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JACOR COMMUNICATIONS COMPANY
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
PARENT GUARANTOR
AND
UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY
GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK
TRUSTEE
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INDENTURE
Dated as of June 17, 1997
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$150,000,000
83/4% Senior Subordinated Notes due 2007
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . 1
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA. . . . . . . . . . 29
SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . 30
ARTICLE II
THE SECURITIES . . . . . . . . . . . 30
SECTION 2.1. Form and Dating. . . . . . . . . . . . . . . . . . . 30
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . 31
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . 32
SECTION 2.4. Paying Agent to Hold Assets
in Trust. . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . 34
SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . 35
SECTION 2.7. Replacement Securities . . . . . . . . . . . . . . . 42
SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . 42
SECTION 2.9. Treasury Securities. . . . . . . . . . . . . . . . . 43
SECTION 2.10. Temporary Securities . . . . . . . . . . . . . . . . 43
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . 44
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . 44
SECTION 2.13. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . 46
ARTICLE III
REDEMPTION . . . . . . . . . . . . 46
SECTION 3.1. Right of Redemption. . . . . . . . . . . . . . . . . 46
SECTION 3.2. Notices to Trustee and
Paying Agent. . . . . . . . . . . . . . . . . . . 46
SECTION 3.3. Selection of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . 47
SECTION 3.4. Notice of Redemption . . . . . . . . . . . . . . . . 47
SECTION 3.5. Effect of Notice of Redemption . . . . . . . . . . . 49
SECTION 3.6. Deposit of Redemption Price. . . . . . . . . . . . . 49
SECTION 3.7. Securities Redeemed in Part. . . . . . . . . . . . . 50
i
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ARTICLE IV
COVENANTS. . . . . . . . . . . . . 50
SECTION 4.1. Payment of Securities. . . . . . . . . . . . . . . . 50
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . 50
SECTION 4.3. Limitation on Restricted Payments. . . . . . . . . . 51
SECTION 4.4. Corporate Existence. . . . . . . . . . . . . . . . . 52
SECTION 4.5. Payment of Taxes and Other Claims. . . . . . . . . . 53
SECTION 4.6. Maintenance of Properties
and Insurance . . . . . . . . . . . . . . . . . . 53
SECTION 4.7. Compliance Certificate; Notice
of Default. . . . . . . . . . . . . . . . . . . . 54
SECTION 4.8. Reports. . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.9. Limitation on Status as
Investment Company. . . . . . . . . . . . . . . . 55
SECTION 4.10. Limitation on Transactions
with Affiliates . . . . . . . . . . . . . . . . . 56
SECTION 4.11. Limitation on Incurrence of
Additional Indebtedness and
Disqualified Capital Stock. . . . . . . . . . . . 56
SECTION 4.12 Limitations on Dividends
and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . 57
SECTION 4.13. Limitations on Layering
Indebtedness; Liens . . . . . . . . . . . . . . . 58
SECTION 4.14. Limitation on Sale of Assets
and Subsidiary Stock. . . . . . . . . . . . . . . 59
SECTION 4.15. Limitation on Asset Swaps. . . . . . . . . . . . . . 65
SECTION 4.16. Limitation on Lines of Business. . . . . . . . . . . 65
SECTION 4.17. Restriction on Sale and Issuance
of Subsidiary Stock . . . . . . . . . . . . . . . 66
SECTION 4.18. Waiver of Stay, Extension or
Usury Laws. . . . . . . . . . . . . . . . . . . . 66
SECTION 4.19. 144A Information Requirement . . . . . . . . . . . . 66
ARTICLE V
SUCCESSOR CORPORATION. . . . . . . . . . 67
SECTION 5.1. Limitation on Merger, Sale or
Consolidation . . . . . . . . . . . . . . . . . . 67
SECTION 5.2. Successor Corporation Substituted. . . . . . . . . . 68
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . 64
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . 68
SECTION 6.2. Acceleration of Maturity Date;
Rescission and Annulment. . . . . . . . . . . . . 70
SECTION 6.3. Collection of Indebtedness
and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . 72
SECTION 6.4. Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.5. Trustee May Enforce Claims
Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . 74
SECTION 6.6. Priorities . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.7. Limitation on Suits. . . . . . . . . . . . . . . . . 75
SECTION 6.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . 76
SECTION 6.9. Rights and Remedies Cumulative . . . . . . . . . . . 76
SECTION 6.10. Delay or Omission Not Waiver . . . . . . . . . . . . 77
SECTION 6.11. Control by Holders . . . . . . . . . . . . . . . . . 77
SECTION 6.12. Waiver of Past Default . . . . . . . . . . . . . . . 77
SECTION 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . 78
SECTION 6.14. Restoration of Rights and
Remedies. . . . . . . . . . . . . . . . . . . . . 79
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . 79
SECTION 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . 79
SECTION 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . 81
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . 82
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . 82
SECTION 7.5. Notice of Default. . . . . . . . . . . . . . . . . . 83
SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . 83
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . 83
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . 85
SECTION 7.9. Successor Trustee by Merger, Etc . . . . . . . . . . 86
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . 86
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SECTION 7.11. Preferential Collection of
Claims Against the Company. . . . . . . . . . . . 86
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . 87
SECTION 8.1. Discharge; Option to Effect
Legal Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 87
SECTION 8.2. Legal Defeasance and Discharge . . . . . . . . . . . 87
SECTION 8.3. Covenant Defeasance. . . . . . . . . . . . . . . . . 88
SECTION 8.4. Conditions to Legal or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 89
SECTION 8.5. Deposited Cash and U.S.
Government Obligations to
be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . . . . . 91
SECTION 8.6. Repayment to the Company . . . . . . . . . . . . . . 91
SECTION 8.7. Reinstatement. . . . . . . . . . . . . . . . . . . . 92
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . 93
SECTION 9.1. Supplemental Indentures
Without Consent of Holders. . . . . . . . . . . . 93
SECTION 9.2. Amendments, Supplemental
Indentures and Waivers
with Consent of Holders . . . . . . . . . . . . . 94
SECTION 9.3. Compliance with TIA. . . . . . . . . . . . . . . . . 95
SECTION 9.4. Revocation and Effect of Consents. . . . . . . . . . 96
SECTION 9.5. Notation on or Exchange of
Securities. . . . . . . . . . . . . . . . . . . . 97
SECTION 9.6. Trustee to Sign Amendments, Etc. . . . . . . . . . . 97
ARTICLE X
SUBORDINATION. . . . . . . . . . . . 97
SECTION 10.1. Securities Subordinated to
Senior Debt . . . . . . . . . . . . . . . . . . . 97
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SECTION 10.2. No Payment on Securities in
Certain Circumstances . . . . . . . . . . . . . . 98
SECTION 10.3. Securities Subordinated to Prior
Payment of All Senior Debt on
Dissolution, Liquidation or
Reorganization. . . . . . . . . . . . . . . . . . 100
SECTION 10.4. Securityholders to Be Subrogated
to Rights of Holders of
Senior Debt . . . . . . . . . . . . . . . . . . . 101
SECTION 10.5. Obligations of the Company and
the Guarantors Unconditional. . . . . . . . . . . 102
SECTION 10.6. Trustee Entitled to Assume
Payments Not Prohibited in
Absence of Notice . . . . . . . . . . . . . . . . 104
SECTION 10.7. Application by Trustee of
Assets Deposited with It. . . . . . . . . . . . . 104
SECTION 10.8. Subordination Rights Not
Impaired by Acts or Omissions
of the Company, the Guarantors
or Holders of Senior Debt . . . . . . . . . . . . 104
SECTION 10.9. Securityholders Authorize
Trustee to Effectuate
Subordination of Securities . . . . . . . . . . . 105
SECTION 10.10. Right of Trustee to Hold
Senior Debt . . . . . . . . . . . . . . . . . . . 105
SECTION 10.11. Article X Not to Prevent Events
of Default. . . . . . . . . . . . . . . . . . . . 106
SECTION 10.12. No Fiduciary Duty of Trustee to
Holders of Senior Debt. . . . . . . . . . . . . . 106
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE . . . . . . . . 106
SECTION 11.1. Repurchase of Securities at
Option of the Holder Upon
a Change of Control . . . . . . . . . . . . . . . 106
ARTICLE XII
GUARANTY. . . . . . . . . . . . . 110
SECTION 12.1. Guaranty . . . . . . . . . . . . . . . . . . . . . . 110
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SECTION 12.2. Execution and Delivery of
Guaranty. . . . . . . . . . . . . . . . . . . . . 113
SECTION 12.3. Subsidiary Guarantors. . . . . . . . . . . . . . . . 113
SECTION 12.4. Guarantor May Consolidate, Etc.,
on Certain Terms. . . . . . . . . . . . . . . . . 113
SECTION 12.5. Release of Guarantors. . . . . . . . . . . . . . . . 115
SECTION 12.6. Certain Bankruptcy Events. . . . . . . . . . . . . . 116
ARTICLE XIII
MISCELLANEOUS. . . . . . . . . . . . 116
SECTION 13.1. TIA Controls . . . . . . . . . . . . . . . . . . . . 116
SECTION 13.2. Notices. . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 13.3. Communications by Holders with
Other Holders . . . . . . . . . . . . . . . . . . 118
SECTION 13.4. Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . . 118
SECTION 13.5. Statements Required in
Certificate or Opinion. . . . . . . . . . . . . . 118
SECTION 13.6. Rules by Trustee, Paying Agent,
Registrar . . . . . . . . . . . . . . . . . . . . 119
SECTION 13.7. Non-Business Days. . . . . . . . . . . . . . . . . . 119
SECTION 13.8. Governing Law. . . . . . . . . . . . . . . . . . . . 119
SECTION 13.9. No Adverse Interpretation of
Other Agreements. . . . . . . . . . . . . . . . . 120
SECTION 13.10. No Recourse against Others . . . . . . . . . . . . . 120
SECTION 13.11. Successors . . . . . . . . . . . . . . . . . . . . . 120
SECTION 13.12. Duplicate Originals. . . . . . . . . . . . . . . . . 121
SECTION 13.13. Severability . . . . . . . . . . . . . . . . . . . . 121
SECTION 13.14. Table of Contents, Headings, Etc . . . . . . . . . . 121
SECTION 13.15. Registration Rights. . . . . . . . . . . . . . . . . 121
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Exhibit A - Form of Security . . . . . . . . . . . . . . . . . . . . . . A-1
vi
INDENTURE, dated as of June 17, 1997, by and among Jacor
Communications Company, a Florida corporation (the "Company"), Jacor
Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the
Subsidiary Guarantors referred to below and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
Each party hereto agrees as follows for the equal and ratable benefit
of the Holders of the Company's 83/4% Series A Senior Subordinated Notes due
2007 and for the 83/4% Series B Subordinated Notes due 2007:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section 4.14.
"ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital
Stock of any person existing at the time such person becomes a Subsidiary of the
Company, including by designation, or is merged or consolidated into or with
either of the Company or one of its Subsidiaries; provided, that such
Indebtedness was not incurred in anticipation of, or in connection with, and was
outstanding prior to such person becoming a Subsidiary of the Company.
"ACQUISITION" means the purchase or other acquisition of any person or
substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, PROVIDED,
that, a Beneficial Owner of 10% or more of the total voting power normally
entitled to vote in the election of directors, managers or trustees, as
applicable, shall for such purposes be deemed to constitute control.
"AFFILIATE TRANSACTION" shall have the meaning specified in Section
4.10.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
"ASSET SALE" shall have the meaning specified in Section 4.14.
"ASSET SALE DATE" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PERIOD" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PRICE" shall have the meaning specified in Section
4.14.
"ASSET SWAP" means the execution of a definitive agreement, subject
only to regulatory approval and other customary closing conditions, that the
Company in good faith believes will be satisfied, for a substantially concurrent
purchase and sale, or exchange, of Productive Assets between the Company or any
of its Subsidiaries and another person or group of affiliated persons; provided
that any amendment to or waiver of any closing condition which individually or
in the aggregate is material to the Asset Swap shall be deemed to be a new Asset
Swap.
"AVERAGE LIFE" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of (a)
the product of the number of years from the date of determination to the date or
dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption)
2
payment by (ii) the sum of all such principal (or redemption) payments.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the
definition of Change of Control has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act (as in effect on the Issue Date) whether or not
applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"BOARD OF DIRECTORS" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"BOARD RESOLUTION" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such or the executive committee of such
Board of Directors of such person.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CAPITAL LEASE" means a lease, the payments on which would be
capitalized for financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means rental obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
3
obligations shall be the capitalized amount of such obligations, as determined
in accordance with GAAP.
"CASH" or "CASH" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"CASH EQUIVALENT" means (i) securities issued directly or fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) or (ii) time deposits and
certificates of deposit with, and commercial paper issued by the parent
corporation of, any domestic commercial bank of recognized standing having
capital and surplus in excess of $500.0 million and commercial paper issued by
others rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in each case maturing within one year after the date of
acquisition.
"CHANGE OF CONTROL" means any transaction or series of transactions in
which any of the following occurs:
(i) any merger or consolidation of the Company with or into any
person or any sale, transfer or other conveyance, whether direct or indirect, of
all or substantially all of any of the assets of the Company, on a consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such transaction(s), any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act,
whether or not applicable) (other than an Excluded Person) is or becomes the
"beneficial owner," directly or indirectly, of more than 50% of the total voting
power in the aggregate normally entitled to vote in election of directors,
managers, or trustees, as applicable, of the transferee(s) or surviving entity
or entities,
(ii) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of Capital Stock of the Company then outstanding
normally entitled to vote in elections of directors, or
4
(iii) during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of any such 12-month period constituted
the Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
JCC was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in Section
11.1.
"CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the SEC.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"CONSOLIDATED" or "CONSOLIDATED" means determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Xxxxxxx-
5
dated income tax expense, (ii) Consolidated depreciation and amortization
expense, provided that consolidated depreciation and amortization of a
Subsidiary that is a less than wholly owned Subsidiary shall only be added to
the extent of the equity interest of the Company in such Subsidiary, (iii) other
noncash charges (including amortization of goodwill and other intangibles), (iv)
Consolidated Fixed Charges, and less the amount of all cash payments made by
such person or any of its Subsidiaries during such period to the extent such
payments relate to non-cash charges that were added back in determining
Consolidated EBITDA for such period or any prior period.
"CONSOLIDATED FIXED CHARGES" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or guaranteed) by such person or
any of its Consolidated Subsidiaries in respect of Preferred Stock (other than
by Subsidiaries of such person to such person or such person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such person or a
Subsidiary of such person of an obligation of another person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in comput-
6
ing such net income (or loss) and without duplication): (a) all gains or losses
which are either noncash or extraordinary (as determined in accordance with
GAAP) or are either unusual or nonrecurring (including any gain from the sale or
other disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock), (b) the net income, if positive, of any
person, other than a wholly owned Consolidated Subsidiary, in which such person
or any of its Consolidated Subsidiaries has an interest, except to the extent of
the amount of any dividends or distributions actually paid in cash to such
person or a wholly owned Consolidated Subsidiary of such person during such
period, but in any case not in excess of such person's PRO RATA share of such
person's net income for such period, (c) the net income or loss of any person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition, (d) the net income, if positive, of any of such person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary.
"CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement reporting
purposes with the financial statements of such person in accordance with GAAP.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3.
"CREDIT FACILITY" means the Credit Agreement dated as of June 12,
1996, and as amended and restated as of February 14, 1997, by and among Chase
Manhattan Bank, as Administrative Agent, Banque Paribas, as Documentation Agent,
and Bank of America, Illinois, as Syndication Agent, certain financial
institutions from time to time party thereto, including any related notes,
guarantees, collateral documents, instruments, letters of credit, reimbursement
obligations and other agreements executed by or binding on the Company, any of
its Subsidiaries and/or the Parent Guarantor (or any successors or assigns) in
connection therewith (collectively, the "Related Documents"), as such
7
Credit Agreement and/or Related Documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to time whether
or not with the same agent, trustee, representative lenders or holders, and,
subject to the proviso to the next succeeding sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Facility" shall include agreements in respect of
Interest Swap and Hedging Obligations with lenders (or affiliates thereof) party
to the Credit Facility and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement or modification in
whole or in part to any Credit Facility and all refundings, refinancings and
replacements in whole or in part of any Credit Facility, including, without
limitation, any agreement or agreements (i) extending the maturity of any
Indebtedness incurred thereunder or contemplated thereby, (ii) adding or
deleting borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness incurred thereunder or available to be borrowed thereunder,
provided that on the date such Indebtedness is incurred it would be permitted by
paragraph (f) under the definition of Permitted Indebtedness, or (iv) otherwise
altering the terms and conditions thereof.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.12.
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provi-
8
sion of this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b),
with respect to any person, Equity Interests of such person that, by its terms
or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Securities, and (b) with respect to
any Subsidiary of such person (including with respect to any Subsidiary of the
Company), any Equity Interests other than any common equity with no preference,
privileges, or redemption or repayment provisions.
"DTC" shall have the meaning specified in Section 2.3.
"EQUITY INTEREST" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EVENT OF LOSS" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"EXCESS PROCEEDS" shall have the meaning specified in Section 4.14.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
9
"EXCLUDED PERSON" means Xxxx/Chilmark Fund L.P. and all Related
Persons of such person.
