SENIOR UNSECURED TERM PROMISSORY NOTE OF $2.5 BILLION
Published on September 26, 2005
Exhibit 10.9
SENIOR UNSECURED TERM PROMISSORY NOTE
$2,500,000,000 | San Antonio, Texas | August 2, 2005 |
FOR VALUE RECEIVED, the undersigned, Clear Channel Outdoor, Inc., a Delaware
corporation (Maker), unconditionally and irrevocably promises to pay to the order of Clear
Channel Outdoor Holdings, Inc., a Delaware corporation (together with its successors, CCO;
CCO and any subsequent holder of this Note being referred to herein as Payee), at its principal
offices in San Antonio, Bexar County, Texas or at such other place as the holder of this Note may
hereafter designate in writing, in lawful money of the United States of America and in immediately
available funds, the principal amount of TWO BILLION FIVE HUNDRED MILLION AND NO/100 DOLLARS
($2,500,000,000), together with interest on the unpaid balance of said principal amount from time
to time remaining outstanding, from the date hereof until maturity, in like money, in immediately
available funds, at a rate per annum equal to the lesser of (i) the Contract Rate (as herein
defined) for each applicable period of determination and (ii) the Maximum Rate (as herein defined)
and, without duplication as to amounts upon which interest on this Note is otherwise accruing,
interest on all past due amounts from time to time remaining outstanding (howsoever such past due
amounts shall arise, whether by acceleration, default, the occurrence of the Stated Maturity Date
(as herein defined) or otherwise), both principal and, to the extent permitted by law, accrued
interest, at a rate per annum equal to the lesser of (y) the Past-Due Rate (as herein defined) and
(z) the Maximum Rate, both before and after any judgment and both before and after the commencement
of any proceeding under bankruptcy or other debtor relief laws or protections. Any increase or
decrease in the interest rate resulting from a change in the Contract Rate or the Maximum Rate
shall be effective immediately, without notice to Maker, when such change becomes effective.
Interest on this Note shall be calculated at a rate per annum based upon the actual number of days
elapsed over a year of 360 days, unless the Maximum Rate would thereby be exceeded, in which event,
to the extent necessary to avoid exceeding the Maximum Rate, interest on this Note shall be
calculated at a rate per annum based upon the actual number of days elapsed in the applicable
calendar year in which it accrued.
Recapture. Notwithstanding the foregoing, if during any period the Contract
Rate or the Past-Due Rate, as applicable, exceeds the Maximum Rate for the period of time in which
the Contract Rate or the Past-Due Rate, as applicable, would otherwise be in effect, the rate of
interest in effect on this Note shall be limited to the Maximum Rate during each such period, but
at all times thereafter the rate of interest in effect on this Note shall be the Maximum Rate until
the total amount of interest accrued on this Note equals the total amount of interest which would
have accrued on this Note if the Contract Rate or the Past-Due Rate, as applicable, had all times
been in effect for such applicable period.
Scheduled Payments. Unless acceleration of the maturity of this Note
pursuant to an Acceleration Event (as herein defined) shall have sooner occurred, and subject to
the payment of the mandatory prepayments as herein required, the principal of this Note, and all
accrued and unpaid interest thereon, shall be due and payable in full on August 2, 2010 (the
Stated Maturity Date). The interest on this Note shall be due and payable monthly as it accrues,
the payment of interest to be due and payable on the last day of each calendar month commencing
January 31, 2006 (each such date, an Interest Payment Date). Notwithstanding the foregoing,
interest accruing on past due amounts shall be due and payable on demand.
Mandatory Prepayments. Upon the occurrence of each Mandatory Prepayment
Event (as herein defined), Maker shall prepay this Note and related amounts as follows: (i) upon
the occurrence of a Change of Control (as herein defined), the entire outstanding principal amount
of, and all accrued interest on, this Note, and all accrued related costs and expenses, shall be
and become immediately due and payable; or (ii) upon the occurrence of a Debt Issuance or an Equity
Issuance (as each term is herein defined), as the case may be, this Note shall be and become due
and payable in an amount equal to the lesser of (A) the net proceeds received from such event and
(B) the then outstanding principal balance of this Note, and together therewith, the Maker shall
pay to Payee all accrued and unpaid interest on the amount of principal so paid, and, if
applicable, all related costs and expenses.
