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EXHIBIT 4.16.14
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CAPSTAR COMMUNICATIONS, INC.
(formerly SFX Broadcasting, Inc.)
as Issuer,
THE GUARANTORS
and
THE CHASE MANHATTAN BANK
as Trustee
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THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of November 12, 1999
to
INDENTURE
Dated as of May 31, 1996
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10 3/4% SENIOR SUBORDINATED NOTES
DUE 2006
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THIRTEENTH SUPPLEMENTAL INDENTURE
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of November 12, 1999, by
and among Capstar Communications, Inc., a Delaware corporation (the "Company");
and Capstar Communications California, Inc., a Delaware corporation; Liberty
Broadcasting of Albany Incorporated, a New York corporation; Liberty
Broadcasting of New York, Inc., a New York corporation; ▇▇▇▇▇▇ Broadcasting
Company, a California corporation; WBAB, Inc., a New York corporation; WBLI,
Inc., a New York corporation; WGBB, Inc., a New York corporation; WGNA, Inc., a
New York corporation; WGNA-FM, Inc., a New York corporation; WHFM, Inc., a New
York corporation; WHJJ, Inc., a Rhode Island corporation; WHJY, Inc., a Rhode
Island corporation; WPYX, Inc., a New York corporation; WSNE, Inc., a Rhode
Island corporation; and WTRY, Inc., a New York corporation (each a "Guarantor");
and Capstar Radio Operating Company, a Delaware corporation; and Capstar TX
Limited Partnership, a Delaware limited partnership (together, the "New
Guarantors"); and The Chase Manhattan Bank, as trustee under the indenture
referred to below (the "Trustee").
R E C I T A L S
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an Indenture dated as of May 31, 1996 (the
"Indenture"), providing for the issuance of an aggregate principal amount of
$450,000,000 of 10 3/4% Senior Subordinated Notes due 2006 (the "Notes");
WHEREAS, the Company, the Guarantors, the New Guarantors and the
Trustee desire by this Thirteenth Supplemental Indenture, pursuant to and as
contemplated by Sections 9.01 and 9.02 of the Indenture, to amend certain
provisions therein;
WHEREAS, Section 4.15 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantors to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantors shall unconditionally guarantee all of the Company's Obligations
under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions
set forth herein;
WHEREAS, the execution and delivery of this Thirteenth Supplemental
Indenture has been authorized by resolutions of the Boards of Directors of the
Company, the Guarantors and the New Guarantors;
WHEREAS, the Company has requested that the holders of the Notes
consent to and approve the amendments set forth herein;
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WHEREAS, the Company has received written consents to such amendments
from holders of at least seventy-five percent (75%) in aggregate principal
amount of the Notes outstanding; and
WHEREAS, all conditions and requirements necessary to make this
Thirteenth Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW THEREFORE, in consideration of the above premises each party agrees
as follows for the benefit of each other and for the equal and ratable benefit
of the holders of the Notes:
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS
Section 1.1. Capitalized Terms. Each capitalized term used herein
without definition shall have the meaning assigned to such term in the
Indenture.
Section 1.2. Effectiveness. This Thirteenth Supplemental Indenture
shall be effective upon execution by the parties hereto.
Section 1.3. Incorporation of Thirteenth Supplemental Indenture into
Indenture. This Thirteenth Supplemental Indenture is executed by the Company,
the Guarantors, the New Guarantors and the Trustee pursuant to the provisions of
Sections 4.15, 9.01 and 9.02 of the Indenture, and the terms and conditions
hereof shall be deemed to be part of the Indenture for all purposes upon the
effectiveness of this Thirteenth Supplemental Indenture. The Indenture, as
amended and supplemented by this Thirteenth Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
Section 1.4. Effect of Headings. The Articles and Section Headings
herein are for convenience only and shall not affect the construction hereof.
Section 1.5. Governing Law. The internal law of the state of New York
shall govern and be used to construe this Thirteenth Supplemental Indenture.
Section 1.6. Counterparts. This Thirteenth Supplemental Indenture may
be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 1.7. Recitals. The recitals contained herein shall be taken as
the statements of the Company, the Guarantors and the New Guarantors and the
Trustee assumes no responsibility
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for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Thirteenth Supplemental Indenture.