"EXCHANGE SECURITIES" means the 8 3/4% Series B Senior Subordinated
Notes due 2007, as supplemented from time to time in accordance with the terms
hereof, to be issued pursuant to this Indenture in connection with the offer to
exchange Securities for the Initial Securities that may be made by the Company
and the Guarantors pursuant to the Registration Rights Agreement that contains
the changes referred to in footnotes 1, 2, 4, 5 and 7 to the form of Security
attached hereto as Exhibit A.
"EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee
compensation arrangements approved by a majority of independent (as to such
transactions) members of the Board of Directors of the Company, (b) dividends
permitted under Section 4.3 of this Indenture payable, in form and amount, on a
PRO RATA basis to all holders of Common Stock of the Parent Guarantor, (c)
transactions solely between the Company and any of its Wholly owned Subsidiaries
or solely among Wholly owned Subsidiaries of the Company, and (d) payments to
Xxxx/Chilmark Fund L.P or its Affiliates for reasonable and customary fees and
expenses for financial advisory and investment banking services provided to the
Parent Guarantor and the Company, and (e) payments to the Parent Guarantor made
in accordance with the Tax Sharing Agreement.
"EXISTING ASSETS" means assets of the Company existing at the Issue
Date (other than cash, Cash Equivalents or inventory held for resale in the
ordinary course of business) and including proceeds of any sale of such assets
and assets acquired in whole or in part with proceeds from the sale from any
such assets.
"EXISTING INDEBTEDNESS" means, with respect to the Company,
Indebtedness existing or outstanding at the Issue Date.
"FAIR MARKET VALUE" or "FAIR MARKET VALUE" means, with respect to any
assets or properties, the amount at which such assets or properties would change
hands between a willing buyer and a willing seller, within a commercially
reasonable time, each having reasonable knowledge of the relevant facts, neither
being under a compulsion to sell or buy, as such amount is determined by (i) the
Board of Direc-
10
tors of either of the Company acting in good faith or (ii) an appraisal or
valuation firm of national or regional standing selected by the Company, with
experience in the appraisal or valuation of properties or assets of the type for
which Fair Market Value is being determined.
"FINAL PUT DATE" shall have the meaning specified in Section 4.14.
"FUTURE SUBSIDIARY GUARANTOR" shall have the meaning specified in
Section 12.3.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession as in effect on the Issue Date unless otherwise specified.
"GLOBAL SECURITY" means a Security that contains the paragraph and
schedule referred to in footnotes 3 and 6, respectively, in the form of Security
attached hereto as Exhibit A.
"GUARANTOR" means (i) the Parent Guarantor identified in the following
sentence and (ii) any Subsidiary Guarantors that are or become Guarantors
pursuant to the terms of this Indenture, but excluding any Persons whose
guarantees have been released pursuant to the terms of this Indenture. The
Parent Guarantor is Jacor Communications, Inc., a Delaware corporation.
"GUARANTY" shall have the meaning provided in Section 12.1.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a Security
is registered on the Registrar's books.
"INCUR" or "INCUR" shall have the meaning specified in Section 4.11.
"INCURRENCE DATE" shall have the meaning specified in Section 4.11.
11
"INDEBTEDNESS" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such any person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors, (iv) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (v)
relating to any Capitalized Lease Obligation, or (vi) evidenced by a letter of
credit or a reimbursement obligation of such person with respect to any letter
of credit; (b) all net obligations of such person under Interest Swap and
Hedging Obligations; (c) all liabilities and obligations of others of the kind
described in the preceding clause (a) or (b) that such person has guaranteed or
that is otherwise its legal liability or which are secured by any assets or
property of such person and all obligations to purchase, redeem or acquire any
Equity Interests; and (d) all Disqualified Capital Stock of such person (valued
at the greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer (or managing
general partner of the issuer) of such Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INITIAL PURCHASERS" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Chase Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"INITIAL SECURITIES" means the 8 3/4% Series A Senior Subordinated
Notes due 2007, as supplemented from time to
12
time in accordance with the terms hereof, issued under this Indenture that
contains changes referred to in footnotes 1, 2, 4, 5 and 7 to the form of
Security attached hereto as Exhibit A.
"INTEREST PAYMENT DATE" means the stated due date of an installment of
interest on the Securities.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"INVESTMENT" by any person in any other person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other person or any agreement to make any such acquisition; (b) the making
by such person of any deposit with, or advance, loan or other extension of
credit to, such other person (including the purchase of property from another
person subject to an understanding or agreement, contingent or otherwise, to
resell such property to such other person) or any commitment to make any such
advance, loan or extension (but excluding accounts receivable or deposits
arising in the ordinary course of business); (c) other than guarantees of
Indebtedness of the Company or any Guarantors to the extent permitted by the
covenant "Limitation on Incurrence of Additional Indebtedness and Disqualified
Capital Stock" or the definition of Permitted Indebtedness, the entering into by
such person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other person
(other than the endorsement of instruments for deposit or collection in the
ordinary
13
course of business); and (d) the making of any capital contribution by such
person to such other person.
"ISSUE DATE" means the date of first issuance of the Securities under
this Indenture.
"JACOR" means Jacor Communications, Inc., a Delaware corporation.
"JUNIOR SECURITY" means any Qualified Capital Stock and any
Indebtedness of the Company or a Guarantor, as applicable, that is subordinated
in right of payment to Senior Debt at least to the same extent as the Securities
or the Guarantees, as applicable, and has no scheduled installment of principal
due, by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities; provided, that in the case of subordination in
respect of Senior Debt under the Credit Facility, "Junior Security" shall mean
any Qualified Capital Stock and any Indebtedness of the Company or the
Guarantors, as applicable, that (i) has a final maturity date occurring after
the final maturity date of, all Senior Debt outstanding under the Credit
Facility on the date of issuance of such Qualified Capital Stock or
Indebtedness, (ii) is unsecured, (iii) has an Average Life longer than the
security for which such Qualified Capital Stock or Indebtedness is being
exchanged, and (iv) by their terms or by law are subordinated to Senior Debt
outstanding under the Credit Facility on the date of issuance of such Qualified
Capital Stock or Indebtedness at least to the same extent as the Securities.
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2.
"LEVERAGE RATIO" of any person on any date of determination (the
"Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of the
aggregate outstanding amount of Indebtedness and Disqualified Capital Stock of
such person and its Subsidiaries as of the date of calculation on a consolidated
basis in accordance with GAAP to (b) the aggregate amount of Consolidated EBITDA
of such person attributable to continuing operations and business (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period; PROVIDED, that for purposes of such
calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the
14
Transaction Date shall be assumed to have occurred on the first day of the
Reference Period, (ii) transactions giving rise to the need to calculate the
Leverage Ratio shall be assumed to have occurred on the first day of the
Reference Period, (iii) the incurrence of any Indebtedness or issuance of any
Disqualified Capital Stock during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction Date (and the application
of the proceeds therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of such
Reference Period, and (iv) the Consolidated Fixed Charges of such person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be
computed on a PRO FORMA basis as if the average rate in effect from the
beginning of the Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation (which
shall remain in effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate on the date
of computation, in which case such rate (whether higher or lower) shall be
used.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"MATURITY DATE" means, when used with respect to the Securities, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of this Indenture regarding
acceleration of Indebtedness or any Change of Control Offer or Asset Sale
Offer).
"NET CASH PROCEEDS" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Capital
Stock and by the Company and its Subsidiaries in respect of an Asset Sale or an
Event of Loss plus, in the case of an issuance of Qualified Capital Stock of the
Company upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of
15
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary), expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale, Event of Loss or sale of Qualified
Capital Stock, and, in the case of an Asset Sale only, less an amount (estimated
reasonably and in good faith by the Company or the amount actually incurred, if
greater) of income, franchise, sales and other applicable taxes required to be
paid by the Company or any of its Subsidiaries in connection with such Asset
Sale.
"9 3/4% NOTES" means the 9 3/4% Senior Subordinated Notes due December
15, 2006 issued by the Company pursuant to an Indenture dated as of December 17,
1996 among Jacor Communications Company, Jacor Communications, Inc., as Parent
Guarantor, the Subsidiary Guarantors named therein and The Bank of New York, as
Trustee.
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
6.1(3).
"OBLIGATION" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Securities or this Indenture.
"OFFERING MEMORANDUM" means the Offering Memorandum of the Company and
the Guarantors dated June 11, 1997 with respect to the Securities.
"OFFICER" means, with respect to the Company or the Guarantors, the
Chief Executive Officer, the President, any Senior Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company or Guarantor (as applicable).
"OFFICERS' CERTIFICATE" means, with respect to the Company or the
Guarantors, a certificate signed by two Officers or by an Officer and an
Assistant Secretary of the Company or the Guarantors (as applicable) and
otherwise com-
16
plying with the requirements of Sections 13.4 and 13.5, and delivered to the
Trustee or an Agent, as applicable.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee (which may include counsel to the Trustee
or the Company including an employee of the Company) or an Agent, as applicable,
complying with the requirements of Sections 13.4 and 13.5, and delivered to the
Trustee or an Agent, as applicable.
"OUTSTANDING" as used with reference to the Securities shall have the
meaning specified in Section 2.8 hereof.
"PARENT" or "PARENT" of any person means a corporation which at the
date of determination owns, directly or indirectly, a majority of the Voting
Stock of such person or of a Parent of such person.
"PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware
corporation.
"PAYING AGENT" has the meaning specified in Section 2.3.
"PAYMENT DEFAULT" has the meaning specified in Section 10.2.
"PAYMENT NOTICE" shall have the meaning set out in Section 10.2.
"PERMITTED INDEBTEDNESS" means any of the following:
(a) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit and performance
bonds (to the extent that such incurrence does not result in the incurrence of
any obligation to repay any obligation relating to borrowed money of others),
all in the ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Company's industry;
provided, that the aggregate principal amount outstanding of such Indebtedness
(including any Indebtedness issued to refinance, refund or replace such
Indebtedness) shall at no time exceed $5.0 million;
17
(b) the Company may incur Indebtedness to any Wholly owned
Subsidiary Guarantor, and any Wholly owned Subsidiary Guarantor may incur
Indebtedness to any other Wholly owned Subsidiary Guarantor or to the Company;
provided, that in the case of Indebtedness of the Company, such obligations
shall be unsecured and subordinated in all respects to the Company's obligations
pursuant to the Securities and the date of any event that causes such Subsidiary
Guarantor to no longer be a Wholly owned Subsidiary shall be an Incurrence Date;
(c) the Company and the Guarantors may incur Indebtedness
evidenced by the Securities and the Guarantees and represented by this Indenture
up to the amounts specified therein as of the date hereof;
(d) the Company and the Guarantors, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, which Indebtedness was incurred pursuant to the
Leverage Ratio in Section 4.11 hereof or clause (c) of this definition;
(e) the Company and its Subsidiaries may incur Indebtedness in
an aggregate amount outstanding at any time (including any Indebtedness issued
to refinance, replace, or refund such Indebtedness) of up to $5.0 million;
(f) the Company and the Guarantors may incur Indebtedness
incurred pursuant to the Credit Facility up to an aggregate principal amount
outstanding (including any Indebtedness issued to refinance, refund or replace
such Indebtedness in whole or in part) at any time of $600.0 million, plus
accrued interest and additional expense and reimbursement obligations with
respect thereto and such additional amounts as may be deemed to be outstanding
in the form of Interest Swap and Hedging Obligations with lenders (or affiliates
thereof) party to the Credit Facility, minus the amount of any such Indebtedness
retired with Net Cash Proceeds from any Asset Sale;
(g) the Company and the Guarantors may incur Indebtedness under
Interest Swap and Hedging Obligations that do not increase the Indebtedness of
the Company other than as a result of fluctuations in interest or foreign
currency exchange rates provided that such Interest Swap and
18
Hedging Obligations are incurred for the purpose of providing interest rate
protection with respect to Indebtedness permitted under this Indenture or to
provide currency exchange protection in connection with revenues generated in
currencies other than U.S. dollars;
(h) Subsidiaries may incur Acquired Indebtedness if the Company
at the time of such incurrence could incur such Indebtedness pursuant to the
Leverage Ratio in Section 4.11; and
(i) the Company and its Subsidiaries may incur Indebtedness
existing on the Issue Date.
"PERMITTED INVESTMENT" means:
(a) Investments in any of the Securities;
(b) Cash Equivalents;
(c) intercompany loans to the extent permitted under clause (b)
of the definition of "Permitted Indebtedness" and intercompany security
agreements relating thereto;
(d) loans, advances or investments in existence on the Issue
Date;
(e) Investments in a person substantially all of whose assets
are of a type generally used in a Related Business (an "Acquired Person") if, as
a result of such Investments, (i) the Acquired Person immediately thereupon is
or becomes a Subsidiary of the Company, or (ii) the Acquired Person immediately
thereupon either (1) is merged or consolidated with or into the Company or any
of its Subsidiaries and the surviving person is the Company or a Subsidiary of
the Company or (2) transfers or conveys all or substantially all of its assets,
or is liquidated into, the Company or any of its Subsidiaries;
(f) Investments in a person with whom the Company or any of its
Subsidiaries have entered into, (i) local market agreements or time brokerage
agreements pursuant to which the Company or any one of its Subsidiaries programs
substantial portions of the broadcast day on such person's radio broadcast
station(s) and sells advertising time during such program segments for its own
account or
19
(ii) joint sales agreements pursuant to which the Company or any of its
Subsidiaries sells substantially all of the advertising time for such person's
radio broadcast station(s);
(g) Investments that are in persons which will have the purpose
of furthering the operations of the Company and its Subsidiaries not to exceed
$10.0 million; and
(h) demand deposit accounts maintained in the ordinary course of
business.
"PERMITTED LIEN" means:
(a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes,
assessments or other charges or levies not yet subject to penalty or which
are being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP as of the date of determination;
(c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP as of the date of determination;
(d) Liens securing the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business and deposits made in the ordinary course of
business to secure obligations of public utilities;
(e) easements, rights-of-way, zoning, building restrictions,
reservations, encroachments, exceptions, covenants, similar restrictions and
other similar encumbrances or title defects which, singly or in the aggregate,
20
do not in any case materially detract from the value of the property, subject
thereto (as such property is used by the Company or any of its Subsidiaries)
or interfere with the ordinary conduct of the business of the Company or any
of its Subsidiaries;
(f) Liens arising by operation of law in connection with
judgments, provided, that the execution or other enforcement of such Liens is
effectively stayed and that the claims secured thereby are being contested in
good faith by appropriate proceedings;
(g) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation;
(h) Liens securing Indebtedness of a person existing at the
time such person becomes a Subsidiary or is merged with or into the Company
or a Subsidiary or Liens securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior to the date of
such acquisition, merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets;
(i) leases or subleases granted to other persons in the
ordinary course of business not materially interfering with the conduct of
the business of the Company or any of its Subsidiaries or materially
detracting from the value of the relative assets of the Company or any of its
Subsidiaries;
(j) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(k) Liens securing Refinancing Indebtedness incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens securing
such refinanced Indebtedness provided that the Indebtedness secured is not
increased and the lien is not extended to any additional assets or property;
21
(l) Liens in favor of the Administrative Agent
pursuant to the Credit Facility; and
(m) Liens on property of a Subsidiary of the
Company provided that such Liens secure only obligations owing by such
Subsidiary to the Company or another Subsidiary of the Company.
"PERSON" or "PERSON" means any corporation,
individual, limited liability company, joint stock company, joint venture,
partnership, unincorporated association, governmental regulatory entity,
country, state or political subdivision thereof, trust, municipality or other
entity.
"PLAN OF LIQUIDATION" means a plan that provides
for, contemplates or the effectuation of which is preceded or accompanied by
(whether or not substantially contemporaneously) (i) the sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company otherwise than as an entirety or substantially as an entirety
and (ii) the distribution of all or substantially all of the proceeds of such
sale, lease, conveyance or other disposition and all or substantially all of
the remaining assets of the Company to holders of Capital Stock of the
Company.
"PREFERRED STOCK" as applied to the Capital Stock of
any corporation, means Capital Stock ranking prior to the shares of any other
class of Capital Stock of said corporation as to the payment of dividends or
the distribution of assets on any voluntary or involuntary liquidation.
