inapplicable to Securities of any Series, on and after the
91st day after the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with any term, provision or condition set forth
under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series
of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.2.20 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default under Section 6.1), with
respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
(a) With reference to this Section 8.4, the Company has
deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of
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<PAGE> 42
the Holders of such Securities (i) in the case of Securities of such
Series denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or
U.S. Government Obligations, or (ii) in the case of Securities of such
Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through
the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not
later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
principal and interest, if any, on and any mandatory sinking fund in
respect of the Securities of such Series on the dates such
installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(d) the Company shall have delivered to the Trustee an Opinion
of Counsel confirming that Holders of the Securities of such Series
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance
had not occurred;
(e) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company; and
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal and interest that
remains unclaimed for two years. After that, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
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ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this
Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but
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it shall be sufficient if such consent approves the substance thereof. After a
supplemental indenture or waiver under this section becomes effective, the
Company shall mail to the Holders of Securities affected thereby and, if any
Bearer Securities affected thereby are outstanding, publish on one occasion in
an Authorized Newspaper, a notice briefly describing the supplemental indenture
or waiver. Any failure by the Company to mail or publish such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an
amendment or waiver may not:
(a) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of
interest (including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of or interest, if any, on any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at
least a majority in principal amount of the outstanding Securities of
such Series and a waiver of the payment default that resulted from such
acceleration);
(f) make the principal of or interest, if any, on any Security
payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this
sentence), 10.15 or 10.16; or
(h) waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any
Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
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Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (a) through (g) of Section 9.3. In that
case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee
shall authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee shall sign
all supplemental indentures, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall control.
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Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company:
Chancellor Media Corporation
433 East Las Colinas Boulevard
Suite 1130
Irving, TX 75039
Attention: Chief Financial Officer
if to the Trustee:
[Name of Trustee]
[Address]
-------------------------
-------------------------
Attention:
--------------
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar and, if any Bearer Securities are outstanding, published in an
Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the
manner provided above, within the time prescribed, it is duly given, whether or
not the Securityholder receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA
ss. 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
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(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers'
Certificate or supplemental indenture for a particular Series, a "Legal Holiday"
is any day that is not a Business Day. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each
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Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate delivered pursuant to
Section 2.2 of this Indenture with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
Series
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or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of or interest or other amount on the Securities of any Series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of
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the full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture. For purposes
of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding Securities of
such Series to which such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers'
Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and
shall be credited for such purpose by the Trustee at the price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities in lieu of cash payments pursuant to this
Section 11.2, the principal amount of Securities of such Series to be redeemed
in order to exhaust
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the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to
be released to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CHANCELLOR MEDIA CORPORATION
By:
--------------------------------------
Name:
Its:
[Name of Trustee]
By:
--------------------------------------
Name:
Its:
<PAGE> 1
EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
January 16, 1998
Chancellor Media Corporation
433 East Las Colinas Boulevard
Suite 1130
Irving, Texas 75039
Re: $1,000,000,000 Aggregate Offering Price of Securities of
Chancellor Media Corporation
--------------------------------------------------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") filed on January 16, 1998 with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested our opinion with respect to
the matters set forth below.
You have provided us with a prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will
be supplemented in the future by one or more supplements to the Prospectus (each
a "Prospectus Supplement"). The Prospectus as supplemented by various
Prospectus Supplements will provide for the issuance and sale by Chancellor
Media Corporation, a Delaware corporation (the "Company"), of up to
$1,000,000,00 aggregate offering price of (i) one or more series of debt
securities (the "Debt Securities"), (ii) shares of common stock, par value $.01
per share (the "Common Stock"), (iii) shares of preferred stock, par value $.01
per share (the "Preferred Stock") and (iv) warrants to acquire Debt Securities,
Common Stock or Preferred Stock (collectively, the "Warrants"), and the issuance
and sale by certain of the Company's direct and indirect wholly-owned
subsidiaries (the "Subsidiaries") of guarantees of the Debt Securities (the
<PAGE> 2
LATHAM & WATKINS
CHANCELLOR MEDIA CORPORATION
January 16, 1998
Page 2
"Guarantees"). The Debt Securities, the Guarantees, the Preferred Stock, the
Common Stock and the Warrants are collectively referred to herein as the
"Securities." The Registration Statement provides that Debt Securities may be
convertible into shares of Common Stock or shares of Preferred Stock, and that
shares of Preferred Stock may be convertible into shares of Common Stock or
Debt Securities.