ARTICLE TWO
AMENDMENTS TO INDENTURE
Section 2.1. (a) Section 1.01 of the Indenture is amended to delete the
following definitions in their entirety:
"Acquired Debt"
"Advertising Business"
"Asset Sale"
"Attributable Debt"
"Broadcast Business"
"Cash Equivalents"
"Change of Control"
"Commitment Letter"
"Consolidated Cash Flow"
"Consolidated Indebtedness"
"Consolidated Interest Expense"
"Consolidated Net Income"
"Consolidated Net Worth"
"Continuing Directors"
"Dallas Disposition"
"Debt to Cash Flow Ratio"
"Disposition"
"Disposition Debt"
"Disqualified Stock"
"Equity Interests"
"Exchange Notes"
"Existing Indebtedness"
"Existing MMR Indebtedness"
"Fair Market Value"
"Houston Exchange"
"Investments"
"Louisville Disposition"
"Management Termination Agreements"
"Material Broadcast License"
"MMR"
"MMR Merger"
"MMR Stations"
"MMR Warrants"
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"Net Income"
"Net Proceeds"
"New Credit Agreement"
"Permitted Disposition Amount"
"Permitted Investments"
"Permitted Liens"
"Permitted Refinancing Debt"
"Preferred Stock"
"Preferred Stock Offering"
"Principal"
"Registration Rights Agreement"
"Related Party"
"Restricted Investment"
"SCMC"
"Series B Preferred Stock"
"Series C Preferred Stock"
"Series D Preferred Stock"
"SFX Merger Company"
"Shared Facilities Agreement"
"Significant Subsidiary"
"Washington Disposition"
"Weighted Average Life to Maturity"
"Wholly Owned Subsidiary"
(b) Section 1.02 of the Indenture is amended to delete the
following definitions in their entirety:
"Affiliate Transaction"
"Asset Sale Offer"
"Calculation Date"
"Change of Control Offer"
"Change of Control Payment"
"Change of Control Payment Date"
"Excess Proceeds"
"incur"
"insolvent"
"Offer Amount"
"Offer Period"
"Permitted Debt"
"Purchase Date"
"Restricted Payments"
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(c) Section 1.01 of the Indenture is amended to delete the last
sentence of the definition of "Bank Facilities" in its entirety.
(d) The following definitions in Section 1.01 of the Indenture are
amended and restated in their entirety to read as follows:
"Company" means Capstar Communications, Inc. (f/k/a SFX
Broadcasting, Inc.) until a successor replaces it pursuant to this
Indenture and thereafter means such successor and also includes for the
purposes of any provision contained herein and required by the TIA any
other obligor on the Notes.
"Guarantor" means each of the Persons named as a Guarantor or
New Guarantor in the preamble to this Thirteenth Supplemental Indenture
and their respective successors and assigns.
Section 2.2. The following Sections are deleted in their entirety:
3.09, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15,
4.16, 4.17, 4.18, 4.19, 4.20, 11.01, 11.02, 11.03, 11.04, 11.05, 11.06, and
11.07.
Section 2.3. Section 2.06(h)(ii) of the Indenture is amended to delete
the clause ", 3.09, 4.10, 4.14" in its entirety.
Section 2.4. Section 3.01 of the Indenture is amended to delete the
second paragraph thereof in its entirety.
Section 2.5. The first sentence of Section 3.03 is amended and restated
in its entirety to read as follows:
"At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first
class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address."
Section 2.6. Section 3.05 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or prior to 10:00 a.m. Eastern Time on the redemption date,
the Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption or purchase price of and accrued
interest and Liquidated Damages, if any, on all Notes to be redeemed or
purchased on that
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date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption or
purchase price of, and accrued interest and Liquidated Damages, if any,
on all Notes to be redeemed or purchased.
If Notes called for redemption are paid or if the Company has
deposited with the Trustee or Paying Agent money sufficient to pay the
redemption or purchase price of, and unpaid and accrued interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased,
on and after the applicable redemption or purchase date, interest and
Liquidated Damages, if any, ceases to accrue on the Notes or the
portions of Notes called for redemption (regardless of whether
certificates for such Notes are actually surrendered). If a Note is
redeemed or purchased on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid
interest and Liquidated Damages, if any, shall be paid to the Person in
whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid
upon surrender for redemption or purchase because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid
on the unpaid principal, from the redemption or purchase date until
such principal is paid, and to the extent lawful on any interest or
Liquidated Damages, if any, not paid on such unpaid principal, in each
case, at the rate provided in the Notes and in Section 4.01 hereof."
Section 2.7. Section 3.08 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes."
Section 2.8. The first paragraph of Section 4.01 of the Indenture is
amended and restated in its entirety to read as follows:
"The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other
than the Company, any Guarantor or any Affiliate thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company
in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company
shall pay all Liquidated Damages, if any, in the same manner and on
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the dates as set forth above and in the amounts set forth in the
Registration Rights Agreement."
Section 2.9. Section 4.13 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 4.13. CONTINUED EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and
effect (i) its corporate, partnership, limited liability company or
other existence in accordance its organizational documents (as the same
may be amended from time to time) and (ii) the rights (charter and
statutory), licenses and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right,
license or franchise if its Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not adverse in any
material respect to the Holders of the Notes."
Section 2.10. Section 5.01 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the
Company is the surviving entity or the entity or the Person formed by
or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made is a corporation organized or
existing under the laws of the United States, any state thereof or the
District of Columbia; and (ii) the entity or Person formed by or
surviving any such consolidation or merger (if other than the Company)
or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all
of the Obligations of the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form substantially similar to
Exhibit D hereto."