"PRESENT SUBSIDIARY GUARANTORS" means After MidNite
Entertainment, Inc.; Broadcast Finance, Inc.; Cine Films, Inc.; Cine
Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors II, Ltd.; Cine
Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.; Citicasters Co.; EFM
Programming, Inc.; F.M.I. Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340,
Inc.; Georgia Network Equipment, Inc.; Great American Merchandising Group,
Inc.; Great American Television Productions, Inc.; Inmobilaria Radial, S.A.
de C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Knoxville, Inc.; Jacor Broadcasting of St. Louis, Inc.;
Jacor Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.;
Jacor Broadcasting of Tampa Bay, Inc.; Jacor Cable,
22
Inc.; Jacor/Premiere Holding, Inc.; Location Productions, Inc.; Location
Productions II, Inc.; Noble Broadcast Center, Inc.; Noble Broadcast Group,
Inc.; Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble
Broadcast of Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble
Broadcast of San Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.;
Nova Marketing Group, Inc.; Premiere Radio Networks, Inc.; Regent
Broadcasting of Charleston, Inc.; Regent Broadcasting of Kansas City, Inc.;
Regent Broadcasting of Las Vegas, Inc.; Regent Broadcasting of Las Vegas II,
Inc.; Regent Broadcasting of Louisville, Inc., Regent Broadcasting of
Louisville II, Inc.; Regent Broadcasting of Salt Lake City, Inc.; Regent
Broadcasting of Salt Lake City II, Inc.; Regent Licensee of Charleston, Inc.;
Regent Licensee of Kansas City, Inc.; Regent Licensee of Las Vegas, Inc.;
Regent Licensee of Las Vegas II, Inc; Regent Licensee of Louisville, Inc.;
Regent Licensee of Louisville II, Inc.; Regent Licensee of Salt Lake City,
Inc.; Regent Licensee of Salt Lake City II, Inc.; Sports Radio Broadcasting,
Inc.; Sports Radio, Inc.; Xxxx-TCI Satellite Services, Inc.; The Xx Xxxxxxx
Company Agency, Inc.; WHOK, Inc.; and VTTV Productions, each a direct or
indirect subsidiary of the Company or any successor entity, whether by
merger, consolidation, change of name or otherwise.
"PRO RATA PORTION" shall have the meaning specified
in Section 12.1.
"PRODUCTIVE ASSETS" means assets of a kind used or
usable by the Company and its Subsidiaries in a Related Business.
"PROPERTY" means any right or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible.
"PUBLIC OFFERING" means a firm commitment
underwritten primary offering of Capital Stock of the Parent Guarantor or the
Company.
"QUALIFIED CAPITAL STOCK" means any Capital Stock of
the Company that is not Disqualified Capital Stock.
"QUALIFIED EXCHANGE" means any legal defeasance,
redemption, retirement, repurchase or other acquisition of Capital Stock or
Indebtedness of the Company issued on or after the Issue Date with the Net
Cash Proceeds received by
23
the Company from the substantially concurrent sale of Qualified Capital Stock
or any exchange of Qualified Capital Stock for any Capital Stock or
Indebtedness issued on or after the Issue Date.
"RECORD DATE" means a Record Date specified in the
Securities whether or not such Record Date is a Business Day.
"REDEMPTION DATE," when used with respect to any
Security to be redeemed, means the date fixed for such redemption pursuant to
Article III of this Indenture and Paragraph 5 in the form of Security.
"REDEMPTION PRICE," when used with respect to any
Security to be redeemed, means the redemption price for such redemption
pursuant to Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest to the Redemption Date
(subject to the provisions of Section 3.5).
"REFERENCE PERIOD" with regard to any Person means
the four full fiscal quarters (or such lesser period during which such person
has been in existence) ended immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or this
Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness or
Disqualified Capital Stock (a) issued in exchange for, or the proceeds from
the issuance and sale of which are used substantially concurrently to repay,
redeem, defease, refund, refinance, discharge or otherwise retire for value,
in whole or in part, or (b) constituting an amendment, modification or
supplement to, or a deferral or renewal of ((a) and (b) above are,
collectively, a "Refinancing"), any Indebtedness or Disqualified Capital
Stock in a principal amount or, in the case of Disqualified Capital Stock,
liquidation preference, not to exceed (after deduction of reasonable and
customary fees and expenses incurred in connection with the Refinancing) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital
Stock so Refinanced and (ii) if such Indebtedness being Refinanced was issued
with an original issue discount, the accredited value thereof (as determined
in accordance with GAAP) at the time of such Refinancing; provided, that (A)
24
such Refinancing Indebtedness of any Subsidiary of the Company shall only be
used to Refinance outstanding Indebtedness or Disqualified Capital Stock of
such Subsidiary, (B) such Refinancing Indebtedness shall (x) not have an
Average Life shorter than the Indebtedness or Disqualified Capital Stock to
be so refinanced at the time of such Refinancing and (y) in all respects, be
no less subordinated or junior, if applicable, to the rights of Holders of
the Securities than was the Indebtedness or Disqualified Capital Stock to be
refinanced and (C) such Refinancing Indebtedness shall have no installment of
principal (or redemption payment) scheduled to come due earlier than the
scheduled maturity of any installment of principal of the Indebtedness or
Disqualified Capital Stock to be so refinanced which was scheduled to come
due prior to the Stated Maturity.
"REGISTRAR" shall have the meaning specified in
Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the
Registration Rights Agreement dated as of June 17, 1997 by and among the
Initial Purchasers, the Company and the Guarantors, as such agreement may be
amended, modified or supplemented from time to time in accordance with the
terms thereof.
"RELATED BUSINESS" means the business conducted (or
proposed to be conducted) by the Company and its Subsidiaries as of the Issue
Date and any and all businesses that in the good faith judgment of the Board
of Directors of the Company are materially related businesses.
"RELATED PERSON" means any person who controls, is
controlled by or is under common control with an Excluded Person; PROVIDED
that for purposes of this definition "control" means the beneficial ownership
of more than 50% of the total voting power of a person normally entitled to
vote in the election of directors, managers or trustees, as applicable of a
person.
"REPRESENTATIVE" means Chase Manhattan Bank in its
capacity as Administrative Agent for lenders pursuant to the New Credit
Facility, and not in its individual capacity as a lender, and any successor
Administrative Agent appointed pursuant to the Credit Facility.
25
"REQUIRED LENDERS" means lenders under the Credit
Facility whose PRO RATA shares (as defined therein), pursuant to the Credit
Facility, are in the aggregate at least 66 2/3%.
"RESTRICTED INVESTMENT" means, in one or a series
of related transactions any Investment other than investments in Permitted
Investments; provided, however, that a merger of another person with or into
the Company or a Subsidiary Guarantor shall not be deemed to be a Restricted
Investment so long as the surviving entity is the Company or a direct Wholly
owned Subsidiary Guarantor.
"RESTRICTED PAYMENT" means with respect to any
person, (a) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of such person or any parent or Subsidiary of
such person, (b) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Equity Interests of such person or any
Subsidiary or parent of such person, (c) other than with the proceeds from
the substantially concurrent sale of, or in exchange for, Refinancing
Indebtedness any purchase, redemption, or other acquisition or retirement for
value of, any payment in respect of any amendment of the terms of or any
defeasance of, any Subordinated Indebtedness, directly or indirectly, by such
person or a parent or Subsidiary of such person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking fund
payment, as the case may be, of such Indebtedness and (d) any Restricted
Investment by such person; provided, however, that the term "Restricted
Payment" does not include (i) any dividend, distribution or other payment on
or with respect to Capital Stock of an issuer to the extent payable solely in
shares of Qualified Capital Stock of such issuer; (ii) any dividend,
distribution or other payment to the Company, or to any Wholly owned
Subsidiary Guarantor, by any of the Subsidiaries of the Company; or (iii)
loans or advances to any Guarantor the proceeds of which are used by such
Subsidiary Guarantor in a Related Business activity of such Subsidiary
Guarantor.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Initial Securities and the
Exchange Securities.
26
"SECURITIES ACT" means the Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"SECURITIES CUSTODIAN" means the Registrar, as
custodian with respect to the Securities in global form, or any successor
entity thereto.
"SECURITYHOLDER" or "HOLDER" means any person in
whose name a Security is registered on the Registrar's books.
"SENIOR DEBT" of the Company or any Guarantor means
Indebtedness (including any monetary obligation in respect of the Credit
Facility, and interest, whether or not such interest is allowed or allowable,
accruing on Indebtedness incurred pursuant to the Credit Facility at the
contracted-for rate whether accruing on, before or after the commencement of
any proceeding under any bankruptcy, insolvency or similar law) of the
Company or such Guarantor arising under the Credit Facility or that, by the
terms of the instrument creating or evidencing such Indebtedness, is
expressly designated Senior Debt and made senior in right of payment to the
Securities or the applicable Guaranty; provided, that in no event shall
Senior Debt include (a) Indebtedness to any Subsidiary of the Company or any
officer, director or employee of the Company or any Subsidiary of the
Company, (b) Indebtedness incurred in violation of the terms of this
Indenture, (c) Indebtedness to trade creditors, (d) Disqualified Capital
Stock and (e) any liability for taxes owed or owing by the Company or such
Guarantor.
"SIGNIFICANT SUBSIDIARY" shall have the meaning
provided under Regulation S-X of the Securities Act, in effect on the Issue
Date.
"SPECIAL RECORD DATE" for payment of any Defaulted
Interest means a date fixed by the Paying Agent pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any
Security, means June 15, 2007.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of
the Company or a Guarantor that is subordinated in right of payment to the
Securities or such Guaranty, as applicable,
27
in any respect or has a stated maturity on or after the Stated Maturity.
"SUBSIDIARY" with respect to any person, means (i) a
corporation a majority of whose Capital Stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such person, by such person and one or more Subsidiaries
of such person or by one or more Subsidiaries of such person, (ii) any other
person (other than a corporation) in which such person, one or more
Subsidiaries of such person, or such person and one or more Subsidiaries of
such person, directly or indirectly, at the date of determination thereof has
at least majority ownership interest, or (iii) a partnership in which such
person or a Subsidiary of such person is, at the time, a general partner and
in which such person, directly or indirectly, at the date of determination
thereof has at least a majority ownership interest.
"SUBSIDIARY GUARANTORS" means (i) the Present
Subsidiary Guarantors and (ii) Future Subsidiary Guarantors (other than
Excluded Subsidiaries) that become Subsidiary Guarantors pursuant to the
terms of this Indenture, but excluding any Persons whose guarantees have been
released pursuant to the terms of this Indenture.
"TAX SHARING AGREEMENT" means any agreements between
the Company and the Parent Guarantor pursuant to which the Company may make
payments to the Parent Guarantor with respect to the Company's Federal,
state, or local income or franchise tax liabilities where the Company is
included in a consolidated, unitary or combined return filed by the Parent
Guarantor; PROVIDED, HOWEVER, that the payment by the Company under such
agreement may not exceed the liability of the Company for such taxes if it
had filed its income tax returns as a separate company.
"10 1/8% NOTES" means the 10 1/8% Senior
Subordinated Notes due June 15, 2006 issued by JCAC, Inc. (predecessor to the
Company) pursuant to an Indenture dated as of June 12, 1996 among JCAC, Inc.,
Jacor Communication Inc., as Initial Guarantor and First Trust of Illinois,
National Association.
"TIA" means the Trust Indenture Act of 1939, as
amended, (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the
execution of this Indenture, except as provided in Section 9.3.
28
"TRANSFER INSTRUMENTS" shall have the meaning
specified in Section 12.2.
"TRANSFER RESTRICTED SECURITIES" means Securities
that bear or are required to bear the legend set forth in Section 2.6(g) of
this Indenture.
"TRUSTEE" means the party named as such in this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"TRUST OFFICER" means any officer within the
corporate trust department (or any successor group) of the Trustee or any
other officer of the Trustee customarily performing functions similar to
those performed by the Persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct
non-callable obligations of, or noncallable obligations guaranteed by, the
United States of America for the payment of which obligation or guarantee the
full faith and credit of the United States of America is pledged.
"VOTING STOCK" means, with respect to any specified
person, capital stock with voting power, under ordinary circumstances, to
elect directors of such Person.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the
Equity Interests of which are owned by the Company or one or more Wholly
owned Subsidiaries of the Company.
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the
TIA, such 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.
29
"INDENTURE SECURITYHOLDER" means a Holder or a
Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means
the Trustee.
"OBLIGOR" on the indenture securities means the
Company, each Guarantor and any other obligor on the Securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule and not otherwise defined herein have the meanings assigned to them
thereby.
SECTION 1.3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and words in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(7) references to Sections or Articles means
reference to such Section or Article in this Indenture, unless stated
otherwise.
ARTICLE II
THE SECURITIES
30
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto,
which Exhibit is part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Security for the Company by manual or facsimile
signature. The Company's seal, if any, shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Securities
and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate or cause to be authenticated Securities
for original issue in the aggregate principal amount of up to $150,000,000
upon a written order of the Company in the form of an Officers' Certificate.
The Officers' Certificate shall specify the amount of Securities
31
to be authenticated and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at
any time may not exceed $150,000,000, except as provided in Section 2.7.
Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name changes of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, 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, any Affiliate of the
Company, or any of its Subsidiaries.
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or exchange ("Registrar") and an office or agency of
the Company where Securities may be presented for payment ("Paying Agent")
and where notices and demands to or upon the Company in respect of the
Securities may be served. The Company may act as Registrar or Paying Agent,
except that, for the purposes of Articles III, VIII, XI, and Section 4.14 and
as otherwise specified in this Indenture, neither the Company nor any
Affiliate of the Company shall act as Paying Agent. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents.
The term "Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional Paying Agent. The Company hereby initially appoints
the Trustee as Registrar and Paying Agent, and by its acknowledgement and
acceptance on the signature page hereto, the Trustee hereby agrees so to act.
32
The Company shall enter into an appropriate written agency agreement
with any Agent (including the Paying Agent) not a party to this Indenture,
which agreement shall implement the provisions of this Indenture that relate
to such Agent, and shall furnish a copy of each such agreement to the
Trustee. The Company shall promptly notify the Trustee in writing of the
name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities
Custodian with respect to the Global Securities.
Upon the occurrence of an Event of Default described in Section
6.1(4) or (6), the Trustee shall, or upon the occurrence of any other Event
of Default by notice to the Company, the Registrar and the Paying Agent, the
Trustee may, assume the duties and obligations of the Registrar and the
Paying Agent hereunder.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, the Securities (whether such
assets have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee in writing of any Default in making
any such payment. If a Subsidiary of the Company acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund for the benefit of
the Holders or the Trustee. The Company at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default or any Event of Default, upon written request to a Paying Agent, require
such Paying Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
33
Paying Agent (if other than the Company) shall have no further liability for
such assets.
SECTION 2.5. SECURITYHOLDER LISTS.
The Registrar shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee or
any Paying Agent is not the Registrar, the Company shall furnish to the Trustee
on or before the third Business Day preceding each Interest Payment Date and at
such other times as the Trustee or any such Paying Agent may request in writing
a list in such form and as of such date as the Trustee or any such Paying Agent
reasonably may require of the names and addresses of Holders and the Company
shall otherwise comply with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive Securities;
or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized denominations;
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and
the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, shall be accompanied by the following additional
information and documents, as applicable:
34
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in substantially the form set forth on the reverse of the
Security); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (within the meaning
of Rule 144A promulgated under the Securities Act), that is aware that
any sale of Securities to it will be made in reliance on Rule 144A
under the Securities Act and that is acquiring such Transfer
Restricted Security for its own account, or for the account of
another such "qualified institutional buyer", a certification from
such Holder to that effect (in substantially the form set forth on the
reverse of the Security); or
(C) if such Transfer Restricted Security is being
pursuant to an exemption from registration in accordance
with Rule 144, or Regulation S under the Securities Act, or pursuant
to an effective registration statement under the Securities Act, a
certification from such Holder to that effect (in substantially the
form set forth on the reverse of the Security); or
(D) if such Transfer Restricted Security is being
transferred to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act, that is purchasing the Security for its own account or
for the account of such an institutional "accredited investor", in
each case in a minimum principal amount of $250,000, not with a view
to or for offer for sale in connection with any distribution in
violation of the Securities Act, a certification from such Holder to
that effect (in substantially the form set forth on the reverse of
the Security) and a signed transferee letter of representation in
substantially the form set forth in the Offering Memorandum.
35
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Registrar, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, certification, substantially in the form set forth on the reverse
of the Security, that such Definitive Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Registrar to make,
or to direct the Securities Custodian to make, an endorsement on the Global
Security to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security,
then the Registrar shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security.
36
Upon receipt by the Registrar of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security, and upon receipt by such Registrar of a written instruction or
such other form of instructions as is customary for the Depositary or the
Person designated by the Depositary as having such a beneficial interest in
a Transfer Restricted Security only, the following additional information
and documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the
form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act), that is aware that any sale of
Securities to it will be made in reliance on Rule 144A under the
Securities Act and that is acquiring such Transfer Restricted Security
for its own account, or for the account of another such "qualified
institutional buyer", a certification to that effect from the
transferor (in substantially the form set forth on the reverse of the
Security); or
(C) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with Rule
144, or Regulation S under the Securities Act, or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect (in substantially the form set forth on
the reverse of the Security); or
(D) if such beneficial interest is being transferred to an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act, that is
purchasing the Security for its own account or for the account of such
an
37
institutional "accredited investor", in each case in a minimum
principal amount of $250,000, not with a view to or for offer for sale
in connection with any distribution in violation of the Securities
Act, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security) and a
signed transferee letter of representation in substantially the form
set forth in the Offering Memorandum.
then the Registrar or the Securities Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and the Trustee's authenticating agent will authenticate
and deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar. The Registrar
shall deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Security
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Securities notifies the Company
that the Depositary is unwilling or unable to continue as Depositary for
the Global Securities and a successor Depositary for the Global
38
Securities is not appointed by the Company within 90 days after delivery of
such notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee and the Registrar in writing that it elects to cause the issuance
of Definitive Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will, or its authenticating agent will, authenticate and deliver Definitive
Securities, in an aggregate principal amount equal to the principal amount of
the Global Securities, in exchange for such Global Securities.
(g) LEGENDS.