The Debt Securities will be issued pursuant to one or more
indentures in the form filed as an exhibit to the Registration Statement, as
amended or supplemented from time to time (each, an "Indenture") between the
Company, as obligor, and a trustee chosen by the Company and qualified to act
as such under the Trust Indenture Act of 1939, as amended (each, a "Trustee").
The Warrants will be issued under one or more warrant agreements (each, a
"Warrant Agreement"), by and among the Company and a financial institution
identified therein as warrant agent (each, a "Warrant Agent").
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization and issuance of the
Securities. For purposes of this opinion, we have assumed that such
proceedings will be timely and properly completed, in accordance with all
requirements of applicable federal, Delaware and New York laws, in the manner
presently proposed.
We have made such legal and factual examinations and
inquiries, including an examination of originals and copies certified or
otherwise identified to our satisfaction, of all such documents, corporate
records and instruments of the Company as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We have been furnished with, and with your consent have
exclusively relied upon, certificates of officers of the Company with respect
to certain factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware and,
with respect to the opinions set forth in paragraphs 1, 2 and 5 below, the
internal laws of the State of New York, and we express no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set
forth herein, it is our opinion that, as of the date hereof:
<PAGE> 3
LATHAM & WATKINS
CHANCELLOR MEDIA CORPORATION
January 16, 1998
Page 3
1. When (a) the Company and the Trustee duly execute and
deliver an Indenture and the specific terms of a particular Debt Security have
been duly established in accordance with the terms of such Indenture, and such
Debt Securities have been duly authenticated by the Trustee and duly executed
and delivered on behalf of the Company against payment therefor in accordance
with the terms and provisions of the Indenture and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (b) when the Registration Statement and any required
post-effective amendments thereto have all become effective under the
Securities Act, and (c) assuming that the terms of the Debt Securities as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (d) assuming that the
Debt Securities as executed and delivered do not violate any law applicable to
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company, and (e) assuming that the Debt Securities
as executed and delivered comply with all requirements and restrictions, if
any, applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company and (f) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with the terms of the Debt
Securities.
2. When (a) the Company, the Subsidiaries delivering
Guarantees of Debt Securities and the Trustee duly execute and deliver an
Indenture and the specific terms of the Guarantees and the related Debt
Securities have been duly established in accordance with the terms of the
applicable Indenture, the Guarantees have been duly executed and delivered and
the related Debt Securities have been duly authenticated by the Trustee and
duly executed and delivered on behalf of the Company against payment therefor
in accordance with the terms and provision of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when the Registration Statement and any
required post-effective amendment thereto have all become effective under the
Securities Act, and (c) assuming that the terms of the Guarantees as executed
and delivered are as described in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (d) assuming that the Guarantees
as executed and delivered do not violate any law applicable to each Subsidiary
delivering a Guarantee or result in a default under or breach of any agreement
or instrument binding upon each such Subsidiary, and (e) assuming that the
Guarantees as executed and delivered comply with all requirements and
restrictions, if any, applicable to each Subsidiary delivering a Guarantee,
whether imposed by any court or governmental or regulatory body having
jurisdiction over each such Subsidiary, and (f) assuming that the Guarantees
are then issued as contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Guarantees will constitute valid
and binding obligations of each Subsidiary
<PAGE> 4
LATHAM & WATKINS
CHANCELLOR MEDIA CORPORATION
January 16, 1998
Page 4
delivering a Guarantee, enforceable against each such Subsidiary in accordance
with the terms of the Guarantees.
3. The Company has the authority pursuant to its Amended
and Restated Certificate of Incorporation (the "Certificate") to issue up to
50,000,000 shares of Preferred Stock. When a series of Preferred Stock has
been duly established in accordance with the terms of the Company's Certificate
and applicable law, and upon adoption by the Board of Directors of the Company
of a resolution in form and content as required by applicable law and upon
issuance and delivery of and payment for such shares in the manner contemplated
by the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and by such resolution, such shares of such series of Preferred
Stock will be validly issued, fully paid and nonassessable.
4. The Company has the authority pursuant to its
Certificate to issue up to 200,000,000 shares of Common Stock. Upon adoption
by the Board of Directors of the Company of a resolution in form and content as
required by applicable law and upon issuance and delivery of and payment for
such shares in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution,
such shares of Common Stock will be validly issued, fully paid and
nonassessable.