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Voluntary Prepayments. Maker shall have the right from time to time and at
any time to prepay, in whole or part, the unpaid principal balance of this Note, without premium or
penalty, in minimum principal amounts of $5.0 million and in multiples $1.0 million in excess
thereof or in the entire outstanding principal balance of this Note, as the case may be; provided
that together with Makers prepayment of such principal amount, Maker shall pay all interest
accrued and unpaid on the amount of such principal so paid.
Payment Administration. All payments on this Note shall be received by Payee
not later than 10:00 a.m. San Antonio, Texas time on the date on which such payments shall become
due (each such payment made after such time on such due date to be deemed to have been made on the
next succeeding Business Day). If the due date of any such payment would fall on a day that is not
a Business Day, such date shall be extended to the next succeeding Business Day, and interest shall
be payable for any principal so extended for the period of such extension. All payments and
prepayments on this Note shall be applied first to accrued interest, and the balance, if any, to
principal; but no such payment or prepayment shall defer or delay any payment then or thereafter
due on this Note.
Certain Definitions. For purposes of this Note, the following terms shall
have the respective meanings as follows:
Applicable Law means the law in effect, from time to time, applicable to the
transaction evidenced by this Note which lawfully permits the receipt, contracting for,
charging and collection of the highest permissible lawful, non-usurious rate of interest on
this Note and the transactions evidenced hereby, and arising in connection herewith,
including laws of the State of Texas and, to the extent controlling, the federal laws of
the United States of America. To the extent that Applicable Law is determined by reference
to Chapter 303 of the Texas Finance Code, as amended, the interest ceiling applicable
hereto and in connection herewith shall be the indicated (weekly) rate ceiling from time
to time in effect as referred to therein; provided, however, it is agreed that the terms
hereof, including the rate, or index, formula or provision of law used to compute the rate
in connection herewith, will be subject to the revisions as to current and future balances,
from time to time, pursuant to Applicable Law. It is further agreed that in no event shall
Chapter 346 of the Texas Finance Code, as amended, apply to this Note or the transactions
evidenced or contemplated by it.
Business Day means any day on which commercial banks are not required or authorized
to close in San Antonio, Texas.
CCO Shareholders Equity means, as of any date of determination, consolidated
shareholders equity of CCO and its subsidiaries as of the date determined in accordance
with GAAP.
CCU means Clear Channel Communications, Inc., a Texas corporation, and its
successors and assigns.
Change of Control means the date on which CCU ceases to control (i) the vote,
directly or indirectly, representing more than 50% of the aggregate voting equity interests
of Maker or of CCO, or their respective successors (any such entity, a Company) or (ii)
the ability to elect a majority of the directors of the board of directors of any Company,
whichever shall first occur.
Consolidated Funded Indebtedness has the meaning assigned in the Credit Facility, as
the Credit Facility is in effect on the date of this Note, subject, however, to the
following modifications: (i) references in such definition to Person and its
Subsidiaries shall mean and refer to CCO and its subsidiaries; (ii) in addition to the
categories of indebtedness enumerated in clauses (a) through (g) of such definition, such
definition shall further include a category of indebtedness as follows (which additional
category also shall be deemed referred to in clause (g) of such definition): all direct or
contingent obligations arising under letters of credit (including
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standby and commercial) and similar instruments, in each case (A) that are issued for
the account of, or for which any liability, contingent or direct, for the payment or
reimbursement thereof existed on, CCU or any of its subsidiaries (other than CCO and its
subsidiaries) and (B) that are issued to enhance the credit of, or to insure or otherwise
support payment or performance of any liability or obligation of, CCO or any of its
subsidiaries; and (iii) for the avoidance of doubt, capitalized terms used in such
definition are incorporated herein with the same meaning as defined in the Credit Facility,
in each case as the Credit Facility is in effect on the date of this Note.
Contract Rate means a variable per annum rate of interest equal to the
weighted-average cost of long-term debt of CCU during the period this Note is outstanding,
as such weighted-average cost is determined by CCU from time to time and for each
applicable period under this Note. A certificate of CCU as to such weighted-average cost
of for any period shall be conclusive proof of such cost, absent manifest error in the
mechanical calculation thereof.