(i) Except as permitted by the following paragraph (ii),
each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL OR OTHERWISE TRANSFER
39
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR, (B) TO A PERSON
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (E) TO AN IAI WHICH PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN THEM BY RULE
902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Act or an effective
registration statement under the Act:
(A) in the case of any Transfer Restricted Security that is
a Definitive Security, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
40
(B) any such Transfer Restricted Security represented by a
Global Security shall not be subject to the provisions set forth in
(i) above (such sales or transfers being subject only to the
provisions of Section 2.6(c) of this Indenture); PROVIDED, HOWEVER,
that with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Security for a
Definitive Security that does not bear a legend, which request is made
in reliance upon Rule 144, the Holder thereof shall certify in writing
to the Registrar that such request is being made pursuant to Rule 144
(such certification to be substantially in the form set forth on the
reverse of the Security).
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, repurchased or cancelled, such Global
Security shall be returned to or retained and cancelled by the Registrar. At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
cancelled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Registrar or the Securities Custodian, at the direction of the
Registrar, to reflect such reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee or any authenticating agent of
the Trustee shall authenticate Definitive Securities and Global Securities
at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments, or similar governmental charge payable upon
exchanges or
41
transfers pursuant to Section 2.10, 3.7, 4.14(8), 9.5, or 11.1 (final
paragraph)).
(iii) The Registrar shall not be required to register the
transfer of or exchange (a) any Definitive Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion
of any Definitive Security being redeemed in part, or (b) any Security for
a period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase pursuant to Article XI or Section 4.14 hereof or
redemption of Securities pursuant to Article III hereof and ending at the
close of business on the day of such mailing.
(iv) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers
between or among Depositary participants or beneficial owners of interests
in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do
so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements thereof.
SECTION 2.7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Registrar, to the Registrar to the effect that the
Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee or any authenticating agent of the Trustee shall
authenticate a replacement Security if the Registrar's requirements are met.
Such Holder must provide an indemnity bond or other indemnity, sufficient in
the judgment of both the Company and the Registrar, to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. In the case of any lost Security that will become due
and payable within 30 days, the Company can choose to pay such Security
rather than replacing such Security. The Company may charge
42
such Holder for its reasonable, out-of-pocket expenses in replacing a
Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those cancelled by the Registrar, those delivered to
the Registrar for cancellation, those reductions in the interest in a Global
Security effected by the Registrar hereunder, those paid pursuant to Section
2.7 and those described in this Section 2.8 as not outstanding. A Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Registrar receives proof satisfactory to it that the replaced
Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds Cash or U.S.
Government Obligations sufficient to pay all of the principal and interest
and premium, if any, due on the Securities payable on that date and payment
of the Securities called for redemption is not otherwise prohibited, then on
and after that date such Securities cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver
or consent, Securities owned by the Company or Affiliates of the Company
shall be disregarded, except that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent,
43
only Securities that a Trust Officer of the Trustee actually knows are so
owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but
may have variations that the Company reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall, upon receipt of a written order
of the Company in the form of an Officers' Certificate, authenticate
Definitive Securities in exchange for temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities authenticated and
delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Trustee and the Paying Agent shall forward to the
Registrar any Securities surrendered to them for registration of transfer,
exchange or payment. The Registrar, or at the direction of the Registrar,
the Trustee or the Paying Agent (other than the Company or an Affiliate of
the Company), and no one else, shall cancel and, return to the Company all
Securities surrendered for registration of transfer, exchange, payment or
cancellation. Subject to Section 2.7, the Company may not issue new
Securities to replace Securities that have been paid or delivered to the
Registrar for cancellation. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section 2.11,
except as expressly permitted in the form of Securities and as permitted by
this Indenture.
SECTION 2.12. DEFAULTED INTEREST.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to
the extent lawful, any interest payable on the defaulted interest at the rate
and in the manner provided in Section 4.1 hereof and the Security (herein
called "Defaulted Interest") shall forthwith cease to be
44
payable to the registered holder on the relevant Record Date, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Paying Agent an amount of Cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such Cash when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Paying Agent shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Paying
Agent of the notice of the proposed payment. The Paying Agent shall
promptly notify the Company and the Trustee of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the persons in whose
names the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities ex-
45
change on which the Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee and the Paying Agent of the proposed payment pursuant to this
clause, such manner shall be deemed practicable by the Trustee and the
Paying Agent.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.13. 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 identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by the provisions of this
Indenture, shall be made in accordance with such provisions and this Article
III. The Company will not have the right to redeem any Securities prior to June
15, 2002. On or after June 15, 2002, the Company will have the right to redeem
all or any part of the Securities pursuant to Paragraph 5 thereof, in each case
(subject to the right of Holders of record on a Record Date to receive interest
due on an Interest Payment Date that is on or prior to such Redemption Date, and
subject to the provisions set
46
forth in Section 3.5), including accrued and unpaid interest to the Redemption
Date.
SECTION 3.2. NOTICES TO TRUSTEE AND PAYING AGENT.
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of Securities to be redeemed and
whether it wants the Paying Agent to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities it has not previously delivered to the Trustee and
the Paying Agent for cancellation, it shall so notify the Trustee, in the form
of an Officers' Certificate, and the Paying Agent of the amount of the reduction
and deliver such Securities with such notice.
The Company shall give each notice to the Trustee and the Paying Agent
provided for in this Section 3.2 at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee and the Paying
Agent). Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed by
lot or by such other method as the Trustee shall determine to be appropriate and
fair.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
and the Paying Agent in writing of the Securities selected for redemption and,
in the case of any Security selected for partial redemption, the principal
amount thereof to be redeemed. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the
47
principal of Securities that have denominations larger than $1,000. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
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, postage
prepaid, to the Trustee, the Paying Agent and each Holder whose Securities are
to be redeemed. At the Company's request, the Paying Agent shall give the
notice of redemption in the Company's name and at the Company's expense. Each
notice for redemption shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice to
collect the Redemption Price;
(5) that, unless the Company defaults in its obligation to
deposit with the Paying Agent Cash, or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, Cash in an amount to fund the Redemption
Price, in accordance with Section 3.6 hereof or such redemption payment is
otherwise prohibited, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued and unpaid interest to the Redemption Date, upon
surrender to the Paying Agent of the Securities called for redemption and
to be redeemed;
48
(6) if any Security is being redeemed in part, the portion
of the principal amount, equal to $1,000 or any integral multiple thereof,
of such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the optional redemption provisions of Paragraph 5 of
the Securities.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest to the
Redemption Date. Upon surrender to the Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including interest, if any,
accrued and unpaid to the Redemption Date; PROVIDED that if the Redemption Date
is after a regular Record Date and on or prior to the Interest Payment Date to
which such Record Date relates, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant Record Date; and
PROVIDED, FURTHER, that if a Redemption Date is a non-Business Day, payment
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10 a.m., New York City time, on the Redemption Date,
the Company shall deposit with the Paying Agent (other than the Company or an
Affiliate of the Company) Cash or U.S. Government Obligations sufficient to pay
49
the Redemption Price of, including accrued and unpaid interest on, all
Securities to be redeemed on such Redemption Date (other than Securities or
portions thereof called for redemption on that date that have been delivered by
the Company to the Registrar for cancellation). The Paying Agent shall promptly
return to the Company any Cash or U.S. Government Obligations so deposited which
is not required for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Security.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest and premium, if
applicable, on the Securities on the dates and in the manner provided herein and
in the Securities. An installment of principal of or interest and premium, if
applicable, on the Securities shall be considered
50
paid on the date it is due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 10:00 a.m. New York City time on that
date, Cash deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee and the Paying Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee and the Paying Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes 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 obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee and the Paying Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby initially designates the principal
corporate trust office of the Paying Agent as such office.
51
SECTION 4.3. LIMITATION ON RESTRICTED PAYMENTS.
On and after the Issue Date the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make any Restricted
Payment, if, after giving effect to such Restricted Payment on a PRO FORMA
basis, (1) a Default or an Event of Default shall have occurred and be
continuing, (2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio in Section 4.11, or (3)
the aggregate amount of all Restricted Payments made by the Company and its
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (a)(x) 100% of the
aggregate Consolidated EBITDA of the Company and its Consolidated Subsidiaries
for the period (taken as one accounting period), commencing on the first day of
the first full fiscal quarter commencing after the Issue Date, to and including
the last day of the fiscal quarter ended immediately prior to the date of each
such calculation (or, in the event Consolidated EBITDA for such period is a
deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed
Charges for the same period plus (b) the aggregate Net Cash Proceeds received by
the Company from the sale of its Qualified Capital Stock (other than (i) to a
Subsidiary of the Company and (ii) to the extent applied in connection with a
Qualified Exchange), after the Issue Date.
The foregoing clauses (2) and (3) of the immediately preceding
paragraph, however, will not prohibit (w) payments to the Parent Guarantor to
reimburse the Parent Guarantor for reasonable and necessary corporate and
administrative expenses, (x) Restricted Investments, PROVIDED, that, after
giving PRO FORMA effect to such Restricted Investment, the aggregate amount of
all such Restricted Investments made on or after the Issue Date that are
outstanding (after giving effect to any such Restricted Investments that are
returned to the Company or the Subsidiary Guarantor that made such prior
Restricted Investment, without restriction, in cash on or prior to the date of
any such calculation) at any time does not exceed $25.0 million, (y) a Qualified
Exchange and (z) the payment of any dividend on Qualified Capital Stock within
60 days after the date of its declaration if such dividend could have been made
on the date of such declaration in compliance with the foregoing provisions.
The full amount of any Restricted Payment made
52
pursuant to the foregoing clauses (x) and (z) of the immediately preceding
sentence, however, will be deducted in the calculation of the aggregate amount
of Restricted Payments available to be made pursuant to clause (3) of the
immediately preceding paragraph.
SECTION 4.4. CORPORATE EXISTENCE.
Subject to Article V, the Company and the Guarantors shall do or cause
to be done all things necessary to preserve and keep in full force and effect
their respective corporate existence in accordance with the respective
organizational documents of each of them (as the same may be amended from time
to time) and the rights (charter and statutory) and corporate franchises of the
Company and the Guarantors; PROVIDED, HOWEVER, nothing in this Section will
prohibit the Company or any Guarantor from engaging in any transaction permitted
under Section 12.4 or Section 12.5 hereof and PROVIDED FURTHER that neither the
Company nor any Guarantor shall be required to preserve any right or franchise
if (a) the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such entity and (b) the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 4.5. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company and the
Guarantors shall, and shall cause each of their Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Company and the Guarantors or any of their Subsidiaries or any
of their respective properties and assets; and (ii) all lawful claims, whether
for labor, materials, supplies, services or anything else, which have become due
and payable and which by law have or may become a Lien upon the property and
assets of the Company and the Guarantors or any of their Subsidiaries; PROVIDED,
HOWEVER, that neither the Company nor any of the Guarantors shall be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which
53
disputed amounts adequate reserves have been established in accordance with
GAAP.
SECTION 4.6. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 4.6 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a), in the
judgment of the Board of Directors of the Company, desirable in the conduct of
the business of such entity and (b) not disadvantageous in any material respect
to the Holders.
The Company and the Guarantors shall provide, or cause to be provided,
for themselves and each of their Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company is adequate and appropriate for the conduct of
the business of the Company, the Guarantors and such Subsidiaries.
SECTION 4.7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive, principal financial or principal
accounting officer of the Company, complying with Section 314(a)(4) of the TIA
and stating that a review of its activities and the activities of its
Subsidiaries, if any, 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 (without regard
54
to notice requirements or grace periods)and further stating, as to each such
Officer signing such certificate, whether or not the signer knows of any failure
by the Company or any Guarantor to comply with any conditions or covenants in
this Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto. The Trustee shall not be deemed to have knowledge of any
Default or any Event of Default unless one of its Trust Officers receives
written notice thereof from the Company or any of the Holders.
SECTION 4.8. REPORTS.
For so long as the Parent Guarantor or any successor thereto is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
and the Company is a wholly owned Subsidiary of the Parent Guarantor, the
Company shall deliver to the Trustee, and to each Holder, the Parent Guarantor's
annual and quarterly reports pursuant to Section 13 or 15(d) of the Exchange
Act, within 15 days after such reports have been filed with the Commission;
PROVIDED, HOWEVER; in the event either (i) the Parent Guarantor or a successor
as set forth above is no longer subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act or (ii) the Company is no longer a wholly owned
Subsidiary of the Parent Guarantor or a successor as set forth above, then
whether or not the Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Company shall deliver to the Trustee and,
to each Holder, within 15 days after it is or would have been (if it were
subject to such reporting obligations) required to file such with the
Commission, annual and quarterly financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
Commission, if the Company were subject to the requirements of Section 13 or
15(d) of the Exchange Act, including, with respect to annual information only, a
report thereon by the Company's certified independent ac-
55
countants as such would be required in such reports to the Commission, and, in
each case, together with a management's discussion and analysis of financial
condition and results of operations which would be so required and, to the
extent permitted by the Exchange Act or the Commission (if it were subject to
such reporting obligations), file with the Commission the annual, quarterly and
other reports which it is or would have been required to file with the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.9. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any Subsidiary shall become an "investment
company" (as that term is defined in the Investment Company Act of 1940, as
amended), or otherwise become subject to regulation under the Investment Company
Act.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
After the Issue Date, the Company shall not, and shall not permit any
of its Subsidiaries to, enter into any contract, agreement, arrangement or
transaction with any Affiliate (an "Affiliate Transaction") or any series of
related Affiliate Transactions (other than Exempted Affiliate Transactions)
(i) unless it is determined that the terms of such Affiliate Transaction are
fair and reasonable to the Company, and no less favorable to the Company than
could have been obtained in an arm's length transaction with a non-Affiliate
and, (ii) if involving consideration to either party in excess of $5.0 million,
unless such Affiliate Transaction(s) is evidenced by (A) an Officers'
Certificate addressed and delivered to the Trustee certifying that such
Affiliate Transaction (or Transactions) has been approved by a majority of the
members of the Board of Directors
56
of the Company that are disinterested in such transaction or, (B) in the event
there are no members of the Board of Directors of the Company who are
disinterested in such transaction, then so long as the Company is a wholly owned
Subsidiary of the Parent Guarantor, an Officers' Certificate addressed and
delivered to the Trustee certifying that such Affiliate Transaction (or
Transactions) have been approved by a majority of the members of the Board of
Directors of the Parent Guarantor that are disinterested in such transaction and
(iii) if involving consideration to either party in excess of $10.0 million,
unless in addition the Company, prior to the consummation thereof, obtains a
written favorable opinion as to the fairness of such transaction to the Company
from a financial point of view from an independent investment banking firm of
national reputation.
SECTION 4.11. LIMITATION ON INCURRENCE OF ADDITIONAL
INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK.
Except as set forth below, neither the Company nor any of the
Company's Subsidiaries shall, directly or indirectly, issue, assume, guaranty,
incur, become directly or indirectly liable with respect to (including as a
result of an Acquisition), or otherwise become responsible for, contingently or
otherwise (individually and collectively, to "incur" or, as appropriate, an
"incurrence"), any Indebtedness or any Disqualified Capital Stock (including
Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding the
foregoing limitations, the Company may incur Indebtedness and Disqualified
Capital Stock in addition to Permitted Indebtedness: if (i) no Default or Event
of Default shall have occurred and be continuing at the time of, or would occur
after giving effect on a PRO FORMA basis to, such incurrence of Indebtedness or
Disqualified Capital Stock and (ii) on the date of such incurrence (the
"Incurrence Date"), the Leverage Ratio of the Company for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a PRO FORMA
basis to such incurrence of such Indebtedness or Disqualified Capital Stock and,
to the extent set forth in the definition of Leverage Ratio, the use of proceeds
thereof, would be less than 7.0 to 1.
Indebtedness or Disqualified Capital Stock of any person which is
outstanding at the time such person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other person as a Subsidiary)
or is merged with or into or consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been Incurred at the time such Person
becomes such a Subsidiary of the Compa-
57
ny or is merged with or into or consolidated with the Company or a Subsidiary of
the Company, as applicable.
SECTION 4.12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall permit any of
their Subsidiaries to, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company to pay dividends or
make other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or any Subsidiary
of the Company, except (a) restrictions imposed by the Securities or this
Indenture, (b) restrictions imposed by applicable law, (c) existing restrictions
under Indebtedness outstanding on the Issue Date, (d) restrictions under any
Acquired Indebtedness not incurred in violation of this Indenture or any
agreement relating to any property, asset, or business acquired by the Company
or any of its Subsidiaries, which restrictions in each case existed at the time
of acquisition, were not put in place in connection with or in anticipation of
such acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (f) under the definition of Permitted
Indebtedness, provided such restriction or requirement is no more restrictive
than that imposed by the Credit Facility as of the Issue Date, (f) restrictions
with respect solely to a Subsidiary of the Company imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such Subsidiary, provided
such restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold, and (g) in connection with and pursuant to
permitted Refinancings, replacements of restrictions imposed pursuant to clauses
(a), (c) or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, or other xxxx-
58
dard non-assignment clauses in contracts entered into in the ordinary course of
business, (b) Capital Leases or agreements governing purchase money Indebtedness
which contain restrictions of the type referred to above with respect to the
property covered thereby, nor (c) Liens permitted under the terms hereof on
assets securing Senior Debt incurred pursuant to the Leverage Ratio in Section
4.11 or permitted pursuant to the definition of Permitted Indebtedness, shall in
and of themselves be considered a restriction on the ability of the applicable
Subsidiary to transfer such agreement or assets, as the case may be.