5. When (a) the Company and the Warrant Agent duly
execute and deliver a Warrant Agreement and the specific terms of a particular
Warrant have been duly established in accordance with the terms of such Warrant
Agreement, and such Warrants have been duly authenticated by the Warrant Agent
and duly executed and delivered on behalf of the Company against payment
therefor in accordance with the terms and provisions of the Warrant Agreement
and as contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (b) when the Registration Statement and
any required post-effective amendments thereto have all become effective under
the Securities Act, and (c) assuming that the terms of the Warrants as executed
and delivered are as described in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (d) assuming that the Warrants as
executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, and (e) assuming that the Warrants as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company and (f) assuming that the Warrants are then
issued and sold as contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Warrants will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
The opinions set forth in paragraphs 1, 2 and 5 above are
subject to the following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in
<PAGE> 5
LATHAM & WATKINS
CHANCELLOR MEDIA CORPORATION
January 16, 1998
Page 5
effect relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, including without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of, or contribution
to, a party with respect to a liability where such indemnification or
contribution is contrary to public policy; (iv) we express no opinion
concerning the enforceability of any waiver of rights or defenses with respect
to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of Debt Securities may affect the collectibility of any
portion of the stated principal amount thereof which might be determined to
constitute unearned interest thereon.
To the extent that the obligations of the Company and the
Subsidiaries under an Indenture may be dependent upon such matters, we assume
for purposes of this opinion that each of the Company and the Subsidiaries has
been duly organized and is validly existing under applicable state law, and has
the organizational power and authority to issue and sell the Securities; that
the applicable Indenture has been duly authorized by all necessary
organizational action by the Company and the Subsidiaries, has been duly
executed and delivered by the Company and the Subsidiaries and constitutes the
legally valid, binding and enforceable obligation of each of the Company and the
Subsidiaries enforceable against each of the Company and the Subsidiaries in
accordance with its terms; that the Trustee for each Indenture is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that the Trustee is duly qualified to engage in
the activities contemplated by the applicable Indenture; that the applicable
Indenture has been duly authorized, executed and delivered by the Trustee and
constitutes a legally valid, binding and enforceable obligation of the Trustee,
enforceable against the Trustee in accordance with its terms; that the Trustee
is in compliance, generally and with respect to acting as Trustee under the
applicable Indenture, with all applicable laws and regulations; and that the
Trustee has the requisite organizational and legal power and authority to
perform its obligations under the applicable Indenture.
To the extent that the obligations of the Company under each
Warrant Agreement may be dependent upon such matters, we assume for purposes of
this opinion that the Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware and has the
corporate power and authority to issue and sell the Securities; that the
applicable Warrant Agreement has been duly authorized by all necessary
corporate action by the Company, has been duly executed and delivered by the
Company and constitutes the legally valid, binding and enforceable obligation
of the Company enforceable against the Company in accordance with its terms;
that the Warrant Agent is duly organized, validly existing and in good
<PAGE> 6
LATHAM & WATKINS
CHANCELLOR MEDIA CORPORATION
January 16, 1998
Page 6
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities contemplated by the Warrant
Agreement; that the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes the legally valid, binding and
enforceable obligation of the Warrant Agent, enforceable against the Warrant
Agent in accordance with its terms; that the Warrant Agent is in compliance,
generally and with respect to acting as a Warrant Agent under the Warrant
Agreement, with all applicable laws and regulations; and that the Warrant Agent
has the requisite organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE> 1
EXHIBIT 12.1
CHANCELLOR MEDIA CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(IN THOUSANDS EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED ENDED
------------------------------------------------- SEPTEMBER 30, SEPTEMBER 30,
1992 1993 1994 1995 1996 1996 1997
------- -------- ------- ------- -------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before income taxes......... $(4,989) $(20,749) $ 39 $(5,658) $(19,090) $(21,022) $ 5,882
Fixed charges............................. 11,030 15,086 15,252 20,854 40,461 30,839 51,819
Less: Dividends on preferred stock of