Credit Facility means that certain Credit Agreement dated as of July 13, 2004, among
CCU, certain subsidiaries of CCU as offshore borrowers, Bank of America, N.A., as
administrative agent, and the lenders from time to time party thereto, as amended,
supplemented, replaced, restated or otherwise modified from time to time and in effect,
whether in whole or part or evidenced by one or more other agreements.
Debt Issuance means each issuance or incurrence of debt of any nature (public or
private) by Maker or its parent (other than CCU, if applicable), or any subsidiaries of
either of them, other than commercial debt for working capital purposes only or internal
financing from CCU or its designee, including cash management debt from time to time
outstanding.
Equity Issuance means each issuance of equity of any nature (public or private,
common, preferred or otherwise) by the Maker or its parent (other than CCU, if applicable),
or any subsidiaries of either of them, other than any one or more issuances of common stock
of CCO issued in relation to options granted by CCO to its employees or directors pursuant
to one or more employee or director stock option plans, as the case may be, duly approved
by CCOs board of directors.
Mandatory Prepayment Event means any of the occurrence of any of the following: (i)
a Change of Control; (ii) a Debt Issuance; or (iii) an Equity Issuance.
Maximum Rate means, on any day, the maximum lawful non-usurious rate of interest (if
any) which, under Applicable Law, Payee is permitted or authorized to contract for, charge,
collect, receive, reserve or take from or of Maker on the indebtedness evidenced by this
Note from time to time in effect, including changes in such Maximum Rate attributable to
changes under Applicable Law which permit a greater rate of interest to be contracted for,
charged, collected, received, reserved or taken as of the effective dates of the respective
changes; provided, however, to the extent that Applicable Law does not provide for such a
maximum rate, then during such periods and for the purpose of the second complete paragraph
of this Note, the term Maximum Rate shall mean a per annum rate equal to the Contract
Rate plus 10%.
Past-Due Rate means a variable per annum rate of interest equal to the sum of (i)
the Contract Rate plus (ii) 3%.
Permitted Liens means (i) each of the Liens described in Subsections 9.01(b) through
(e) (inclusive) of the Credit Facility, as the Credit Facility is in effect on the date of
this Note, (ii) Liens securing Swap Contracts of CCU and indebtedness permitted by
clause 2.1 of this Note, so long as, in each case, such Liens do not in the
aggregate secure indebtedness which, when aggregated with the aggregate amount of net sales
proceeds from Sale and Leaseback Transactions permitted by clause 2.4 of this Note,
exceeds an amount equal to 10% of total consolidated CCO Shareholders Equity (including
preferred stock) as shown on CCOs audited consolidated balance sheet contained in the most
recently prepared annual report delivered to stockholders of CCO and
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(iii) Liens described in Subsection 9.01(g) of the Credit Facility, as the Credit
Facility is in effect on the date of this Note, except that the phrase the Required Total
Lenders used therein shall be replaced by the term CCU.
Restricted Payment has the meaning assigned in the Credit Facility, as the Credit
Facility is in effect on the date of this Note, except that references in such definition
(i) to the Company shall mean Maker and (ii) to Subsidiaries shall mean subsidiaries of
Maker.
The following terms shall have the meanings assigned in the Credit Facility, in each case as the
Credit Facility is in effect on the date of this Note: Disposition; GAAP; Investment;
Lien; Person; Sale and Leaseback Transaction; and Swap Contracts. Terms otherwise defined
herein, whether expressly, by reference or otherwise, and used herein are so used as so defined.