SECTION 4.13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS.
The Company and its Subsidiaries shall not, and shall not permit
any of their Subsidiaries to, directly or indirectly, incur, or, other than
with respect to the 10 1/8% Notes and the 9 3/4% Notes, suffer to exist (a)
any Indebtedness that is subordinate in right of payment to any other
Indebtedness of the Company or a Guarantor unless, by its terms, such
Indebtedness (i) has a maturity date subsequent to the Stated Maturity of the
Securities and an Average Life longer than that of the Securities and (ii) is
subordinate in right of payment to, or ranks PARI PASSU with, the Securities
or the Guarantees, as applicable, or (b) other than Permitted Liens, any Lien
upon any of properties or assets, whether now owned or hereafter acquired, or
upon any income or profits therefrom securing Indebtedness other than (1)
Liens securing Senior Debt incurred pursuant to the Leverage Ratio in
accordance with Section 4.11 and (2) Liens securing Senior Debt incurred as
permitted pursuant to the definition of Permitted Indebtedness.
SECTION 4.14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, in one or a series of related transactions, sell,
transfer, or otherwise dispose of, any of its property, business or assets,
including by merger or consolidation (in the case of a Guarantor or a Subsidiary
of the Company), and including any sale or other transfer or issuance of any
Equity Interests of any direct or indirect Subsidiary of the Company, whether by
the Company or a direct or indirect Subsidiary thereof (an "Asset Sale"), unless
(1) within 450 days after the date of
59
such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount")
are (a) applied to the optional redemption of the Securities in accordance with
the terms hereof and the Securities or to the repurchase of the Securities
pursuant to an irrevocable, unconditional cash offer (the "Asset Sale Offer") to
repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100%
of principal amount, plus accrued interest to the date of payment, (b) invested
in assets and property (other than notes, bonds, obligations and securities)
which in the good faith reasonable judgment of the Board of the Company will
immediately constitute or be a part of a Related Business of the Company or a
Subsidiary (if it continues to be a Subsidiary) immediately following such
transaction or (c) used to permanently retire or reduce Senior Debt or
Indebtedness permitted pursuant to paragraphs (d), (e) or (f) under the
definition of Permitted Indebtedness (including that in the case of a revolver
or similar arrangement that makes credit available, such commitment is so
permanently reduced by such amount), (2) with respect to any Asset Sale or
related series of Asset Sales involving securities, property or assets with an
aggregate fair market value in excess of $2.5 million, at least 75% of the
consideration for such Asset Sale or series of related Asset Sales (excluding
the amount of (A) any Indebtedness (other than the Securities) that is required
to be repaid or assumed (and is either repaid or assumed by the transferee of
the related assets) by virtue of such Asset Sale and which is secured by a Lien
on the property or asset sold and (B) property received by the Company or any
such Subsidiary from the transferee that within 90 days of such Asset Sale is
converted into cash or Cash Equivalents) consists of cash or Cash Equivalents
(other than in the case of an Asset Swap or where the Company is exchanging all
or substantially all the assets of one or more Related Businesses operated by
the Company or its Subsidiaries (including by way of the transfer of capital
stock) for all or substantially all the assets (including by way of the transfer
of capital stock) constituting one or more Related Businesses operated by
another person, in which event the foregoing requirement with respect to the
receipt of cash or Cash Equivalents shall not apply), (3) no Default or Event of
Default shall have occurred and be continuing at the time of, or would occur
after giving effect, on a PRO FORMA basis, to, such Asset Sale, and (4) the
Board of the Company determines in good faith that the Company or such
Subsidiary, as applicable, receives fair market value for such Asset Sale.
60
Notwithstanding the foregoing provisions of the first paragraph of
this covenant, with respect to an Asset Sale Offer, the Company shall not
commence an Asset Sale Offer for the Securities until such time as an Asset
Sale Offer for the 10 1/8% Notes and the 9 3/4 Notes in each case if
required, has been completed. To the extent that any Excess Proceeds remain
after expiration of an Asset Sale Offer Period for the 10 1/8% Notes and the
9 3/4% Notes, the Company shall use the remaining Net Cash Proceeds, to the
extent "Excess Proceeds" (as defined herein) exceeds $5,000,000, to commence
an Asset Sale Offer for the Securities; PROVIDED, that with respect to the 10
1/8% Notes or the 9 3/4% Notes this paragraph shall be of no further force
and effect upon the earlier of (w) the maturity of the 10 1/8% Notes or the 9
3/4% Notes, respectively, (x) the date upon which defeasance of the 10 1/8%
Notes or the 9 3/4% Notes becomes effective, respectively, (y) the date on
which there are no longer any 10 1/8% Notes or 9 3/4% Notes outstanding in
accordance with the terms of the indenture governing the 10 1/8% Notes or the
9 3/4% Notes, respectively, and (z) the date on which the Limitation on Sale
of Assets and Subsidiary Stock covenant no longer applies in accordance with
the terms of this Indenture governing the 10 1/8% Notes or the 9 3/4% Notes,
respectively.
In addition, notwithstanding the foregoing provisions of the first
paragraph of this covenant:
(i) the Company and its Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to an in
accordance with the provisions of Section 5.1;
(ii) the Company and its Subsidiaries may sell or dispose
of inventory or damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no longer necessary
for the proper conduct of the business of the Company or such Subsidiary,
as applicable; and
(iii) any of the Company's Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets to, or merge with or into,
the Company or any of its Wholly owned Subsidiary Guarantors.
The Company shall accumulate all Net Cash Proceeds (including any cash
as and when received from the proceeds of any property which itself was acquired
in consideration
61
of an Asset Sale), and the aggregate amount of such accumulated Net Cash
Proceeds not used for the purposes permitted and within the time provided by
this Section 4.14 is referred to as the "Excess Proceeds."
For purposes of this Section 4.14, "Excess Proceeds Date" means each
date on which the Excess Proceeds exceeds $5,000,000. Not later than ten
Business Days after each Excess Proceeds Date, the Company will commence an
Asset Sale Offer, to the Holders to purchase, on a PRO RATA basis, for Cash,
Securities having a principal amount equal to the Excess Proceeds Amount at the
Asset Sale Offer Price, equal to 100% of principal amount, plus accrued but
unpaid interest to, and including, the date (the "Purchase Date"), the
Securities tendered are purchased and paid for in accordance with this Section
4.14. The Asset Sale Offer shall remain open for twenty Business Days, except
to the extent that a longer period is required by applicable law, but in any
case not more than sixty Business Days after such Excess Proceeds Date. Notice
of an Asset Sale Offer will be sent on or before the commencement of any Asset
Sale Offer, by first-class mail, by the Company to each Holder at its registered
address, with a copy to the Trustee. The notice to the Holders will contain all
information, instructions and materials required by applicable law or otherwise
material to such Holders' decision to tender Securities pursuant to the Asset
Sale Offer. The notice, which (to the extent consistent with this Indenture)
shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to
such notice and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer
Price (including the amount of accrued and unpaid interest), the Final Put
Date (as defined below), and the Purchase Date, which Purchase Date shall
be on or prior to 60 Business Days following the Excess Proceeds Date;
(3) that any Security or portion thereof not tendered or
62
accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the immediately following
paragraph of this Section 4.14 or such payment is otherwise prevented, any
Security, or portion thereof, accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security, or portion
thereof, purchased pursuant to an Asset Sale Offer will be required to
surrender the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying Agent
(which may not for purposes of this Section 4.14, notwithstanding anything
in this Indenture to the contrary, be the Company or any Affiliate of the
Company) at the address specified in the notice prior to the close of
business on the earlier of (a) the third Business Day prior to the Purchase
Date and (b) the third Business Day following the expiration of the Asset
Sale Offer (such earlier date being the "Final Put Date");
(6) that Holders will be entitled to withdraw their
elections, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 4.14, notwithstanding any other provision of this
Indenture, be the Company or any Affiliate of the Company) receives, up to
the close of business on the Final Put Date, a facsimile transmission or
63
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Securities
purchased;
(7) that if Securities in a principal amount in excess of
the principal amount of Securities to be acquired pursuant to the Asset
Sale Offer are tendered and not withdrawn, the Trustee shall select the
Securities to be purchased on a PRO RATA basis (with such adjustments as
may be deemed appropriate by the Company so that only Securities in
denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant
facts regarding such Asset Sales.
On or before a Purchase Date, the Company shall, to the extent lawful,
(i) accept for payment Securities or portions thereof properly tendered pursuant
to the Asset Sale Offer on or before the Final Put Date (on a PRO RATA basis if
required pursuant to paragraph (7) of this Section 4.14), (ii) deposit with the
Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all
Securities or portions thereof so tendered and accepted and (iii) deliver to the
Paying Agent Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof being purchased by the Company. The
Paying Agent shall on each Purchase Date mail or deliver to Holders of
64
Securities so accepted payment in an amount equal to the Asset Sale Offer Price
for such Securities, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered; PROVIDED that if the Purchase
Date is after a regular Record Date and on or prior to the Interest Payment Date
to which such Record Date relates, the accrued interest shall be payable to the
Holder of the purchased Securities registered on the relevant Record Date. Any
Security not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof.
All Net Cash Proceeds from an Event of Loss shall be applied to the
restoration, repair or replacement of the asset so affected or invested, used
for prepayment of Senior Debt, or used to repurchase Securities, all within the
period and as otherwise provided above in clauses 1(a), 1(b) or 1(c) of the
first paragraph of this covenant.
In addition to the foregoing, the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly make any Asset Sale of
any of the Equity Interests of any Subsidiary except pursuant to an Asset Sale
of all the Equity Interests of such Subsidiary.
Any such Asset Sale Offer shall comply with all applicable laws, rules
and regulations, including Regulation 14E of the Exchange Act and the rules and
regulations thereunder and all other applicable Federal and State securities
laws, if applicable, and any provisions of this Indenture that conflict with
such laws shall be deemed to be superseded by the provisions of such laws.
If the amount required to be paid by the Company in order to acquire
all Securities duly tendered by Holders (and not withdrawn) pursuant to an Asset
Sale Offer (the "Acceptance Amount"), made pursuant to the second paragraph of
this Section 4.14 is less than the Asset Sale Offer Amount, the excess of the
Asset Sale Offer Amount over the Acceptance Amount may be used by the Company
for general corporate purposes without restriction, unless otherwise restricted
by the other provisions of this Indenture. Upon consummation of any Asset Sale
Offer made in accordance with the terms of this Indenture, the Accumulated
Amount will be reduced to zero irrespective of the amount of Securities tendered
pursuant to the Asset Sale Offer.
65
Notwithstanding the foregoing provisions of clause (1)(b) in the first
paragraph of this Section 4.14, the Company may invest in a controlling interest
in the Capital Stock of an entity engaged in a Related Business; PROVIDED, that
concurrently with such an Investment, such entity becomes a Subsidiary
Guarantor.
SECTION 4.15. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall, and shall not
permit any of their Subsidiaries to, in one or a series of related transactions,
directly or indirectly, engage in any Asset Swaps, unless: (i) at the time of
entering into the agreement to swap assets and immediately after giving effect
to the proposed Asset Swap, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; (ii) the Company
would, after giving PRO FORMA effect to the proposed Asset Swap, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2.5 million by the Board of Directors of the
Company, as evidenced by a Board Resolution) are substantially the same at the
time of entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company or its Subsidiaries,
calculated from the time the agreement to swap assets was entered into.
SECTION 4.16. LIMITATION ON LINES OF BUSINESS.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, directly or indirectly, engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Board of Directors of the Company is a
Related Business.
66
SECTION 4.17. RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK.
Neither the Company nor the Guarantors shall sell, or permit any of
their Subsidiaries to issue or sell, any Equity Interests of any Subsidiary of
the Company to any person other than the Company or a Wholly owned Subsidiary of
the Company, except for Equity Interests with no preferences or special rights
or privileges and with no redemption or prepayment provisions.
SECTION 4.18. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors 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 or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of,
premium of, or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Guarantors hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or any
Paying Agent, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.19. 144A INFORMATION REQUIREMENT.
The Company shall furnish to the Holders of the Securities, securities
analysts, and prospective purchasers of Securities designated by the Holders of
Transfer Restricted Securities, upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act until such
time as either the Company has concluded an offer to exchange the Exchange
Securities for the Initial Securities or a registration statement relating to
resales of the Securities has become effective under the Securities Act. The
Company shall also furnish such information during the pendency of any
suspension of effectiveness of such resale registration statement.
67
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) The Company will not, directly or indirectly, consolidate
with or merge with or into another person or sell, lease, convey or transfer all
or substantially all of its assets (computed on a consolidated basis), whether
in a single transaction or a series of related transactions, to another person
or group of affiliated persons or adopt a Plan of Liquidation, unless (i) either
(a) the Company is the continuing entity or (b) the resulting, surviving or
transferee entity or in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation is a corporation
organized under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities and this Indenture;
(ii) no Default or Event of Default shall exist or shall occur immediately after
giving effect on a PRO FORMA basis to such transaction; and (iii) immediately
after giving effect to such transaction on a PRO FORMA basis, the consolidated
resulting, surviving or transferee entity or, in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio set forth in Section
4.11.
(b) For purposes of clause (a), the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
68
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a Plan of
Liquidation in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made or, in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation 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 corporation had been
named herein as the Company, and when a successor corporation duly assumes all
of the obligations of the Company pursuant hereto and pursuant to the
Securities, the Company shall be released from such obligations under the
Securities and this Indenture except with respect to any obligations that arise
from or are related to, such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure by the Company to pay any installment of interest
upon the Securities as and when the same becomes due and payable, and the
continuance of any such failure for a period of 30 days;
(2) failure by the Company to pay all or any part of the
principal of or premium, if any, on the Securities when and as the same
becomes due and payable at maturity, upon redemption, by acceleration, or
otherwise, including, without limitation, default in the payment of the
Change of Control Purchase Price in
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accordance with Article XI or the Asset Sale Offer Price in accordance with
Section 4.14, or otherwise;
(3) failure by the Company or any Guarantor to observe or
perform any other covenant or agreement contained in the Securities or this
Indenture and, subject to certain exceptions, the continuance of such
failure for a period of 60 days after written notice is given 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 Securities outstanding,
specifying such default or breach, requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(4) decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company or any of its
Significant Subsidiaries under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a period
of 60 consecutive days; or a decree, judgment or order of a court of
competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency for the Company, any of its
Significant Subsidiaries, or any substantial part of the property of any
such Person, or for the winding up or liquidation of the affairs of any
such Person, shall have been entered, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of 60
days;
(5) default in any issue of Indebtedness of the Company or any
of its Subsidiaries with an aggregate principal amount in excess of $5.0
million, in either case (a) resulting from the failure to pay principal at
final maturity, or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity;
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorgani-
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zation under any bankruptcy or similar law or similar statute, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a Custodian, receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of it or any substantial part of its assets or
property, or shall make a general assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, fail generally to pay its debts as they become due, or take any
corporate action in furtherance of any of the foregoing; or
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million at any one time shall be rendered
against the Company or any of its Subsidiaries and not stayed, bonded or
discharged for a period (during which execution shall not be effectively
stayed) of 60 days (or, in the case of any such final judgment which
provides for payment over time, which shall so remain unstayed, unbonded or
undischarged beyond any applicable payment date provided therein).
SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND
ANNULMENT.
If an Event of Default occurs and is continuing (other than an Event
of Default specified in Section 6.1(4) or (6) relating to the Company or its
Significant Subsidiaries) then in every such case, unless the principal of all
of the Securities shall have already become due and payable, either the Trustee
or the Holders of 25% in aggregate principal amount of the Securities
outstanding, by a notice in writing to the Company (and to the Trustee if given
by Holders) (an "Acceleration Notice"), may declare all of the principal and
accrued interest thereon to be due and payable immediately; provided, however,
that if any Senior Debt is outstanding pursuant to the New Credit Facility upon
a declaration of such acceleration, such principal and interest shall be due and
payable upon the earlier of (x) the third Business Day after the sending to the
Company and the Representative of such written notice, unless such Event of
Default is cured or waived prior to such date and (y) the date of acceleration
of any Senior Debt under the New Credit Facility. In the event a declaration of
acceleration resulting from an Event of Default described in Section 6.1(5)
above has occurred and is continuing, such declaration of
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acceleration shall be automatically annulled if such default is cured or waived
or the holders of the Indebtedness which is the subject of such default have
rescinded their declaration of acceleration in respect of such Indebtedness
within five days thereof and the Trustee has received written notice or such
cure, wavier or rescission and no other Event of Default described in Section
6.1(5) above has occurred that has not been cured or waived within five days of
the declaration of such acceleration in respect of such Indebtedness. If an
Event of Default specified in Section 6.1(4) or (6) above, relating to the
Company or any Significant Subsidiary occurs, all principal and accrued interest
thereon will be immediately due and payable on all outstanding Securities
without any declaration or other act on the part of Trustee or the Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to)
any Securities which would become due other than by reason of such
declaration of acceleration, and interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue
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interest at the rate borne by the Securities,
(D) all sums paid or advanced by the Trustee hereunder and
the compensation, expenses, disbursements and advances of the Trustee
and its agents and counsel, and any other amounts due the Trustee
under Section 7.7, and
(2) all Events of Default, other than the non-payment of
the principal of, premium, if any, and interest on Securities which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.12, including, if applicable, any Event of
Default relating to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to (i) any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event and (ii) any provision requiring supermajority approval to amend, unless
such default has been waived by such a supermajority. No such waiver shall cure
or waive 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 an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Company shall, 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, premium (if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and
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on any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including compensation to, and expenses, disbursements
and advances of the Trustee and its agents and counsel and all other amounts due
the Trustee under Section 7.7.
