Execution Version
Exhibit 10.4
BT
Triple Crown Merger Co., Inc.
(to be merged with and into
Clear Channel Communications, Inc.)
$980,000,000
10.75% Senior Cash Pay Notes due 2016
$1,330,000,000
11.00%/11.75% Senior Toggle Notes due 2016
PURCHASE AGREEMENT
May 13, 2008
DEUTSCHE
BANK SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
CREDIT SUISSE SECURITIES (USA) LLC
GREENWICH CAPITAL MARKETS, INC.
WACHOVIA CAPITAL MARKETS, LLC
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
BT
Triple Crown Merger Co., Inc., a Delaware corporation (“
Merger Sub ”), proposes to sell to the several parties
named in Schedule I hereto (each an “ Initial
Purchaser ” and together, the “ Initial
Purchasers ”) $980,000,000 aggregate principal amount of
its 10.75% senior cash pay notes due 2016 (the “ Senior
Cash Pay Notes ”) and $1,330,000,000 aggregate principal
amount of its 11.00%/11.75% senior toggle notes due 2016 (the
“ Senior Toggle Notes ” and, together with the
Senior Cash Pay Notes, the “ Notes ”). The Notes
will be issued by Clear Channel Communications, Inc., a Texas
corporation (the “ Company ”), pursuant to an
indenture (the “ Indenture ”), to be dated as of
the Closing Date (as defined below), containing the terms set forth
in the “Description of Notes” attached as
Exhibit A hereto (and such other provisions
substantially in the form of the Indenture, dated as of October 26,
2006, among West Corporation, the guarantors signatory thereto and
The Bank of New York, the Indenture, dated as of October 31,
2006, among Michaels Stores, Inc., the guarantors signatory thereto
and Wells Fargo Bank, National Association, or otherwise usual and
customary in recent high yield indentures for the sponsors of the
portfolio companies under those indentures (the “
Sponsors ”), in each case, as determined by
Merger Sub in its sole judgment), among the Company, Law Debenture
Trust Company of New York, as trustee (the “ Trustee
”), and Deutsche Bank Trust Company Americas, as paying agent
and registrar (“ Paying Agent ”), or such other
Trustee and/or Paying Agent as may be selected by the
Company.
The
Notes will be initially guaranteed (the “ Guarantees
” and, together with the Notes, the “ Securities
”) by each of the wholly-owned domestic subsidiaries of the
Company which are guarantors under the Senior Secured Credit
Facilities (collectively, the “ Guarantors ”) on
an unsecured basis and will be subordinated only to the
Guarantors’ guarantees under the Senior Secured Credit
Facilities. The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of
1933, as amended (the “ Act ”), in reliance on
exemptions therefrom.
The
Securities are being issued and sold as part of the financing
necessary to effect the Transactions (as defined below), including
the merger (the “ Merger ”) of Merger Sub with
and into the Company, with the Company as the surviving entity. The
Merger will be effected pursuant to an agreement and plan of merger
(the “ Merger Agreement ”), dated as of
November 16, 2006, as amended on April 18, 2007,
May 17, 2007 and the date hereof, among Merger Sub, B Triple
Crown Finco, LLC, a Delaware limited liability company, T Triple
Crown Finco, LLC, a Delaware limited liability company, CC Media
Holdings, Inc. (formerly known as BT Triple Crown Capital Holdings
III, Inc.), a Delaware corporation, and the Company. For the
purposes of this Agreement, the term “Transactions” has
the same meaning given to such term in the Senior Secured Credit
Agreements.
Substantially
concurrently with the consummation of the Merger, the Company shall
become party to this Purchase Agreement (this “
Agreement ”) pursuant to a joinder agreement
substantially in the form of the joinder agreement attached as
Annex A hereto (the “ Joinder Agreement
”). The representations, warranties and agreements of the
Company shall become effective on and as of the Merger, and the
representations, warranties and agreements of the Guarantors shall
become effective on and as of the execution by the Guarantors of a
joinder to this Agreement, substantially in the form of the Joinder
Agreement (but if specified to be given as of a prior specified
date, shall be given as of such date). Certain other terms used
herein are defined in Section 16 hereof.
1.