Representations and Warranties. Maker represents and warrants the following
(each of which shall survive the execution and delivery of this Note and shall be cumulative and in
addition to any other representations and warranties that Maker shall now or hereafter give, or
cause to be given, to Payee):
1.1 Maker is a corporation duly organized and existing in good standing under the laws of
its jurisdiction of organization and is duly qualified as a foreign corporation and in
existence in good standing in all states or other jurisdictions where the nature and extent
of the business transacted by it or the ownership of its properties or assets makes such
qualification necessary, except for those jurisdictions in which the failure to so qualify
would not have a material adverse effect;
1.2 the execution, delivery and performance of this Note, the other Subject Documents (as
herein defined) and the transactions contemplated hereunder and thereunder (i) are within
the corporate powers and authority of Maker, (ii) have been duly authorized by all
requisite corporate action and (iii) are not (A) in violation of applicable law or the
terms of Makers organizational documentation, or (B) in breach of, or default under, any
indenture, agreement or undertaking to which Maker is a party or by which Maker or its
property is bound;
1.3 this Note and the other Subject Documents constitute legal, valid and binding
obligations of Maker enforceable against Maker in accordance with their respective terms;
and
1.4 no amounts evidenced hereby have been used for the purchase or carrying, directly or
indirectly, of any margin stock within the meaning of Regulations T, U or X of the Board
of Governors of the Federal Reserve System, as in effect from time to time.
Covenants. Maker covenants and agrees that, until all obligations evidenced
by, and provided for in, this Note are fully, finally and indefeasibly paid, it will not, and it
will not permit any of its subsidiaries to, directly or indirectly:
2.1 incur, create, issue, assume, guarantee or otherwise be or become liable for
(collectively, for this clause 2.1, incur) any Consolidated Funded Indebtedness,
in any manner, except, and so long as there exists neither a default under the Credit
Facility nor an Acceleration Event, both before and after giving effect to any such
incurrence, Consolidated Funded Indebtedness of Maker and its subsidiaries which, when
aggregated (without duplication) with the Consolidated Funded Indebtedness of CCO and its
subsidiaries and after giving effect to the incurrence thereof, will not exceed $400.0
million at any one time outstanding, provided that (i) intercompany indebtedness of any
Company or its subsidiaries to CCU, and (ii) guarantees of indebtedness primarily incurred
by CCU or a subsidiary of CCU, other than any Company or any of its subsidiaries, shall, in
each case, be excluded from Consolidated Funded Indebtedness of each Company and its
subsidiaries;
2.2 create, incur, assume or suffer or permit to exist any Lien on any of its assets or
properties, other than Permitted Liens in favor of, or expressly permitted by, Payee;
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2.3 make any Investment other than (i) Investments in cash equivalents, (ii) advances to
its employees for moving and travel expenses, drawing account and similar expenditures in
an annual amount not to exceed $5.0 million, (iii) intercompany Investments among CCO and
its wholly owned subsidiaries and (iv) Investments constituting endorsements of checks,
drafts and other similar instruments and documents, prepaid utilities, workmens
compensation and other similar deposits and prepaid expenses, in each case, so long as the
foregoing are Investments are made in the ordinary course of its business and in accordance
with its past practices and are not made during the existence of any default under the
Credit Facility or any Acceleration Event;
2.4 enter into any Sale and Leaseback Transaction, provided that so long as there exists
neither a default under the Credit Facility nor an Acceleration Event, both before and
after giving effect to any such transaction on the date such transaction is consummated, it
may enter into Sale and Leaseback Transactions in such amount that when the aggregate
amount of all net sale proceeds (without duplication) from Sale and Leaseback Transactions
of (i) it and its subsidiaries and (ii) CCO and its subsidiaries are aggregated with the
outstanding principal amount of all Consolidated Funded Indebtedness secured by Liens in
accordance with the clause (ii) of the defined term Permitted Liens, such
aggregate amount will not exceed an amount equal to 10% of total consolidated CCO
Shareholders Equity (including preferred stock) as shown on CCOs audited consolidated
balance sheet contained in the most recently prepared annual report delivered to its
stockholders;
2.5 merge, liquidate, dissolve or consolidate with and into another Person except that any
of Makers subsidiaries may merge with or consolidate into (i) Maker, if Maker is the
continuing or surviving Person or (ii) any other of Makers subsidiaries provided that in
any such transaction, the surviving Person shall be a wholly owned subsidiary of Maker;
2.6 make any Disposition of all or substantially all of its assets;
2.7 declare or make any Restricted Payment, or incur any obligations (contingent or
otherwise) to do so except that (i) it may make Restricted Payments to CCU and any other
Person that owns an equity interest in it which is a subsidiary of CCU, ratably according
to their respective holdings of the type of equity interest in respect to such respective
payments and (ii) it may declare and make dividend payments or other distributions payable
in its common stock;
2.8 enter into any transaction of any kind with any of its affiliates, whether or not in
the ordinary course of business, other than on fair and reasonable terms substantially as
favorable to it as would be obtained by it at the time in a comparable arms-length
transaction with a Person other than an affiliate of it, provided the foregoing
restrictions shall not apply to transactions between or among it and CCU or any
subsidiaries of CCU;
2.9 enter into any contractual obligation (other than this Note, any other Subject Document
and pursuant to the Credit Facility) pursuant to which its ability to (i) accept any waiver
or consent with respect to any provisions of this Note, any other Subject Document or the
Credit Facility or (ii) enter into any amendment, amendment and restatement, replacement or
the substitution of this Note, any other Subject Document or pursuant to Credit Facility,
is prohibited or limited in any manner; and
2.10 take any other action or omit or refrain from taking any action which foreseeably
could have the effect of impairing the ability of Maker timely and fully to pay and perform
its obligation under this Note or impair or prejudice the ability of Payee to exercise its
rights and remedies hereunder or with respect hereto.