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 in favor of the
Holders, 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 the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective 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.
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 and premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect
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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 and its agent and counsel and
all other amounts due the Trustee under Section 7.7) and of the Holders
allowed in such judicial proceeding, and
(2) 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 and 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 in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its
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agents and counsel and all other amounts due the Trustee under Section 7.7, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI 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, premium
(if any) 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 Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any) 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, premium (if any) and interest,
respectively; and
THIRD: To the Company or such other Person as may be lawfully
entitled thereto, the remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 6.6.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Security shall have any right to order or direct the
Trustee 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;
(B) the Holders of not less than 25% in aggregate principal
amount of then outstanding Securi-
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ties 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 security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable 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 aggregate principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and interest on, such
Security on the Maturity Dates of such payments as expressed in such Security
(in the case of redemption, the Redemption Price on the applicable Redemption
Date, in the case of the Change of Control Payment, on the applicable Change of
Control Payment Date, and in the case of the Asset Sale Offer Price, on the
Purchase Date) and to institute suit for the enforcement of any such payment
after such respective dates, and such rights shall not be impaired without the
consent of such Holder.
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SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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 6.10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI 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 6.11. CONTROL BY HOLDERS.
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Securities 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 upon the Trustee, PROVIDED, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or involve the Trustee in personal liability,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 6.12. WAIVER OF PAST DEFAULT.
Subject to Section 6.8, and prior to the declaration of acceleration
of the maturity of the Securities, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, waive any past default hereunder and its consequences,
except a default
(A) in the payment of the principal of, premium, if any, or
interest on, any Security as specified in clauses (1) and (2) of Section
6.1 and not yet cured,
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Security affected, or
(C) in respect of any provision hereof which, under Article
IX, cannot be modified, amended or waived without the consent of the
Holders of a supermajority of the aggregate principal amount of the
Securities at the time outstanding; PROVIDED, that any such waiver may be
effected with the consent of the Holders of a supermajority of the
aggregate principal amount of the Securities then outstanding.
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 the exercise of any right arising therefrom.
SECTION 6.13. 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 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 to be taken by it
as Trustee, any court may in its discretion require 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
79
costs, including reasonable attorneys' fees and expenses, 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 6.13 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 aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any) or interest on,
any Security on or after the respective Maturity Date expressed in such Security
(including, in the case of redemption, on or after the Redemption Date).
SECTION 6.14. 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 case, subject to any
determination in such proceeding, the Company, the Guarantors, 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.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed, subject to
the terms hereof.
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of 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 Person would exercise or use under the circumstances in the conduct of
his own affairs.
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(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are
adverse to the Trustee, and
(2) 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 certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions 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:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1,
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts, and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders 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
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against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on 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
consult with counsel of its selection and may require an Officers' Certificate
or an Opinion of Counsel, which shall conform to Sections 13.4 and 13.5. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(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 conferred upon it by this Indenture, nor for any action
permitted to be taken or omitted hereunder by any Agent.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
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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, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company or any
Guarantor shall be sufficient if signed by an Officer of the Company or such
Guarantor, as applicable.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's or any Guarantor's covenants in Article IV hereof
or as to the performance by any Agent of its duties hereunder. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except any Default or Event of Default of which the Trustee shall have received
written notification or with respect to which a Trust Officer shall have actual
knowledge.
(i) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
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, any
Guarantor, any of their Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with 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 and
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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 the Trustee's certificate of authentication (if executed by the
Trustee), or the use or application of any funds received by a Paying Agent
other than the Trustee.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of principal (or premium, if any) of, or interest on, any Security
(including the payment of the Change of Control Purchase Price on the Change of
Control Payment Date, the payment of the Redemption Price on the Redemption Date
and the payment of the Offer Price on the Purchase Date), the Trustee may
withhold the notice if and so long as a Trust Officer in good faith determines
that withholding the notice is in the interest of the Securityholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15, 1998
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b)
and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company and the Guarantors jointly and severally agree to pay to
the Trustee from time to time such compensation as shall be agreed upon in
writing between the
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Company and the Trustee 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 and the Guarantors shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
accordance with this Indenture. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel.
The Company and the Guarantors jointly and severally agree to
indemnify the Trustee (in its capacity as Trustee) and each of its officers and
each of them, directors, attorneys-in-fact and agents for, and hold it harmless
against, any and all claim, demand, damage, expense (including but not limited
to reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel), loss or liability incurred by it without negligence or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company and the
Guarantors shall defend the claim and the Trustee shall provide reasonable
cooperation at the Company's and the Guarantors' expense in the defense. The
Trustee may have separate counsel and the Company and the Guarantors shall pay
the reasonable fees and expenses of such counsel. The Company and the
Guarantors need not pay for any settlement made without their written consent.
The Company and the Guarantors need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in
this Section 7.7, the Trustee shall have a lien prior to the Securities on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal and premium, if any, of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4)
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or (6) occurs, the expenses and the compensation for the services are intended
to constitute expenses of administration under any Bankruptcy Law.
The Company's and the Guarantors' obligations under this Section 7.7
and any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company's and the Guarantors' obligations pursuant
to Article VIII of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in aggregate principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other 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 Holder
or Holders of a majority in aggregate principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the retiring Trustee provided for in Section
7.7 have been paid, the retiring Trustee shall transfer all property held by it
as trustee to the successor Trustee, subject to the lien provided in Section
7.7, the resignation
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or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in aggregate principal amount of the
outstanding Securities may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company and the Guarantors' obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
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 resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus
of at least $25,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A
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Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
This Indenture shall cease to be of further effect (except that the
Company's and the Guarantors' obligations under Section 7.7 and the Trustee's
and the Paying Agent's obligations under Sections 8.6 and 8.7 shall survive)
when all outstanding Securities theretofore authenticated and issued have been
delivered (other than destroyed, lost or stolen Securities that have been
replaced or paid) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder. In addition, the Company may,
at its option and at any time, elect to have Section 8.2 or may, at any time,
elect to have Section 8.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company and the Guarantors shall be deemed to have been
discharged from their respective obligations with respect to all outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Section 8.4, and as more fully set forth in such section, payments
in respect of
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the principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such Securities
under Sections 2.4, 2.6, 2.7, 2.10 and 4.2, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligation in connection therewith and (d) this Article VIII. Upon
Legal Defeasance as provided herein, the Guaranty of each Guarantor shall be
fully released and discharged and the Trustee shall promptly execute and deliver
to the Company any documents reasonably requested by the Company to evidence or
effect the foregoing. Subject to compliance with this Article VIII, the Company
may exercise its option under this Section 8.2 notwithstanding the prior
exercise of its option under Section 8.3 with respect to the Securities.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company and the Guarantors shall be released from their
respective obligations under the covenants contained in Sections 4.3, 4.5, 4.6,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17, Article V,
Article XI and Article XII with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities 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. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Company need not 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 (and Section
6.1(3) shall not apply to any such covenant), but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
In addition, upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, Sections 6.1(3) through 6.1(7) shall not
constitute Events of Default. Upon Covenant Defeasance, as provided herein, the
Guaranty of each Guarantor shall be fully released and dis-
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charged and the Trustee shall promptly execute and deliver to the Company any
documents reasonably requested by the Company to evidence or effect the
foregoing.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfactory to the Trustee
satisfying the requirements of Section 7.10 who shall agree to comply with the
provisions of this Article VIII applicable to it) 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, (a)
Cash in an amount, or (b) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment, Cash in an amount, or (c) a combination thereof, in such amounts, as in
each case will be 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 and which shall be applied by the
Paying Agent (or other qualifying trustee) to pay and discharge the principal
of, premium, if any, and interest on the outstanding Securities on the Stated
Maturity or on the applicable Redemption Date, as the case may be, of such
principal or installment of principal, premium, if any, or interest; PROVIDED
that the Paying Agent shall have been irrevocably instructed to apply such Cash
and the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities. The Paying Agent shall promptly advise the Trustee
in writing of any Cash or Securities deposited pursuant to this Section 8.4;
(b) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company have
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Indenture there has been a change in the
applicable Federal
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income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Legal 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 Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
to the effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
in so far as Section 6.1(4) or Section 6.1(6) is concerned, at any time in the
period ending on the 91st day after the date of such deposit (it being
understood that this condition is a condition subsequent which shall not be
deemed satisfied until the expiration of such period, but in the case of
Covenant Defeasance, the covenants which are defeased under Section 8.3 will
cease to be in effect unless an Event of Default under Section 6.1(4) or Section
6.1(6) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company,
the Guarantors, or any of their Subsidiaries is a party or by which any of them
is bound;
(f) In the case of an election under either Section 8.2 or 8.3,
the Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Company pursuant to its election under Section 8.2
or 8.3 was not made by the Company with the intent of preferring the Holders
over other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others;
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(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the conditions precedent provided for have been
complied with; and
(h) The Company shall have delivered to the Trustee an Opinion
of Counsel stating that the conditions set out in Section 8.4(a)(with respect to
the validity and perfection of the security interest), (b), (c) and (e) above.
(i) The Company or the Parent Guarantor shall have delivered to
the Trustee any required consent of the lenders under the Credit Facility to
such defeasance or covenant defeasance, as the case may be.
SECTION 8.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all Cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Paying Agent (or other
qualifying trustee, collectively for purposes of this Section 8.5, the "Paying
Agent") pursuant to Section 8.4 in respect of the outstanding Securities shall
be held in trust and applied by the Paying Agent, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any other Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
SECTION 8.6. REPAYMENT TO THE COMPANY.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the
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request of the Company any Cash or U.S. Government Obligations held by it as
provided in Section 8.4 hereof which in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Any Cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request; and the Holder of such Security shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to (i) be published once, in the NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), or (ii) mail to each such Holder, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is
permitted to apply such money in accordance with Section 8.2 and 8.3, as the
case may be; PROVIDED, HOWEVER, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Security following the
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reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the Cash and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company or any Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause shall not adversely affect the
interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders, or to surrender any right or power herein conferred
upon the Company or the Guarantors;
(3) to provide for additional collateral for or additional
Guarantors of the Securities;
(4) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the Company,
herein and in the Securities in accordance with Article V;
(5) to comply with the TIA;
(6) to evidence the succession of another corporation to any
Guarantor and assumption by any such successor of the Guaranty of such Guarantor
(as set forth in Section 12.4) in accordance with Article XIII;
94
(7) to evidence the release of any Guarantor in accordance with
Article XII;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS.
Subject to Section 6.8, with the consent of the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Company and the Trustee, the
Company or any Guarantor, when authorized by Board Resolutions, and the Trustee
may amend or supplement this Indenture or the Securities or enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Securities or of modifying in any manner the rights of the
Holders under this Indenture or the Securities. Subject to Section 6.8, the
Holder or Holders of not less than a majority in aggregate principal amount of
then outstanding Securities may waive compliance by the Company or any Guarantor
with any provision of this Indenture or the Securities. Notwithstanding any of
the above, however, no such amendment, supplemental indenture or waiver shall
without the consent of the Holders of not less than 75% of the aggregate
principal amounts of Securities at the time outstanding alter the terms or
provisions of Section 11.1 or Section 11.2 in a manner adverse to the Holders;
and no such amendment, supplemental indenture or waiver shall, without the
consent of the Holder of each outstanding Security affected thereby:
(1) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof, or change
the place of payment where, or the coin or currency in which, any Security or
any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or in the case of redemption, on or after the Redemption Date), or
reduce the Change of Control Purchase Price or the Asset Sale Offer Price or
alter the provisions (including the defined terms used herein) regard-
95
ing the right of the Company to redeem the Securities in a manner adverse the
Holders; or
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such amendment,
supplemental indenture or wavier provided for in this Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provision of this Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby.
Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the Representative
on behalf of the Required Lenders amend, waive or otherwise modify the terms or
provisions of Article X in a manner adverse to the Lenders (as defined in the
New Credit Facility).
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
96
SECTION 9.3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder 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 his Security by written notice to the
Company or the Person designated by the Company as the Person to whom consents
should be sent if such revocation is received by the Company or such Person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (3) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only 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; PROVIDED, that any such
waiver shall not impair or affect the right of any Holder to re-
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ceive payment of principal and premium of and interest on a Security, on or
after the respective dates set for such amounts to become due and payable
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates.
SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Registrar or require the Holder to put an appropriate notation on the Security.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms. Any
failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment, supplement or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
SECTION 10.1. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company and the Guarantors and each Holder, by its acceptance of
Securities, agree that (a) the payment of the principal of and interest on the
Securities and (b) any other payment in respect of the Securities, including on
account of the acquisition or redemption of the Securities by the Company or the
Guarantors (including, without limita-
98
tion, pursuant to Article III or Section 4.1, 4.14, 11.1, 11.2 or Article XII is
expressly made and shall be subordinated in right of payment, to the extent and
in the manner provided in this Article X, to the prior payment in full in Cash
of all existing and future Senior Debt of the Company and the Guarantors and
that these subordination provisions are for the benefit of the holders of Senior
Debt.
This Article X shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior
Debt, and such holders are made obligees hereunder and any one or more of them
may enforce such provisions.
SECTION 10.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment (including any payment which may be payable to
any Holder by reason of the subordination of any other indebtedness or other
obligations to, or guarantee of, the Securities) or distribution (by set-off or
otherwise) shall be made by or on behalf of the Company or a Guarantor, as
applicable, on account of the Securities, including the principal of, premium,
if any, or interest on the Securities (including any repurchases of Securities)
or any other amounts with respect thereto or on account of the redemption
provisions of the Securities for cash or property (other than Junior
Securities), (i) upon the maturity of any Senior Debt of the Company or such
Guarantor by lapse of time, acceleration (unless waived) or otherwise, unless
and until all principal of, premium, if any, and the interest on, and all other
amounts with respect to, such Senior Debt shall first be paid in full in Cash or
otherwise to the extent each of the holders of Senior Debt accept satisfaction
of amounts due to such holder by settlement in other than Cash, or (ii) in the
event of default in payment of any principal of, or premium, if any, or interest
on, or any other amounts with respect to, Senior Debt of the Company or such
Guarantor when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise (each of the foregoing,
a "Payment Default") unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist.
(b) Upon (i) the happening of a default (other than a Payment
Default) that permits the holders of
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Senior Debt (or a percentage thereof) to declare such Senior Debt to be due and
payable and (ii) written notice of such default given to the Company and the
Trustee by the Representative under the Credit Facility or by the holders of an
aggregate of at least $25.0 million principal amount outstanding of any other
Senior Debt or their representative at such holders' direction (a "Payment
Notice"), then, unless and until such default has been cured or waived or
otherwise has ceased to exist, no payment (including any payment which may be
payable to any Holder by reason of the subordination of any other indebtedness
or other obligations to, or guarantee of, the Securities) or distribution (by
set-off or otherwise) may be made by or on behalf of the Company or any
Guarantor which is an obligor under such Senior Debt on account of the principal
of, premium, if any, or interest on the Securities (including any repurchases of
any of the Securities), or any other amount with respect thereto, or on account
of the redemption provision of the Securities, in any such case, other than
payments made with Junior Securities. Notwithstanding the foregoing, unless the
Senior Debt in respect of which such default exists has been declared due and
payable in its entirety within 179 days after the Payment Notice is delivered as
set forth above (such period being hereinafter referred to as the "Payment
Blockage Period") (and such declaration has not been rescinded or waived), at
the end of the Payment Blockage Period (and assuming that no Payment Default
Exists), unless Section 10.3 shall be applicable the Company and the Guarantors
shall not be prohibited by the subordination provisions from paying all sums
then due and not paid to the Holders of the Securities during the Payment
Blockage Period due to the foregoing prohibitions and to resume all other
payments as and when due on the Securities. Any number of Payment Notices may
be given; PROVIDED, HOWEVER; that (i) not more than one Payment Notice shall be
given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of delivery of such Payment Notice (whether or not such
event of default is on the same issue of Senior Debt) shall be made the basis
for the commencement of any other Payment Blockage Period.