Representations and Warranties . As of the date hereof,
Merger Sub, the Company and the Guarantors jointly and severally
represent and warrant to each of the Initial Purchasers as follows
(in the case of any representation or warranty made by Merger Sub
regarding the Company or any Guarantor, any such representation or
warranty shall be to the knowledge of Merger Sub, and in the case
of any representation or warranty made by the Company and the
Guarantors regarding Merger Sub, any such representation or
warranty shall be to the knowledge of the Company and such
Guarantors; capitalized terms used in this Section 1 and not
otherwise defined in this Agreement shall have the meanings
assigned thereto in the Senior Secured Credit Agreements):
(a) Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained
in Section 4 and their compliance with the agreements set
forth
-2-
therein, none
of Merger Sub, the Company, any Guarantor, nor any of their
respective subsidiaries or their respective Affiliates, nor any
person acting on their behalf, has, directly or indirectly, made
offers or sales of, or solicited offers to buy, any security under
circumstances that would require the registration of the Securities
under the Act.
(b) Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained
in Section 4 and their compliance with the agreements set
forth therein, none of Merger Sub, the Company, any Guarantor, nor
any of their respective subsidiaries nor any of their respective
Affiliates, nor any person acting on their behalf, has:
(i) engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection
with any offer or sale of the Securities or (ii) engaged in any
directed selling efforts (within the meaning of Regulation S)
with respect to the Securities; and Merger Sub, the Company and the
Guarantors and each of their respective subsidiaries and each of
their respective Affiliates and each person acting on their behalf
has complied with the offering restrictions requirement of
Regulation S. Any sale of the Securities by Merger Sub
pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Act.
(c) The Securities satisfy the
eligibility requirements of Rule 144A(d)(3) under the
Act.
(d) Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained
in Section 4 and their compliance with the agreements set
forth therein, no registration of the Securities under the Act is
required for the offer and sale of the Securities to the Initial
Purchasers or by the Initial Purchasers to the initial purchasers
therefrom, in each case in the manner contemplated herein, and it
is not necessary to qualify the Indenture under the Trust Indenture
Act. The Indenture, as of the Closing Date, will conform in all
material respects to the requirements of the Trust Indenture
Act.
(e) None of Merger Sub, the Company,
any Guarantor or any of their respective subsidiaries is or, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as contemplated by the Merger
Agreement, will be an “investment company” as defined
in the Investment Company Act and the rules and regulations
promulgated thereunder.
(f) None of Merger Sub, the Company,
any Guarantor or any of their respective subsidiaries has paid or
agreed to pay to any person any compensation for soliciting another
to purchase any Securities (except as contemplated in this
Agreement).
(g) None of Merger Sub, the Company,
any Guarantor nor any of their respective subsidiaries or their
respective Affiliates has taken or will take, directly or
indirectly, any action designed to or that has constituted or that
would reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of
any security of Merger Sub or the Company or any of their
respective subsidiaries to facilitate the sale or resale of the
Securities.
-3-
(h) None of Merger Sub, the Company
or any Guarantor is engaged nor will it engage principally in the
business of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock, and no proceeds
of any issuance of Securities will be used for any purpose that
violates Regulation U.
Any
certificate signed by any officer of Merger Sub, the Company or the
Guarantors and delivered to the Initial Purchasers or counsel for
the Initial Purchasers in connection with the offering of the
Securities and, when issued, the Guarantees shall be deemed a joint
and several representation and warranty by each of Merger Sub, the
Company and the Guarantors as to matters covered thereby, to each
Initial Purchaser.
2.
Purchase and Sale . Merger Sub (subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth) agrees to issue and sell to each Initial
Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from Merger Sub, at a purchase price of
(A) 98.0% of the principal amount thereof, the principal
amount of Senior Cash Pay Notes set forth opposite such Initial
Purchaser’s name in Schedule I hereto and
(B) 98.0% of the principal amount thereof, the principal
amount of Senior Toggle Notes set forth opposite such Initial
Purchaser’s name in Schedule I hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made at the offices of Ropes & Gray LLP,
1211 Avenue of the Americas, New York, New York 10036, on the date
on which the conditions set forth in Section 6 of this
Agreement are satisfied, which date and time may be postponed by
agreement between the Initial Purchasers and Merger Sub (such date
and time of delivery and payment for the Securities being herein
called the “ Closing Date ”). Delivery of the
Senior Cash Pay Notes and the Senior Toggle Notes shall be made to
the Initial Purchasers for the respective accounts of the several
Initial Purchasers against payment by the several Initial
Purchasers through the Initial Purchasers of the purchase price
thereof in accordance with the Settlement Agreement, or if the
Settlement Agreement does not specify payment instructions for the
Senior Cash Pay Notes and Senior Toggle Notes, upon the order of
Merger Sub or the Company. Delivery of the Senior Cash Pay Notes
and the Senior Toggle Notes shall be made through the facilities of
The Depository Trust Company unless the Initial Purchasers shall
otherwise instruct.