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Section 2.11. Section 6.01 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) a default for 30 days in the payment when due of
interest on, or Liquidated Damages, if any, with respect to,
the Notes (whether or not prohibited by Article 10 hereof);
(ii) a default in payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by
Article 10 hereof);
(iii) [intentionally left blank];
(iv) [intentionally left blank];
(v) [intentionally left blank];
(vi) [intentionally left blank];
(vii) [intentionally left blank];
(viii) the Company:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a Custodian
of it or for all or substantially all of its
property,
(d) makes a general assignment for the benefit
of its creditors, or
(e) generally is not paying its debts as they
become due; or
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company;
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(b) appoints a Custodian of the Company; or
(c) orders the liquidation of the Company;
and the order or decree remains unstayed and in
effect for 60 consecutive days.
The term "Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy
Law.
An Event of Default shall not be deemed to have
occurred under clause (iv) of this Section 6.01 until the
Trustee notifies the Company, or the Holders of at least 25%
in principal amount of the then outstanding Notes notify the
Company and the Trustee, of the Default and the Company does
not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
In the case of any Event of Default pursuant to the
provisions of this Section 6.01 occurring by reason of any
action (or inaction) willfully taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment
of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes, anything in this
Indenture or in the Notes to the contrary notwithstanding. If
an Event of Default occurs prior to May 15, 2001 by reason of
any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to May 15, 2001,
then the premium payable for purposes of this paragraph for
each of the years beginning May 15 of the years set forth
below shall be as set forth in the following table expressed
as a percentage of the amount that would otherwise be due but
for the provisions of this sentence, plus accrued interest and
Liquidated Damages, if any, to the date of payment:
YEAR PERCENTAGE
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1996 114.335%
1997 112.543%
1998 110.751%
1999 108.959%
2000 107.167%"
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Section 2.12. Section 6.02 of the Indenture is amended to delete the
following sentence in its entirety:
"Notwithstanding the foregoing, if an Event of Default
specified in clauses (viii) or (ix) of Section 6.01 hereof occurs with
respect to the Company, any of its Significant Subsidiaries or any
group of its Subsidiaries that, taken together, would constitute a
Significant Subsidiary, such an amount 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."
Section 2.13. Section 8.03 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from their obligations under the
covenants contained in Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed
"outstanding" for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document, but,
except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, Sections 6.01(iv) through 6.01(ix) hereof shall
not constitute Events of Default."
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Section 2.14. Section 9.02 of the Indenture is amended and restated in
its entirety to read as follows:
"SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
The Company and the Trustee may amend or supplement this
Indenture and the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Notes
then outstanding (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event
of Default (other than a Default or Event of Default in the payment of
the principal of, premium or Liquidated Damages, if any, or interest on
the Notes) or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents
obtained in connection with a purchase of, or tender offer or exchange
offer for the Notes). Any amendment to the provisions of Article 10
hereof will require the consent of the Holders of at least 75% in
aggregate principal amount of the Notes then outstanding if such
amendment would adversely affect the rights of Holders of Notes.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Guarantors
authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described
in Section 7.02 hereof, the Trustee shall join with the Company and
each of the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the
Trustee's own rights, duties or immunities under this indenture or
otherwise, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof. However, without the consent of
each Holder, an amendment or waiver may not (with respect to any Notes
held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or
waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the
Notes;
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(c) reduce the rate of or change the time for
payment of interest, including default interest, on
any Note;
(d) waive a Default or Event of Default in the
payment of principal of or premium or Liquidated
Damages, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal
amount of the then outstanding Notes and a waiver of
the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than
that stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of
principal of or premium or Liquidated Damages, if
any, or interest on the Notes;
(g) waive a redemption payment with respect to
any Note; or
(h) make any change in Section 6.04 or 6.07
hereof or in the foregoing amendments and waiver
provisions."
Section 2.15. Section 10.01 of the Indenture is amended to delete the
clause "and in Article 11" in its entirety.
ARTICLE THREE
AGREEMENT TO GUARANTEE
Section 3.1. The New Guarantors hereby agree, jointly and severally
with all other Guarantors, to guarantee the Company's obligations under the
Notes on the terms and subject to the conditions set forth in Article 11 of the
Indenture in the form existing immediately prior to the date hereof and to be
bound by all other applicable provisions of the Indenture, including, without
limitation, the provisions of Article 10 of the Indenture.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this THIRTEENTH
SUPPLEMENTAL INDENTURE to be duly executed as of the date first written above.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
---------------------------------
CAPSTAR COMMUNICATIONS, INC.
CAPSTAR COMMUNICATIONS
CALIFORNIA, INC.
CAPSTAR RADIO OPERATING
COMPANY
LIBERTY BROADCASTING OF
ALBANY INCORPORATED
LIBERTY BROADCASTING OF
NEW YORK, INC.
▇▇▇▇▇▇ BROADCASTING COMPANY
WBAB, INC.
WBLI, INC.
WGBB, INC.
WGNA, INC.
WGNA-FM, INC.
WHFM, INC.
WHJJ, INC.
WHJY, INC.
WPYX, INC.
WSNE, INC.
WTRY, INC.
By: /s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Chief Accounting Officer
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CAPSTAR TX LIMITED PARTNERSHIP
By: Capstar Radio Operating Company,
its general partner
By: /s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Chief Accounting Officer
S-2