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Default and Related Rights. Upon the occurrence of any of the following
events or occurrences, and inclusive of cure periods and/or notice provisions, if any, expressly
provided therefor, each of which is hereby designated an Acceleration Event, the Payee shall have
the rights and remedies provided for and/or referred to herein:
(A) | Maker fails to pay, when due, any principal hereof, whether at the Stated Maturity Date or upon the occurrence of any Mandatory Prepayment Event, or any accrued interest thereon which is due and payable on any of such dates; or | ||
(B) | Maker fails to pay, on any Interest Payment Date, any accrued interest or accrued expenses due on any of such dates, and such failure continues for 3 days thereafter; or | ||
(C) | any provision of this Note or any other Subject Document which shall evidence or represent a benefit, right, remedy or interest hereunder or thereunder shall, for any reason whatsoever, cease to be valid and binding on Maker or available to Payee (as applicable); or | ||
(D) | any representation or warranty made under, or in connection with, this Note or any other Subject Document is untrue or inaccurate in any material respect as of the date on which it is made; or | ||
(E) | (i) the failure to perform or breach of any covenant or agreement contained in or referred to in this Note or any other Subject Document, or the occurrence of an event or circumstance designated as a default or event of default, or words of similar import, under this Note or any other Subject Document or (ii) an event or condition occurs which would constitute a breach of any of clauses 2.1 through 2.10 of this Note, if CCO or any of its subsidiaries (other than Maker and its subsidiaries) was named as an entity covered by such clauses rather than any of Maker and its subsidiaries; or | ||
(F) | (i) default in the payment of any indebtedness (direct, guaranteed or otherwise) in excess of $25.0 million of CCO or any of its subsidiaries, or any joint indebtedness of any combination of them, or a default in respect of any note, loan agreement, credit agreement or security instrument relating to such indebtedness, or any such indebtedness becomes due before its stated maturity by acceleration or otherwise, (ii) a final judgment or order, or fine, for the payment of money, individually or in the aggregate with other such outstanding judgments, orders or fines for the payment of money, in excess of $25.0 million is entered against CCO or any of its subsidiaries, or any combination of them, or (iii) the delivery or forfeiture of property, individually or in the aggregate with other related deliveries or forfeitures, by CCO or any of its subsidiaries, or collectively by any combination of them, having a value in excess of $25.0 million; or | ||
(G) | CCO or any of its subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors, or any proceeding shall be instituted by or against CCO or any of its subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property, and in the case of any such proceedings instituted against CCO or any of its subsidiaries (but not instituted by it), either such proceedings shall remain undismissed or unstayed for a period of 30 days or any of the actions sought in such proceedings shall occur; or the CCO or any of its subsidiaries shall take any action to authorize any of the actions set forth above in this clause (G); |
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then, upon the occurrence of any of the events or occurrences specified in the foregoing
clauses (A), (B), (C), (D), (E) or (F), the Payee at its option may exercise any of the
rights and remedies contained in, or referred to by, this Note or any other Subject Document and
any other rights and remedies available at law or in equity, as Payee in its sole discretion shall
elect, including, without limitation, declaring the entire outstanding and unpaid principal balance
of this Note and all interest accrued and unpaid thereon, and all other earned amounts payable
under or in connection with this Note, to be forthwith due and payable, whereupon such principal
balance of this Note, all such interest and all such other amounts shall become and be forthwith
due and payable without presentment, demand, protest, notice of dishonor or further notice of any
kind (including, without limitation, notice of default, notice of intent to accelerate maturity and
notice of acceleration of maturity), all of which are hereby expressly waived by the Maker;
provided, however, that with respect to the occurrence of any of the events or occurrences
specified in the foregoing clause (G), the entire outstanding and unpaid principal balance
of this Note, all interest accrued and unpaid thereon, and all such other earned amounts payable
under or in connection with this Note, shall automatically become and be immediately due and
payable, without presentment, demand, protest, or any notice of any kind (including, without
limitation, notice of default, notice of intent to accelerate maturity and notice of acceleration
of maturity), all of which are hereby expressly waived by the Maker.