subsidiary(1)........................... -- -- -- -- -- -- (4,275)
------- -------- ------- ------- -------- -------- -------
Earnings as adjusted(A)................... 6,041 (5,663) 15,291 15,196 21,371 9,817 53,426
======= ======== ======= ======= ======== ======== =======
Fixed Charges:
Interest expense.......................... 10,112 13,878 13,809 19,199 37,527 29,212 45,036
Amortization of deferred financing
costs................................... 398 728 712 631 1,113 474 885
Dividends on preferred stock of
subsidiary(1)........................... -- -- -- -- -- -- 4,275
Rents under leases representative of an
interest factor(2)...................... 520 480 731 1,024 1,821 1,153 1,623
------- -------- ------- ------- -------- -------- -------
Fixed charges as adjusted................... 11,030 15,086 15,252 20,854 40,461 30,839 51,819
Preferred stock dividends(1)................ 1,140 7,317 7,431 7,431 5,877 5,568 8,843
------- -------- ------- ------- -------- -------- -------
Total fixed charges and preferred stock
dividends(B).............................. 12,170 22,403 22,683 28,285 46,338 36,407 60,662
======= ======== ======= ======= ======== ======== =======
Deficiency of earnings to combined fixed
charges and preferred stock dividends (B)
minus (A)................................. $ 6,129 $ 28,066 $ 7,392 $13,089 $ 24,967 $ 26,590 $ 7,236
</TABLE>
- ---------------
(1) Represents pretax earnings required to cover preferred stock dividends.
(2) Management of Chancellor Media Corporation believes approximately one-third
of rental and lease expense is representative of the interest component of
rent expense.
<PAGE> 1
EXHIBIT 12.2
CHANCELLOR MEDIA CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED ENDED
------------------------------------------------- SEPTEMBER 30, SEPTEMBER 30,
1992 1993 1994 1995 1996 1996 1997
------- -------- ------- ------- -------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income (loss) before income taxes.... $(4,989) $(20,749) $ 39 $(5,658) $(19,090) $(21,022) $ 5,882
Fixed charges............................ 11,030 15,086 15,252 20,854 40,461 30,839 51,819
Less: Dividends on preferred stock of
subsidiary(1).......................... -- -- -- -- -- -- (4,275)
------- -------- ------- ------- -------- -------- -------
Earnings as adjusted(A).................. $ 6,041 $ (5,663) $15,291 $15,196 $ 21,371 $ 9,817 $53,426
======= ======== ======= ======= ======== ======== =======
Fixed Charges:
Interest expense......................... $10,112 $ 13,878 $13,809 $19,199 $ 37,527 $ 29,212 $45,036
Amortization of deferred financing
costs.................................. 398 728 712 631 1,113 474 885
Dividends on preferred stock of
subsidiary(1).......................... -- -- -- -- -- -- 4,275
Rents under leases representative of an
interest factor(1)..................... 520 480 731 1,024 1,821 1,153 1,623
------- -------- ------- ------- -------- -------- -------
Fixed charges as adjusted(B)............... 11,030 15,086 15,252 20,854 40,461 30,839 51,819
======= ======== ======= ======= ======== ======== =======
Ratio of earnings to fixed charges (A)
divided by (B)........................... -- -- 1.0 -- -- -- 1.03
Deficiency of earnings to fixed charges.... $ 4,989 $ 20,749 $ -- $ 5,658 $ 19,090 $ 21,022 $ --
</TABLE>
- ---------------
(1) Represents pretax earnings required to cover preferred stock dividends.
(2) Management of Chancellor Media Corporation believes approximately one-third
of rental and lease expense is representative of the interest component of
rent expense.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Chancellor Media Corporation:
We consent to the incorporation by reference herein of our reports on the
following financial statements: 1) the consolidated balance sheets of Evergreen
Media Corporation and subsidiaries as of December 31, 1995 and 1996 and the
related consolidated statements of operations, stockholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1996; 2)
the combined balance sheets of WMZQ Inc. and Viacom Broadcasting East, Inc. as
of December 31, 1995 and 1996 and the related combined statements of earnings
and cash flows for each of the years in the three-year period ended December 31,
1996; 3) the combined balance sheets of Riverside Broadcasting Co., Inc. and
WAXQ Inc. as of December 31, 1995 and 1996 and the related combined statements
of earnings and cash flows for each of the years in the three-year period ended
December 31, 1996; 4) the balance sheets of KKSF-FM/KDFC-FM and AM (A Division
of the Brown Organization) as of December 31, 1995 and 1996 and the related
statements of earnings and division equity and cash flows for the years then
ended; (5) the balance sheets of WLIT Inc. as of December 31, 1995 and 1996 and
the related statements of earnings and cash flows for each of the years in the
three-year period ended December 31, 1996; (6) the combined balance sheets of
KYSR Inc. and KIBB Inc. as of December 31, 1995 and 1996 and the related
combined statements of operations and cash flows for each of the years in the
three-year period ended December 31, 1996; and (7) the balance sheets of WDRQ
Inc. as of December 31, 1995 and 1996 and the related statements of earnings and
cash flows for each of the years in the three-year period ended December 31,
1996. We also consent to the reference of our firm under the heading "Experts"
in the Registration Statement.