4.
Offering by Initial Purchasers .
(a) Each
Initial Purchaser acknowledges that the Securities have not been
and will not be registered under the Act and may not be offered or
sold within the United States or to, or for the account or benefit
of, U.S. persons, except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Act.
(b) Each
Initial Purchaser, severally and not jointly, represents and
warrants to and agrees with Merger Sub and the Company that:
(i) it has not offered or sold, and
will not offer or sell, any Securities within the United States or
to, or for the account or benefit of, U.S. persons (x) as part
of their
-4-
distribution at any time or
(y) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date except:
(A) to
those persons whom it reasonably believes to be “qualified
institutional buyers” (as defined in Rule 144A under the
Act) or if any such person is buying for one or more institutional
accounts for which such person is acting as a fiduciary or agent,
only when such person has represented to it that each such account
is a qualified institutional buyer to whom notice has been given
that such sale or delivery is being made in reliance on
Rule 144A and, in each case, in transactions in accordance
with Rule 144A or
(B) in
accordance with Rule 903 of Regulation S;
(ii) neither it nor any person acting
on its behalf has made or will make offers or sales of the
Securities in the United States by means of any form of general
solicitation or general advertising (within the meaning of
Regulation D) in the United States or in any manner involving
a public offering within the meaning of Section 4(2) of the
Act;
(iii) in connection with each sale
pursuant to Section 4(b)(i)(A), it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on
Rule 144A;
(iv) neither it, nor any of its
Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Securities;
(v) it has not entered and will not
enter into any contractual arrangement with any distributor (within
the meaning of Regulation S) with respect to the distribution
of the Securities, except with its Affiliates or with the prior
written consent of Merger Sub;
(vi) it and its Affiliates and any
person acting on its behalf have complied and will comply with the
offering restrictions requirement of Regulation S;
(vii) at or prior to the confirmation
of sale of Securities sold in reliance of Regulation S (other
than a sale of Securities pursuant to Section 4(b)(i)(A) of
this Agreement), it shall have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration
that purchases Securities from it during the distribution
compliance period (within the meaning of Regulation S) a
confirmation or notice to substantially the following effect:
| |
|
|
“The Securities covered
hereby have not been registered under the U.S. Securities Act of
1933, as amended (the “ Act ”), and may not be
offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the date of closing
of the offering, except in either case in accordance with
|
-5-
| |
|
|
Regulation S or Rule 144A
under the Act. Terms used in this paragraph have the meanings given
to them by Regulation S”; and
|
(viii) it is an institutional
“accredited investor” (as defined in Rule 501(a) of
Regulation D).
5.
Agreements . Merger Sub and, after the Closing Date, the
Company and the Guarantors, jointly and severally agree, in each
case, with each Initial Purchaser as follows:
(a) Within five Business Days
following the Closing Date, the Company and each of the Guarantors
will use commercially reasonable efforts to enter into a
Registration Rights Agreement with the Initial Purchasers
substantially in the form attached hereto as Exhibit B
(the “ Registration Rights Agreement ”).
(b) Within five Business Days
following the Closing Date (unless otherwise agreed to by each of
the Guarantors, the Company and the Initial Purchasers), the
Company and each of the Guarantors will use commercially reasonable
efforts to deliver opinions and advice letters, as the case may be,
of (i) Ropes & Gray LLP, counsel for Merger Sub, the
Company and those Guarantors organized or incorporated in the state
of Delaware, California and Massachusetts, substantially in the
form of Exhibit C hereto, (ii) Texas counsel to
the Company and Guarantors, substantially in the form of
Exhibit D hereto, (iii) Colorado counsel to the
Guarantors, substantially in the form of Exhibit E
hereto, (iv) Florida and New Jersey counsel to the Guarantors,
substantially in the form of Exhibit F hereto, (v)
Nevada counsel to the Guarantors, substantially in the form of
Exhibit G hereto, (vi) Colorado counsel to the
Guarantors, substantially in the form of Exhibit H
hereto, (vii) Washington counsel to the Guarantors,
substantially in the form of Exhibit I hereto, and
(viii) special regulatory counsel to the Company,
substantially in the form of Exhibit J hereto and, in
each case, with appropriate modifications to reflect the structure
and terms of the Transactions; provided that it is
understood by the parties that the drafts are subject to change
should the Company or Merger Sub elect to engage local or FCC
counsel which differ from those set forth on Exhibit D
through J .