Collection Costs. If this Note is collected by suit or through the
bankruptcy court or any judicial proceeding, or if this Note is not paid at maturity, howsoever
such maturity may occur, and it is placed in the hands of an attorney for collection (whether or
not suit or other legal proceedings are commenced by such attorney), then Maker agrees to pay, in
addition to all other amounts owing hereunder, all collection and enforcement costs and expenses
and reasonable attorneys fees of Payee.
Compliance with Applicable Law. It is the intent of Payee and Maker in the
execution and performance of this Note and every other document now or hereafter securing or
otherwise relating to this Note (collectively, the Subject Documents) to remain in strict
compliance with Applicable Law from time to time in effect. In furtherance thereof, Payee and
Maker stipulate and agree that none of the terms and provisions contained in any Subject Document
shall ever be construed to create a contract to pay for the use, forbearance or detention of money
with interest at a rate or in an amount in excess of the Maximum Rate or maximum amount of interest
permitted or allowed to be contracted for, charged, received, taken or reserved under Applicable
Law. For purposes of this Note and each other Subject Document, interest shall include the
aggregate of all amounts which constitute or are deemed to constitute interest under Applicable Law
which are contracted for, taken, charged, reserved, received or paid under this Note or any other
Subject Document. Maker shall never be required to pay unearned interest and shall never be
required to pay interest at a rate or in an amount in excess of the Maximum Rate or maximum amount
of interest that may be lawfully contracted for, charged, received, taken or reserved under
Applicable Law, and the provisions of this paragraph shall control over all other provisions of
this Note and each other Subject Document, which may be in actual or apparent conflict herewith.
If the maturity of this Note is accelerated for any reason, or if under any other contingency the
interest effective rate or amount of interest which would otherwise be payable under this Note or
any other Subject Document would exceed the Maximum Rate or maximum amount of interest Payee is
permitted or allowed by Applicable Law to charge, contract for, take, reserve or receive, or in the
event Payee shall charge, contract for, take, reserve or receive monies that are deemed to
constitute interest which would, in the absence of this provision, increase the effective interest
rate or amount of interest payable under this Note or any other Subject Document to a rate or
amount in excess of that permitted or allowed to be charged, contracted for, taken, reserved or
received under Applicable Law then in effect, then the principal amount of this Note or the amount
of interest which would otherwise be payable under this Note, or both, shall be reduced to the
amount allowed under Applicable Law as now or hereinafter construed by the courts having
jurisdiction, and all such monies so charged, contracted for, taken, reserved or received that are
deemed to constitute interest in excess of the Maximum Rate or maximum amount of interest permitted
by Applicable Law shall immediately be returned to or credited to the account of Maker upon such
determination. Payee and Maker further stipulate and agree that, without limitation of the
foregoing, all calculations of the rate or amount of interest contracted for, charged, taken,
reserved or received under this Note or any other Subject Document which are made for the purpose
of determining whether such rate or amount exceeds the Maximum Rate, shall be made to the extent
not prohibited by Applicable Law, by amortizing, prorating, allocating and
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spreading during the period of the full stated term of this Note, all interest hereon at any
time contracted for, charged, taken, reserved or received from Maker or otherwise by Payee.