(c) In furtherance of the provisions of Section 10.1, in the
event that, notwithstanding the foregoing provisions of this Section 10.2, any
payment or distribution of assets in respect of the Securities, including
principal of or interest on the Securities or to defease or acquire any of the
Securities (including repurchases of Securities
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pursuant to Section 4.14, 11.1 or 11.2) for Cash, property or securities
(excluding payments made with Junior Securities), or on account of the
redemption provisions of the Securities, shall be made by the Company or any
of the Guarantors and received by the Trustee, by any Holder or by any Paying
Agent (or, if the Company is acting as the Paying Agent, money for any such
payment shall be segregated and held in trust), at a time when such payment
or distribution was prohibited by the provisions of this Section 10.2, then,
unless such payment or distribution is no longer prohibited by this Section
10.2, such payment or distribution (subject to the provisions of Section
10.7) shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of the holders of Senior Debt of the Company or
such Guarantor, and shall be paid or delivered by the Trustee or such Holders
or such Paying Agent, as the case may be, to the holders of Senior Debt of
the Company or such Guarantor remaining unpaid or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Debt of the Company or such
Guarantor may have been issued, ratably according to the aggregate amounts
unpaid on account of such Senior Debt held or represented by each, for
application to the payment of all Senior Debt in full in Cash or otherwise to
the extent each of the holders of such Senior Debt accept satisfaction of
amounts due by settlement in other than Cash after giving effect to all
concurrent payments and distributions to or for the holders of such Senior
Debt.
SECTION 10.3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL
SENIOR DEBT ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or any Guarantor or
upon any dissolution, winding up, total or partial liquidation or
reorganization of the Company or any Guarantor, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding
or upon assignment for the benefit of creditors or any marshalling of assets
or liabilities:
(a) the holders of all Senior Debt of the Company or such
Guarantor, as applicable, shall first be entitled to receive payments in full
of all amounts of Senior Debt in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in
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other than Cash or before the Holders are entitled to receive any payment
(including any payment which may be payable to any Holder by reason of the
subordination of any other indebtedness or other obligations to, or guarantee
of, the Securities) or distribution on account of the principal of, premium,
if any, and any interest on, or other amounts with respect to, the Securities
(other than Junior Securities);
(b) any payment or distribution of assets of the Company or
such Guarantor of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities), to which the Holders
or the Trustee on behalf of the Holders would be entitled (by set-off or
otherwise) except for the provisions of this Article X, shall be paid by the
liquidating Trustee or agent or other person making such a payment or
distribution, directly to the holders of such Senior Debt or their
representative to the extent necessary to make payment in full on all such
Senior Debt remaining unpaid, after giving effect to all concurrent payments
or distributions to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company or any Guarantor (other than
the Junior Securities), shall be received by the Trustee or the Holders at a
time when such payment or distribution shall be prohibited by the foregoing
provisions, such payment or distribution shall be held in trust for the
benefit of the holders of such Senior Debt, and shall be paid or delivered by
the Trustee or such Holders, as the case may be, to the holders of such
Senior Debt remaining unpaid or to their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Debt held or represented by each,
for application to the payment of all such Senior Debt may have been issued,
ratably according to the aggregate principal amounts remaining unpaid on
account of such Senior Debt remaining unpaid, to the extent necessary to pay
all such Senior Debt in full in Cash or otherwise to the extent each of the
holders of such Senior Debt accept satisfaction of amounts due by settlement
in other than Cash after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
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SECTION 10.4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF
HOLDERS OF SENIOR DEBT.
Subject to the payment in full in Cash of all Senior Debt of the
Company or any Guarantor as provided herein, the Holders of Securities shall
be subrogated to the rights of the holders of such Senior Debt to receive
payments or distributions of assets of the Company applicable to the Senior
Debt until all amounts owing on the Securities shall be paid in full, and for
the purpose of such subrogation no such payments or distributions to the
holders of such Senior Debt by or on behalf of the Company or any Guarantor,
or by or on behalf of the Holders by virtue of this Article X, which
otherwise would have been made to the Holders shall, as between the Company
or any Guarantor and the Holders, be deemed to be payment by the Company or
any Guarantor or on account of such Senior Debt, it being understood that the
provisions of this Article X are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of such Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of
amounts payable under Senior Debt of the Company or any Guarantor, then the
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess
of the amount sufficient to pay all amounts payable under or in respect of
such Senior Debt in full in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash.
SECTION 10.5. OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company
and any Guarantors and the Holders, the obligation of each such Person, which
is absolute and unconditional, to pay to the Holders the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company
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and the Guarantors other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article X, of the
holders of Senior Debt in respect of Cash, property or securities of the
Company and the Guarantors received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article X or elsewhere in
this Indenture or in the Securities, upon any distribution of assets of the
Company and the Guarantors referred to in this Article X, the Trustee,
subject to the provisions of Sections 7.1 and 7.2, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
Trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Company or any Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article X. Nothing in this Section 10.5
shall apply to the claims of, or payments to, the Trustee under or pursuant
to Section 7.7.
Subject to the provisions of Section 7.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a trustee or agent on
behalf of such holder) to establish that such notice has been given by a
holder of Senior Debt (or a trustee or agent on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of a person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article X, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article X, and if such evidence is not furnished, the
Trustee may defer any payment which it
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may be required to make for the benefit of such person pursuant to the terms
of this Indenture pending judicial determination as to the rights of such
person to receive such payment.
SECTION 10.6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT
PROHIBITED IN ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received, no later than one Business Day prior to such payment, written
notice thereof from the Company or from one or more holders of Senior Debt or
from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and
7.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH
IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Securityholders
and, to the extent (i) the making of such deposit by the Company shall not be
in contravention of any term or provision of the New Credit Facility and (ii)
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article X. Otherwise, any deposit of assets
with the Trustee or the Agent (whether or not in trust) for the payment of
principal of or interest on any Securities shall be subject to the provisions
of Sections 10.1, 10.2, 10.3 and 10.4.
SECTION 10.8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge
thereof which any such
105
holder may have or be otherwise charged with. The holders of Senior Debt may
at any time and from time to time without the consent of or notice to the
Trustee or the Holders of the Securities without incurring any responsibility
to the Holders extend, renew, modify or amend the terms of the Senior Debt or
any security therefor and release, sell or exchange such security and
otherwise deal freely with the Company and the Guarantors and any person
liable in any manner for the collection of Senior Debt, all without affecting
the subordination provisions or liabilities or obligations of the parties to
this Indenture or the Holders or to the holders of the Senior Debt.
SECTION 10.9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of assets and liabilities of the
Company or any Guarantor), the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
the Senior Debt or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Securities. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Debt or their representative to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior Debt or
their representative to vote in respect of the claim of any Securityholder in
any such proceeding.
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SECTION 10.10. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this
Article X shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 6.1 or in any way prevent the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
SECTION 10.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders (other
than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the
Company, any Guarantor or any other Person, cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article
X or otherwise. Nothing in this Section 10.12 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Debt or their representative.
With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically
set forth in this Article X and no implied covenants or obligations with
respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
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ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
UPON A CHANGE OF CONTROL.
(a) In the event that a Change of Control has occurred, each
Holder shall have the right, at such Holder's option, pursuant to an
irrevocable and unconditional offer by the Company (the "Change of Control
Offer"), to require the Company to repurchase all or any part of such
Holder's Securities (PROVIDED, that the principal amount of such Securities
at maturity must be $1,000 or an integral multiple thereof) on a date (the
"Change of Control Purchase Date") that is no later than 35 Business Days
after the Occurrence of such Change of Control, at a cash price (the "Change
of Control Purchase Price") equal to 101% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
(b) In the event of a Change of Control, the Company shall be
required to commence a Change of Control Offer as follows:
(1) the Change of Control Offer shall commence within 10
Business Days following the occurrence of the Change of Control;
(2) the Change of Control Offer shall remain open for 20
Business Days, except to the extent that a longer period is required by
applicable law, but in any case not more than 35 Business Days following
commencement (the "Change of Control Offer Period");
(3) upon the expiration of a Change of Control Offer, the
Company shall promptly purchase all of the properly tendered Securities at
the Change of Control Purchase Price;
(4) if the Change of Control Payment Date is on or after a
Record Date and on or before the related interest payment date, any accrued
interest will be paid to the Person in whose name a Security is registered
at the close of business on such Record Date, and no additional interest
will be payable to
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Securityholders who tender Securities pursuant to the Change of Control
Offer;
(5) the Company shall provide the Trustee and the Paying Agent
with notice of the Change of Control Offer at least three Business Days
before the commencement of any Change of Control Offer; and
(6) on or before the commencement of any Change of Control
Offer, the Company or the Registrar (upon the request and at the expense of
the Company) shall send, by first-class mail, a notice to each of the
Securityholders, which (to the extent consistent with this Indenture) shall
govern the terms of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is being made
pursuant to such notice and this Section 11.1 and that all Securities, or
portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the
amount of accrued and unpaid interest, subject to clause (b)(4) above), the
Change of Control Purchase Date and the Change of Control Put Date (as
defined below);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the last paragraph of this Section
11.1 or such payment is prevented, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be required
to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying
Agent (which may not for purposes of this Section 11.1, notwithstanding
anything in this Indenture to the contrary, be the Company or any Affil-
109
iate of the Company) at the address specified in the notice prior to the
close of business on the earlier of (a) the third Business Day prior to the
Change of Control Payment Date and (b) the third Business Day following the
expiration of the Change of Control Offer (such earlier date being the
"Change of Control Put Date");
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this Indenture
to the contrary, be the Company or any Affiliate of the Company) receives,
up to the close of business on the Change of Control Put Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the Holder is withdrawing and a statement that
such Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(vii) a brief description of the events resulting in such
Change of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered pursuant
to the Change of Control Offer on or before the Change of Control Put Date, (ii)
deposit with the Paying Agent Cash sufficient to pay the Change of Control
Purchase Price for all Securities or portions thereof so tendered and (iii)
deliver to the Registrar Securities so accepted together with an Officers'
Certificate listing the aggregate principal amount of the Securities or portions
thereof being purchased by the Company. The Paying Agent shall on the Change of
Control Purchase Date or promptly thereafter mail to Holders of Securities so
accepted payment in an amount equal to the Change of Control Purchase Price for
such Securities, and the Trustee or its authenticating agent shall promptly
authenticate and the Registrar shall mail or deliver (or cause to be transferred
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by book entry) to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered; provided, however, that
each such new Security will be in a principal amount of $1,000 or an integral
multiple thereof. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the consummation thereof.
ARTICLE XII
GUARANTY
SECTION 12.1. GUARANTY.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the
Guarantors hereby irrevocably and unconditionally guarantees (the
"Guaranty"), jointly and severally, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company under this
Indenture or the Securities, that: (w) the principal and premium (if any) of
and interest on the Securities will be paid in full when due, whether at the
Maturity Date or Interest Payment Date, by acceleration, call for redemption,
upon a Change of Control Offer, upon an Asset Sale Offer or otherwise; (x)
all other obligations of the Company to the Holders or the Trustee under this
Indenture or the Securities will be promptly paid in full or performed, all
in accordance with the terms of this Indenture and the Securities; and (y) in
case of any extension of time of payment or renewal of any Securities or any
of such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity,
by acceleration, call for redemption, upon a Change of Control Offer, upon an
Asset Sale Offer or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Guarantor shall be jointly and severally
obligated to pay the same before failure so to pay becomes an Event of
Default. If the Company or a Guarantor defaults in the payment of the
principal of, premium, if any, or interest on, the Securities when and as the
same shall become due, whether upon
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maturity, acceleration, call for redemption, upon a Change of Control Offer,
upon an Asset Sale Offer or otherwise, without the necessity of action by the
Trustee or any Holder, each Guarantor shall be required, jointly and
severally, to promptly make such payment in full.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any delays in obtaining or realizing upon
or failures to obtain or realize upon collateral, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge
or defense of a guarantor (except as provided in Sections 12.4 and 12.5).
Each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company or right
to require the prior disposition of the assets of the Company to meet its
obligations, protest, notice and all demands whatsoever and covenants that
this Guaranty will not be discharged (except to the extent released pursuant
to Section 12.4 or 12.5) except by complete performance of the obligations
contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian,
trustee, or similar official acting in relation to the Company or such
Guarantor, any amount paid by either the Company or such Guarantor to the
Trustee or such Holder, this Guaranty, to the extent theretofore discharged,
shall be reinstated in full force and effect (except to the extent released
pursuant to Section 12.4 or 12.5). Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.2 for the purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company of the obligations guaranteed hereby, and (ii)
in the event of any declaration of acceleration of
112
those obligations as provided in Section 6.2, those obligations (whether or
not due and payable) will forthwith become due and payable by each of the
Guarantors for the purpose of this Guaranty.
(d) Each Guarantor and by its acceptance of a Security issued
hereunder each Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor set forth in Section 12.1(a) not
constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its guarantee set forth in Section
12.1(a) shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
its guarantee or pursuant to the following paragraph of this Section 12.1(d),
result in the obligations of such Guarantor under such guarantee not
constituting such a fraudulent transfer or conveyance.
Each Guarantor that makes any payment or distribution under Section
12.1(a) shall be entitled to a contribution from each other Guarantor equal
to its Pro Rata Portion of such payment or distribution. For purposes of the
foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of
the net assets of all Guarantors held by such Guarantor, determined in
accordance with GAAP.
(e) It is the intention of each Guarantor and the Company
that the obligations of each Guarantor hereunder shall be joint and several
and in, but not in excess of, the maximum amount permitted by applicable law.
Accordingly, if the obligations in respect of the Guaranty would be annulled,
avoided or subordinated to the creditors of any Guarantor by a court of
competent jurisdiction in a proceeding actually pending before such court as
a result of a determination both that such Guaranty was made without fair
consideration and, immediately after giving effect thereto, such Guarantor
was insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of such Guarantor under such
Guaranty shall be reduced by such court if and to the extent
113
such reduction would result in the avoidance of such annulment, avoidance or
subordination; PROVIDED, HOWEVER, that any reduction pursuant to this
paragraph shall be made in the smallest amount as is strictly necessary to
reach such result. For purposes of this paragraph, "fair consideration",
"insolvency", "unable to pay its debts as they mature", "unreasonably small
capital" and the effective times of reductions, if any, required by this
paragraph shall be determined in accordance with applicable law.
SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY.
Each Guarantor shall be deemed to have signed on each Security
issued hereunder the notation of guarantee set forth on the form of the
Securities attached hereto as Exhibit A to the same extent as if the
signature of such Guarantor appeared on such Security. The delivery of any
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the guaranty set forth in Section 12.1 on behalf
of each Guarantor. The notation of a guaranty set forth on any Security shall
be null and void and of no further effect with respect to the guaranty of any
Guarantor which, pursuant to Section 12.4 or Section 12.5, is released from
such guaranty.
SECTION 12.3. SUBSIDIARY GUARANTORS.
(i) All present Subsidiaries of the Company and their Subsidiaries
(other than the Excluded Subsidiaries), and (ii) all future Subsidiaries of
the Company and their Subsidiaries (other than Excluded Subsidiaries), which
are not prohibited from becoming guarantors by law or by the terms of any
Acquired Indebtedness or any agreement (other than an agreement entered into
in connection with the transaction resulting in such person becoming a
Subsidiary of the Company or its Subsidiaries) to which such Subsidiary is a
party ("Future Subsidiary Guarantors"), jointly and severally, will guaranty
irrevocably and unconditionally all principal, premium, if any, and interest
on the Securities on a senior subordinated basis; PROVIDED, HOWEVER, that
upon any change in the law, Acquired Indebtedness or any agreement (whether
by expiration, termination or otherwise) which no longer prohibits a
Subsidiary of the Company from becoming a Subsidiary Guarantor, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor;
PROVIDED, FURTHER, in the event that any Subsidiary of the Company or
114
their Subsidiaries becomes a guarantor of any other Indebtedness of the
Company or any of its Subsidiaries or any of their Subsidiaries, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor.
SECTION 12.4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or any other Guarantor. Upon any such consolidation or
merger, the guarantees (as set forth in Section 12.1) of the Guarantor which
is not the survivor of the merger or consolidation, and of any Subsidiary of
such Guarantor that is also a Guarantor, shall be released and shall no
longer have any force or effect.
(b) Nothing contained in this Indenture shall prevent any
sale or conveyance of assets of any Guarantor (whether or not constituting
all or substantially all of the assets of such Guarantor) to any Person,
provided that the Company shall comply with the provisions of Section 4.14
and 4.17, and provided further that, in the event that all or substantially
all of the assets of a Guarantor are sold or conveyed, the guarantees of such
Guarantor (as set forth in Section 12.1) shall be released and shall no
longer have any force or effect.
(c) Except as provided in Section 12.4(a) or Section 12.5,
each Guarantor shall not, directly or indirectly, consolidate with or merge
with or into another Person, unless (i) either (a) the Guarantor is the
continuing entity or (b) the resulting or surviving entity is a corporation
organized under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all of
the obligations of the Guarantor in connection with the Securities and this
Indenture; (ii) no Default or Event of Default would occur as a consequence
of (after giving effect, on a PRO FORMA basis, to) such transaction; and
(iii) the Guarantor has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation or merger and if
a supplemental indenture is required, such supplemental indenture comply with
this Indenture and that all conditions precedent herein relating to such
transaction have been satisfied.
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(d) Upon any consolidation or merger of a Guarantor in
accordance with Section 12.4 hereof, the successor corporation formed by such
consolidation or into which the Guarantor is merged shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation
had been named herein as the Guarantor, and when a successor corporation duly
assumes all of the obligations of the Guarantor pursuant hereto and pursuant
to the Securities, the Guarantor shall be released from such obligations.
SECTION 12.5. RELEASE OF GUARANTORS.