(c) Within five Business Days
following the Closing Date (unless otherwise agreed to by each of
the Guarantors and the Initial Purchasers), each of the Guarantors
shall have entered into the Joinder Agreement, and the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(d) Within five Business Days
following the Closing Date (unless otherwise agreed to by each of
the Guarantors and the Initial Purchasers), each of the Guarantors
shall have entered into a supplemental indenture to the Indenture,
and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(e) During the period from the
Closing Date until two years after the Closing Date, the Company
will not, and will not permit any of its Affiliates to, resell any
Securities that have been acquired by any of them except for
Securities resold in a transaction registered under the Act.
-6-
(f) Merger Sub and any person acting
on its behalf will not, and up to the Closing Date, Merger Sub will
use its commercially reasonable efforts to cause the Company and
the Guarantors not to, make offers or sales of any security (as
defined in the Act), or solicit offers to buy any security, under
circumstances that could be integrated with the sale of the
Securities in a manner that would reasonably be expected to require
the registration of the Securities under the Act.
(g) Except in connection with the
Exchange Offer (as defined in the Registration Rights Agreement) or
the Shelf Registration Statement (as defined in the Registration
Rights Agreement), Merger Sub, the Company, the Guarantors and any
person acting on their behalf will not engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the
Securities in the United States.
(h) So long as any of the Securities
are “restricted securities” within the meaning of
Rule 144(a)(3) under the Act, Merger Sub, the Company, the
Guarantors and their respective subsidiaries will, unless they
become subject to and comply with Section 13 or 15(d) of the
Exchange Act or file the periodic reports contemplated by such
provisions pursuant to the terms of the Indenture, provide to each
holder of such restricted securities and to each prospective
purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective
purchaser, any information required to be provided by
Rule 144A(d)(4) under the Act (it being acknowledged and
agreed that, prior to the first date on which information is
required to be provided under the Indenture, the information of the
type and scope contained in the Draft Offering Memorandum (as
defined in Section 15 hereof) is sufficient for this purpose).
This covenant is intended to be for the benefit of the holders, and
the prospective purchasers designated by such holders, from time to
time of such restricted securities.
(i) Merger Sub, the Company, the
Guarantors and any person acting on their behalf will not engage in
any directed selling efforts with respect to the Securities, and
each of them will comply with the offering restrictions requirement
of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(j) Merger Sub and the Company will
cooperate with the Initial Purchasers and use their commercially
reasonable efforts to (i) permit the Senior Cash Pay Notes and
the Senior Toggle Notes to be designated PORTAL Market securities
in accordance with the rules and regulations adopted by the NASD
relating to trading in the PORTAL Market and (ii) permit the
Senior Cash Pay Notes and the Senior Toggle Notes to be eligible
for clearance and settlement through The Depository Trust
Company.
(k) The Company (which is permitted
to consummate its pending tender offer), its Affiliates (apart from
Clear Media Limited, which is permitted to issue equity and debt
securities, including conversion and puts of such securities, Clear
Channel Outdoor Holdings, Inc. and its subsidiaries, which are
permitted to issue up to $400 million aggregate principal
amount of public debt, and AMFM Operating Inc., which is
-7-
permitted to
consummate its pending tender offer, and the Sponsors and their
Affiliates (other than the Company and its subsidiaries)) and the
Guarantors will not, for a period of 90 days following the
Closing Date, without the prior written consent of DBSI, offer,
sell or contract to sell, pledge or otherwise dispose of (or enter
into any transaction that is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company, any of the Guarantors or
any of their respective Affiliates (other than the Sponsors and
their Affiliates (other than the Company and its subsidiaries)) or
any person in privity with the Company, any of the Guarantors or
any of their respective Affiliates), directly or indirectly, or
announce the offering of, any capital markets debt securities
issued or guaranteed by the Company or any of the Guarantors (other
than the Securities and the Guarantees).
(l) If the Closing Date occurs,
Merger Sub, the Company and the Guarantors, jointly and severally,
agree to pay the costs and expenses relating to the following
matters: (i) the fees of the Trustee (and its counsel);
(ii) the preparation, printing or reproduction of any
customary offering memorandum (including the Offering Memorandum
referred to in Section 15 hereof) and any amendment or
supplement thereto; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of any offering memorandum,
and all amendments or supplements thereto, as may be reasonably
requested for use in connection with the offering and sale of the
Securities; (iv) any stamp or transfer taxes in connection
with the original issuance and sale of the Securities; (v) the
printing (or reproduction) and delivery of any blue sky memorandum
to investors in connection with the offering of the Securities;
(vi) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several
states and any other jurisdictions specified pursuant to Section
5(e) (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers r
|