Reinstatement. To the extent that the Maker makes a payment or payments to
the Payee or the Payee enforces any lien, security interest, encumbrance, guaranty or claim, and
such payment or payments or the proceeds of such enforcement, or any part thereof, are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or other person or entity under any law or equitable cause, then, to the extent
of such recovery, the obligation or part thereof originally intended to be satisfied, and all
rights, remedies and liens therefor, shall be revived and shall continue in full force and effect
as if such payment had not been made or such enforcement had not occurred.
Certain Waivers, Etc. Maker and all sureties, indorsers, endorsers and
guarantors of this Note severally waive grace, notice of non-payment, presentment, demand,
presentment for payment, protest, notice of protest, notice of dishonor or default, notice of
intent to accelerate maturity, notice of acceleration of maturity and all other such notices,
filing of suit and diligence in collecting and bringing suit on this Note or enforcing any of the
security herefor, and agree to any substitution, exchange or release of any such security, the
release of any party primarily or secondarily liable hereon and further agree that it will not be
necessary for Payee, in order to enforce payment of this Note, to first institute suit or exhaust
its remedies against any security herefor, and consent to any one or more extensions, renewals,
rearrangements, partial payments, or postponements of time of payment of this Note on any terms or
any other indulgences with respect hereto, without notice thereof to any of them. The nonexercise
or delay by Payee of any of its rights, remedies or powers hereunder or with respect hereto in any
particular instance shall not constitute a waiver thereof in that or any subsequent instance.
Neither a single or partial exercise of any such right, remedy or power by the Payee, nor any
abandonment or discontinuance of steps to enforce such right, remedy or power, shall preclude any
other or further exercise thereof or the exercise of any other right, remedy or power. No course
of dealing between the Payee and the Maker shall operate as a waiver of any right, remedy or power
of the Payee.
Successor and Assigns. This Note may be assigned, in whole or part, by Payee
without consent of, or notice to, Maker. The provisions of the Note shall be binding upon and
inure to the benefit of Payee and Maker and their respective successors and assigns permitted
hereby, except Maker may not assign or otherwise transfer any of its rights or obligations
hereunder or with respect hereto without the prior written consent of Payee and, if applicable,
compliance with all related conditions and requirements, if any, imposed by Payee.
Indemnification. Maker will indemnify and hold harmless Payee and its
affiliates, and its and their respective shareholders, members, partners, directors, officers,
employees, agents and advisors (collectively, the Indemnified Persons) from and against any and
all losses, liabilities, claims, damages or expenses arising out of, or relating to, this Note or
the transactions related thereto. This indemnification shall survive the payment of this Note and
shall continue for the benefit of each and all Indemnified Persons.
Costs and Expenses. As a obligation and undertaking of Maker distinct from
its obligation to pay the principal of, and accrued interest on, this Note, Maker will pay to Payee
all reasonable costs and expenses incurred by or on behalf of Payee associated with the
preparation, due diligence, administration, enforcement and maintenance of this Note, including
(without duplication of the amounts included in the weighted-average cost of debt of CCU included
in the Contract Rate) internal costs and expenses, overhead allocations and externally incurred
costs and expenses, which costs and expenses shall be due and payable monthly on each Interest
Payment Date; provided, however, all such costs and expenses then accrued shall be and become due
and payable on any date that a prepayment hereon will result in the payment of the entire
outstanding principal amount of this Note.
Submission to Jurisdiction, Etc. To the maximum extent not expressly
prohibited by applicable law from time to time in effect, Maker hereby knowingly, voluntarily and
intentionally (and after it has consulted with its own attorney) irrevocably and unconditionally::
8
(i) submits for itself and its property in any legal action or proceeding relating to
this Note or any other Subject Documents or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the courts of Bexar
County, Texas, the courts of the United States of America for the Western District of
Texas, San Antonio Division, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such courts, and
waives any objection that it may now or hereafter have to the venue or any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service or process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail, return receipt requested (or any
substantially similar form of mail), postage prepaid, to such person at its address
referred to by its signature below, or at such other address or addresses of which Payee
shall have been notified pursuant hereto;
(iv) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(v) in recognition that it may be entitled to a trial in which matters of fact are
determined by a jury (as opposed to a trial in which such matters are determined by a
presiding judge), waives any right it may have to a trial by jury in respect to any
litigation directly or indirectly at any time arising out of, under, or in conjunction
with, this Note or any other Subject Documents, or any of the transactions provided for
herein or therein or contemplated hereby or thereby, whether before or after maturity and
whether or not commenced by or against it.