(a) Without any further notice or action being required by
any Person, any Guarantor, and each Subsidiary of such Guarantor that is also
a Guarantor, shall be fully and conditionally released and discharged from
all obligations under its guarantee and this Indenture, upon (i) the sale or
other disposition of all or substantially all of the assets or properties of
such Guarantor, or 50% or more of the Equity Interests of any such Guarantor
to Persons other than the Company and their Subsidiaries or (ii) the
consolidation or merger of any such Guarantor with any Person other than the
Company or a Subsidiary of the Company, if, as a result of such consolidation
or merger, Persons other than the Company and their Subsidiaries beneficially
own more than 50% of the capital stock of such Guarantor, PROVIDED that, in
either such case, the Net Cash Proceeds of such sale, disposition, merger or
consolidation are applied in accordance with Section 4.14 of this Indenture;
or (iii) a Legal Defeasance or Covenant Defeasance, as set forth in Article
VIII.
(b) The releases and discharges set forth in Section 12.5(a)
shall be effective (i) in the case of releases and discharges effected
pursuant to clause (i) or (ii) of Section 12.5(a) by virtue of a sale,
disposition, consolidation or merger, on the date of consummation thereof and
(ii) in the case of releases and discharges effected pursuant to clause (iii)
of Section 12.5(a), upon the date of Covenant Defeasance or Legal Defeasance,
as applicable. At the written request of the Company, the Trustee shall
promptly execute and deliver appropriate instruments in forms reasonably
acceptable to the Company evidencing and further implementing any releases
and discharges pursuant to
116
the foregoing provisions. If the Company desires the instruments evidencing
or implementing any releases or discharges to be executed prior to the
effectiveness of such releases and discharges as set forth above, such
instruments may be made conditional upon the occurrence of the events
necessary to cause the effectiveness of such releases and discharges, as
specified in the first sentence of this Section 12.5.
(c) Notwithstanding the foregoing provisions of this Article
XII, (i) any Guarantor whose guarantee would otherwise be released pursuant
to the provisions of this Section 12.5 may elect, by written notice to the
Trustee, to maintain such guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such guarantee (which
election to maintain such guarantee in effect may be conditional or for a
limited period of time), and (ii) any Subsidiary of the Company which is not
a Guarantor may elect, by written notice to the Trustee, to become a
Guarantor (which election may be conditional or for a limited period of time).
SECTION 12.6. CERTAIN BANKRUPTCY EVENTS.
Each Guarantor hereby covenants and agrees, to the fullest extent
that it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, such
Guarantor shall not file (or join in any filing of), or otherwise seek to
participate in the filing of, any motion or request seeking to stay or to
prohibit (even temporarily) execution on the Guaranty and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the Bankruptcy Law or otherwise.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
117
SECTION 13.2. NOTICES.
Any notices or other communications to the Company or any
Guarantor, Paying Agent, Registrar, Securities Custodian, transfer agent or
the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or any Guarantor:
Jacor Communications Company
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or
made as of the date so delivered, if personally delivered; when receipt is
acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be
118
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, such Person shall
furnish to the Trustee:
(1) an Officers' Certificate (in form and
substance reasonably satisfactory to the Trustee) 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 met; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee), stating that, in the opinion
of such counsel, all such conditions precedent have been met;
PROVIDED, HOWEVER, that in the case of any such request or application
as to which the furnishing of particular documents is specifically
required by any pro-
119
vision of this Indenture, no additional certificate or opinion need be
furnished under this Section 13.4.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) 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;
(3) 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 met; and
(4) a statement as to whether or not, in the
opinion of each such Person, such condition or covenant has been met;
PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
120
SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 13.7. NON-BUSINESS DAYS.
If a payment date is not a Business Day at such place, payment may
be made at such place on the next succeeding day that is a Business Day, and
no interest shall accrue for the intervening period.
SECTION 13.8. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE
COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN ANY OTHER
JURISDICTION.
121
SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future of the Company, the Guarantors or
any successor entity, shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or this
Indenture by reason of his or its status as such stockholder, partner,
employee, officer or director. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provi-
122
sions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the 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 13.15. REGISTRATION RIGHTS.
Certain Holders of Securities may be entitled to certain
registration rights with respect to such Securities pursuant to, and subject
to the terms of, the Registration Rights Agreement.
123
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
JACOR COMMUNICATIONS COMPANY
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President, Chief
Financial Officer & Secretary
PARENT GUARANTOR
JACOR COMMUNICATIONS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President, Chief
Financial Officer & Secretary
SUBSIDIARY GUARANTORS:
BROADCAST FINANCE, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
CINE FILMS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
124
CINE GUARANTORS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
CINE GUARANTORS II, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
CINE GUARANTORS II, LTD.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
CINE MOBILE SYSTEMS INT'L N.V.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
CINE MOVIL S.A. DE C.V.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
125
CITICASTERS CO.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
EFM PROGRAMMING, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
F.M.I. PENNSYLVANIA, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
GACC-N26LB, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
GACC-340, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
126
GEORGIA NETWORK EQUIPMENT, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
GREAT AMERICAN MERCHANDISING GROUP, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
GREAT AMERICAN TELEVISION PRODUCTIONS,
INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
INMOBILARIA RADIAL, S.A. DE C.V.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING CORPORATION
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
127
JACOR BROADCASTING OF ATLANTA, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF COLORADO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF FLORIDA, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF KNOXVILLE, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
128
JACOR BROADCASTING OF ST. LOUIS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF SAN DIEGO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF SARASOTA, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF TAMPA BAY, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
129
JACOR CABLE, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
LOCATION PRODUCTIONS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
LOCATION PRODUCTIONS II, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST CENTER, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST GROUP, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
130
NOBLE BROADCAST HOLDINGS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST LICENSES, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST OF COLORADO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST OF ST. LOUIS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST OF SAN DIEGO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
131
NOBLE BROADCAST OF TOLEDO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
NOBRO, S.C.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Treasurer
NOVA MARKETING GROUP, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF CHARLESTON, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF KANSAS CITY, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
132
REGENT BROADCASTING OF LAS VEGAS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF LAS VEGAS II,
INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF LOUISVILLE, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF LOUISVILLE II,
INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
133
REGENT BROADCASTING OF SALT LAKE CITY,
INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT BROADCASTING OF SALT LAKE CITY
II, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF CHARLESTON, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF KANSAS CITY, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
134
REGENT LICENSEE OF LAS VEGAS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF LAS VEGAS II, INC
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF LOUISVILLE, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF LOUISVILLE II, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
135
REGENT LICENSEE OF SALT LAKE CITY, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
REGENT LICENSEE OF SALT LAKE CITY II,
INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
SPORTS RADIO BROADCASTING, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
SPORTS RADIO, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
XXXX-TCI SATELLITE SERVICES, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
136
THE XX XXXXXXX COMPANY AGENCY, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
WHOK, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
VTTV PRODUCTIONS
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
137
PREMIERE RADIO NETWORKS, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President
JACOR/PREMIERE HOLDING, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President and
Assistant Secretary
AFTER MIDNITE ENTERTAINMENT, INC.
By: /s/ R. XXXXXXXXXXX XXXXX
-----------------------------------
Name: R. Xxxxxxxxxxx Xxxxx
Title: Senior Vice President
000
XXX XXXX XX XXX XXXX, as Trustee
By: /s/ XXXXXXX XXXXXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Assistant Vice President
139
Exhibit A
[FORM OF SECURITY]
JACOR COMMUNICATIONS COMPANY
8 3/4% SERIES A(1) SENIOR SUBORDINATED NOTE
DUE 2007
CUSIP:
No. $ _________
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company" which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to _______,
or registered assigns, the principal sum of _____ Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15; commencing December
15, 1997.
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated:
Jacor Communications Company
a Florida corporation
By:
------------------------------------
Name:
Title:
Attest:
-----------
Secretary
-----------
(1) Series A should be replaced with Series B in the Exchange
Securities.
A-1
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee
By:
---------------------
Authorized Signatory
Dated:
A-2
JACOR COMMUNICATIONS COMPANY
8 3/4% SERIES A(2) SENIOR SUBORDINATED NOTE
DUE 2007
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("XXX"), to the Company or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. , has an interest herein.(3)
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE
------------------
(2) Series A should be replaced with Series B in the Exchange
Security.
(3) This paragraph should only be added if the Security is issued in
global form.
A-3
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES
ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY GUARANTOR, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS
A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) TO AN IAI WHICH PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO JCC THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN THEM BY RULE 902 OF REGULATION
S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS. (4)
1. INTEREST.
------------------
(4) This paragraph should be included only for the Initial
Securities.
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Jacor Communications Company, a Florida corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of 8 3/4% per annum from the date of issuance until
maturity. To the extent it is lawful, the Company promises to pay interest on
any interest payment due but unpaid on such principal amount at a rate of 8 3/4%
per annum compounded semi-annually.
The Company will pay interest semi-annually on June 15 and December 15
of each year or, if any such day is not a Business Day, on the next succeeding
Business Day (each, an "Interest Payment Date"), commencing December 15, 1997.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
the date of issuance. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on June 1 and December 1 immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Company shall pay principal and
interest in such coin or currency of the United States of America as at the time
of payment shall be legal tender for payment of public and private debts
("Cash"). The Securities will be payable as to principal, premium and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York or, at the option of the Company, payment
of principal, premium and interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest and premium on all Global Securities and all other
Securities the Holders of which shall have provided written wire transfer
instructions to the Company or the Paying Agent at least 15 days prior to the
date for payment.
3. PAYING AGENT AND REGISTRAR.
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Initially, The Bank of New York will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of June
17, 1997 (the "Indenture"), among the Company, Jacor Communications, Inc., a
Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors named
therein (the "Subsidiary Guarantors" together with the Parent Guarantor, the
"Guarantors"), and The Bank of New York (the "Trustee" which term includes any
successor Trustee under the Indenture). Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act, as in effect on the date of
the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are senior subordinated obligations of the Company limited in
aggregate principal amount to $150,000,000. The Securities are, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be provided in the Indenture
and (c) appoints the Trustee his attorney-in-fact for such purpose. The
Securities are guaranteed on a senior subordinated basis by the Guarantors.
5. REDEMPTION.
The Securities may be redeemed, in whole or in part, at any time on or
after June 15, 2002, at the option of the Company, at the Redemption Price
(expressed as a percentage of principal amount) set forth below with respect to
the indicated Redemption Date, in each case (subject to the right of Holders of
record on a Record Date that is on or prior to such Redemption Date to receive
interest due on the
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Interest Payment Date to which such Record Date relates), plus any accrued but
unpaid interest to the Redemption Date. The Securities may not be so redeemed
prior to June 15, 2002.
If redeemed during
the 12-month period
commencing June 15, Redemption Price
-------------------- --------------------
2002 . . . . . . . . . 104.375%
2003 . . . . . . . . . 102.917%
2004 . . . . . . . . . 101.458%
2005 and thereafter. . 100.000%
Any such redemption will comply with Article III of the Indenture.
6. NOTICE OF REDEMPTION.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date and payment of
the Securities called for redemption is not otherwise prohibited, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
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of or exchange any Securities (a) selected for redemption except the unredeemed
portion of any Security being redeemed in part or (b) for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase or
redemption and ending at the close of business on the day of such mailing.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, Cash, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the
Securities to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the restrictive
covenants described in paragraph 12 below, but excluding their obligation to pay
the principal of and interest on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance
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with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding. An amendment,
supplement or waiver with respect to Section 11.1 (Change of Control Offer) in a
manner adverse to the Holders, requires not less than 75% of the aggregate
principal amount of the Securities then outstanding. Without notice to or
consent of any Holder, the parties thereto may under certain circumstances amend
or supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Security.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and the Guarantors to, among other things, incur additional Indebtedness
and Disqualified Equity Interests, pay dividends or make certain other
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Company must periodically report to the
Trustee on compliance with such limitations.
13. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with accrued interest to the Change of Control Purchase Date. Holders
of Securities will receive a Change of Control Offer from the Company prior to
any related Change of Control Purchase Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Guarantors or any of their respective Subsidiaries to sell assets.
In the event the proceeds from a permitted Asset Sale exceed certain amounts, as
specified in the Indenture, the Company will be required to use the proceeds of
such Asset Sale in the manner re-
A-9
quired by the Indenture, including (i) to reinvest such proceeds in its
business, (ii) to repay Senior Debt, (iii) to make an offer to purchase the
10 1/8% Notes, (iv) to make an offer to purchase the 9 3/4% Notes or (v) to make
an offer to purchase a certain amount of each Holder's Securities at 100% of the
principal amount thereof, plus accrued interest, if any, to the purchase date.
14. NOTATION OF GUARANTY.
As set forth more fully in the Indenture, the Persons constituting
Guarantors from time to time, in accordance with the provisions of the
Indenture, unconditionally and jointly and severally guarantee, in accordance
with Section 12.1 of the Indenture, to the Holder and to the Trustee and its
successors and assigns, that (i) the principal of and interest on the Security
will be paid, whether at the Maturity Date or Interest Payment Dates, by
acceleration, call for redemption upon a Change of Control Offer, upon an Asset
Sale Offer or otherwise, and all other obligations of the Company to the Holder
or the Trustee under the Indenture or this Security will be promptly paid in
full or performed, all in accordance with the terms of the Indenture and this
Security, and (ii) in the case of any extension of payment or renewal of this
Security or any of such other obligations, they will be paid in full when due or
performed in accordance with the terms of such extension or renewal, whether at
the Maturity Date, as so extended, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise. Such guarantees
shall cease to apply, and shall be null and void, with respect to any Guarantor
who, pursuant to Article XII of the Indenture, is released from its guarantees,
or whose guarantees otherwise cease to be applicable pursuant to the terms of
the Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every
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such case, unless the principal of all of the Securities shall have already
become due and payable, either the Trustee or the Holders of 25% in aggregate
principal amount of Securities then outstanding may declare all the Securities
to be due and payable immediately in the manner and with the effect provided in
the Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest), if it determines that withholding notice is
in their interest.
17. TRUSTEE OR AGENT DEALINGS WITH THE COMPANY.
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates as if it were not the Trustee and such Agent.
18. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future, of the Company, the Guarantors or
any successor entity shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or the
Indenture by reason of his or its status as such stockholder, partner, employee,
officer or director. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
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20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. (5)
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in the
Registration Rights Agreement.
23. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Jacor Communications Company
00 Xxxx XxxxxXxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
24. GOVERNING LAW.
--------------------
(5) This paragraph shall be included only for the Initial Securities.
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The Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York.
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FORM OF ASSIGNMENT
I or we assign this Security to
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
-------------------------
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
---------- --------------------------------------------
-----------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guaranty*
--------------------------
* NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee programs: (I) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The New York Stock Exchange Medallion
Program (SEMP) or (iv) in such other guarantee program acceptable to the
Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box: / / Section 4.14 / /Section 11.1
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or Article XI of the Indenture, as the case
may be, state the amount you want to be purchased: $________
Date: Signature:
---------------- -----------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guaranty**
--------------------
** NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(I) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New
York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP) or (iv) in such other guarantee program acceptable
to the Trustee.
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(6)
The following exchanges of a part of this Global Security for Definitive Securities have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized Signa
Principal Amount Principal Amount Security following tory of Trustee or
Date of of this Global of this Global such decrease (or Securities
Exchange Security Security increase) Custodian
----------------------------------------------------------------------------------------------------------
---------------------
(6) This schedule should only be added if the Security is issued in global
form.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES(7)
Re: 8 3/4% SERIES A SENIOR SUBORDINATED NOTES DUE 2007 OF JACOR COMMUNICATIONS
COMPANY
This Certificate relates to $______ principal amount of Securities held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
/ / has requested the Registrar by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ / has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Securities and as provided in Section
2.6 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because:
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
---------------------
(7) This certificate shall be included only for the Initial Securities.
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/ / Such Security is being transferred to a "qualified institutional
buyer" (within the meaning of Rule 144A promulgated under the Securities Act),
that is aware that any sale of Securities to it will be made in reliance on Rule
144A under the Securities Act and that is acquiring such Transfer Restricted
Security for its own account, or for the account of another such "qualified
institutional buyer" (in satisfaction of Section 2.06(a)(ii)(B) or Section 2.06
(d)(i)(B) of the Indenture).
/ / Such Security is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or Regulation S under the Securities
Act, or pursuant to an effective registration statement under the Securities Act
(in satisfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the
Indenture).
/ / Such Security is being transferred to an institutional "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act, that is purchasing such Security for its own account
or for the account of such an institutional "accredited investor" in each case
in a minimum principal amount of $250,000, not with a view to or for offer for
sale in connection with any distribution in violation of the Securities Act. A
signed transferee letter of representation accompanies this Certificate (in
satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of the Indenture)
-------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------
Date:
---------------------
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES(8)
Re: 8 3/4% SERIES B SENIOR SUBORDINATED NOTES DUE 2007 OF
JACOR COMMUNICATIONS COMPANY
This Certificate relates to $______ principal amount of
Securities held in (check applicable box) _____ book-entry or ______ definitive
form by _____ (the "Transferor").
The Transferor (check applicable box):
/ /
has requested the Registrar by written order to deliver
in exchange for its beneficial interest in the Global Security held by the
Depositary a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ /
has requested the Registrar by written order to
exchange or register the transfer of a Security or Securities.
-------------------------
(8) This certificate shall be included only for the Exchange Securities.
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