KPMG Peat Marwick LLP
Dallas, Texas
January 16, 1998
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Chancellor Media Corporation:
We consent to the incorporation by reference herein of our report on the balance
sheet of WDAS-AM/FM (station owned and operated by Beasley FM Acquisition Corp.)
as of December 31, 1996 and the related statements of earnings and station
equity and cash flows for the year then ended, and the reference to our firm
under the heading "Experts" in the Registration Statement.
KPMG Peat Marwick LLP
St. Petersburg, Florida
January 16, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Chancellor Media
Corporation of our report dated May 2, 1997 relating to the financial statements
of Century Chicago Broadcasting, L.P., which appears in the Current Report on
Form 8-K of Evergreen Media Corporation dated May 30, 1997 and filed June 4,
1997. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICE WATERHOUSE LLP
Chicago, Illinois
January 16, 1998
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of Chancellor Media
Corporation of our report dated May 8, 1997, (and to all references to our Firm)
included in Evergreen Media Corporation's previously filed Form 8-K dated May
30, 1997 and filed June 4, 1997.
Arthur Andersen LLP
Chicago, Illinois
January 16, 1998
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Chancellor Media Corporation of our reports dated February 13, 1997,
except for Note 15 as to which the date is February 19, 1997, on our audits of
the consolidated financial statements and financial statement schedules of
Chancellor Broadcasting Company and Subsidiaries as of December 31, 1995 and
1996 and for each of the three years in the period ended December 31, 1996,
which reports appear in the Form 10-K dated March 28, 1997 filed by Chancellor
Broadcasting Company. We also consent to the reference to our firm under the
caption "Experts".
Coopers & Lybrand L.L.P.
Dallas, Texas
January 16, 1998
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Chancellor Media Corporation of our reports dated February 13, 1997,
except for Note 15 as to which the date is February 19, 1997, on our audits of
the consolidated financial statements and financial statement schedule of
Chancellor Radio Broadcasting Company and Subsidiaries as of December 31, 1995
and 1996 and for each of the three years in the period ended December 31, 1996,
which reports appear in the Form 10-K dated March 28, 1997 filed by Chancellor
Radio Broadcasting Company. We also consent to the reference to our firm under
the caption "Experts".
Coopers & Lybrand L.L.P.
Dallas, Texas
January 16, 1998
<PAGE> 1
EXHIBIT 23.8
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Chancellor Media Corporation of our reports dated March 24, 1997, on
our audits of the consolidated statements of operations, changes in common
stockholders' equity, cash flows and financial statement schedule of Trefoil
Communications, Inc. and Subsidiaries for the period January 1, 1996 through
February 13, 1996, which reports appear in the Form 10-K dated March 28, 1997
filed by Chancellor Broadcasting Company. We also consent to the reference to
our firm under the caption "Experts".
Coopers & Lybrand L.L.P.
Dallas, Texas
January 16, 1998
<PAGE> 1
EXHIBIT 23.9
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Chancellor Media
Corporation of our report dated February 14, 1996 relating to the consolidated
financial statements of Trefoil Communications, Inc., which appears on page F-41
of the 1996 Annual Report on Form 10-K of Chancellor Broadcasting Company. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page S-10 of such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Price Waterhouse LLP
Los Angeles, California
January 16, 1998
<PAGE> 1
EXHIBIT 23.10
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Chancellor Media Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference of our report dated March 31, 1997 (and to all references to our Firm)
in this Registration Statement on Form S-3 dated January 16, 1998 of Chancellor
Media Corporation.
Arthur Andersen LLP
Washington, D.C.
January 16, 1998