[Remainder of Page Intentionally Left Blank]
9
Governing Law. This Note shall be governed by, construed and enforced in
accordance with, the internal laws of the State of Texas and, to the extent controlling, applicable
federal laws of the United States of America; provided, however, in no event shall Chapter 346 of
the Texas Finance Code, as amended and in effect, apply to this Note or any transaction provided
herein or contemplated hereby.
Clear Channel Outdoor, Inc. |
||||
By /s/ Brian Coleman | ||||
Name: | Brian Coleman | |||
Title: | Senior Vice president Treasurer |
10
Pursuant to this endorsement and by its execution hereof, the undersigned hereby, effective as
of the original date of this Note, (i) represents that (a) it is the full legal and equitable owner
and holder of this Note and of all title, interests, privileges, rights and benefits therein and
thereto and (b) there are no claims or defenses to its payment or performance by or through the
Maker and (ii) irrevocably and unconditionally (a) conveys, transfers and assigns to Clear Channel
Holdings, Inc. and its successors and assigns (collectively, the Initial Assignee), all legal and
equitable title, interests, privileges, rights and benefits in and to the Note, including without
limitation, the right to receive all payments of this Note and to enforce this Note, (b) instructs
and directs the Maker (1) to pay to the order of the Initial Assignee all amounts, sums and monies
now, heretofore and hereafter due and owing or becoming due and owing under or by virtue of this
Note, on the terms of this Note, and (2) to perform all other covenants, agreements and
undertakings set forth in this Note for the benefit and at the direction of the Initial Assignee,
and (c) promises, as an endorser, to that if this Note is dishonored, it will pay the amount due in
this Note according to the terms of this Note at the time of this endorsement, or if such terms are
modified subsequent thereto, as so modified and in effect from time to time, subject to, among
other terms, the terms set forth in the paragraph in the Note under the caption Certain Waivers,
Etc., all of the forging intending to bestow on the Initial Assignee all legal and equitable
title, interests, privileges, rights and benefits in and to the Note.
Clear Channel Outdoor Holdings, Inc |
||||
By /s/ Brian Coleman | ||||
Name: | Brian Coleman | |||
Title: | Senior Vice President - Treasurer | |||
Pursuant to this endorsement and by its execution hereof, the undersigned hereby, effective as of
the original date of this Note, (i) represents that (a) it is the full legal and equitable owner
and holder of this Note and of all title, interests, privileges, rights and benefits therein and
thereto and (b) there are no claims or defenses to its payment or performance by or through the
Maker and (ii) irrevocably and unconditionally (a) conveys, transfers and assigns to Clear Channel
Communications, Inc. and its successors and assigns (collectively, the Second Assignee), all
legal and equitable title, interests, privileges, rights and benefits in and to the Note, including
without limitation, the right to receive all payments of this Note and to enforce this Note, (b)
instructs and directs the Maker (1) to pay to the order of the Second Assignee all amounts, sums
and monies now, heretofore and hereafter due and owing or becoming due and owing under or by virtue
of this Note, on the terms of this Note, and (2) to perform all other covenants, agreements and
undertakings set forth in this Note for the benefit and at the direction of the Second Assignee,
and (c) promises, as an endorser, to that if this Note is dishonored, it will pay the amount due in
this Note according to the terms of this Note at the time of this endorsement, or if such terms are
modified subsequent thereto, as so modified and in effect from time to time, subject to, among
other terms, the terms set forth in the paragraph in the Note under the caption Certain Waivers,
Etc., all of the forging intending to bestow on the Second Assignee all legal and equitable title,
interests, privileges, rights and benefits in and to the Note.
Clear Channel Holdings, Inc |
||||
By /s/ Brian Coleman | ||||
Name: | Brian Coleman | |||
Title: | Senior Vice President - Treasurer | |||