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EXHIBIT 4.1
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INDENTURE
DATED AS OF MARCH 3, 1998
AMONG
LIN ACQUISITION COMPANY, AS ISSUER,
AND
THE GUARANTORS NAMED HEREIN
AND
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE
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$300,000,000
8 3/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES A
8 3/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B
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CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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ss.310(a)(1)....................................................................... 8.10
(a)(2)........................................................................ 8.10
(a)(3)........................................................................ N.A.
(a)(4)........................................................................ N.A.
(a)(5)........................................................................ 8.08, 8.10
(b)........................................................................... 8.08; 8.10; 13.02
(c)........................................................................... N.A.
ss.311(a).......................................................................... 8.11
(b)........................................................................... 8.11
(c)........................................................................... N.A.
ss.312(a)........................................................................... 2.05
(b)........................................................................... 13.03
(c)........................................................................... 13.03
ss.313(a)........................................................................... 8.06
(b)(1)........................................................................ N.A.
(b)(2)........................................................................ 8.06
(c)........................................................................... 8.06; 13.02
(d)........................................................................... 8.06
ss.314(a)........................................................................... 4.11; 4.12, 13.02
(b)........................................................................... N.A.
(c)(1)........................................................................ 13.04
(c)(2)........................................................................ 13.04
(c)(3)........................................................................ N.A.
(d)........................................................................... N.A.
(e)........................................................................... 13.05
(f)........................................................................... N.A.
ss.315(a)........................................................................... 8.01(b)
(b)........................................................................... 8.05; 13.02
(c)........................................................................... 8.01(a)
(d)........................................................................... 8.01(c)
(e)........................................................................... 6.11
ss.316(a)(last sentence)............................................................ 2.09
(a)(1)(A)..................................................................... 6.05
(a)(1)(B)..................................................................... 6.04
(a)(2)........................................................................ N.A.
(b)........................................................................... 6.07
(c)........................................................................... 10.04
ss.317(a)(1)........................................................................ 6.08
(a)(2)........................................................................ 6.09
(b)........................................................................... 2.04
ss.318(a)........................................................................... 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..............................................17
SECTION 1.03. Rules of Construction..........................................................................17
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating................................................................................18
SECTION 2.02. Execution and Authentication...................................................................18
SECTION 2.03. Registrar and Paying Agent.....................................................................19
SECTION 2.04. Paying Agent To Hold Assets in Trust...........................................................20
SECTION 2.05. Holder Lists...................................................................................20
SECTION 2.06. Transfer and Exchange..........................................................................20
SECTION 2.07. Replacement Securities.........................................................................21
SECTION 2.08. Outstanding Securities.........................................................................21
SECTION 2.09. Treasury Securities............................................................................21
SECTION 2.10. Temporary Securities...........................................................................22
SECTION 2.11. Cancellation...................................................................................22
SECTION 2.12. Defaulted Interest.............................................................................22
SECTION 2.13. CUSIP Number...................................................................................23
SECTION 2.14. Deposit of Moneys..............................................................................23
SECTION 2.15. Book-Entry Provisions for Global Securities....................................................23
SECTION 2.16. Registration of Transfers and Exchanges........................................................24
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.............................................................................27
SECTION 3.02. Selection of Securities To Be Redeemed.........................................................28
SECTION 3.03. Notice of Redemption...........................................................................28
SECTION 3.04. Effect of Notice of Redemption.................................................................29
SECTION 3.05. Deposit of Redemption Price....................................................................29
SECTION 3.06. Securities Redeemed in Part....................................................................29
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities..........................................................................30
SECTION 4.02. Maintenance of Office or Agency................................................................30
SECTION 4.03. Limitation on Transactions with Affiliates.....................................................30
SECTION 4.04. Limitation on Incurrence of Additional Indebtedness and Issuance of
Capital Stock..........................................................................31
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SECTION 4.05. Limitation on Layering.........................................................................31
SECTION 4.06. Payments for Consents..........................................................................31
SECTION 4.07. Limitation on Investment Company Status........................................................31
SECTION 4.08. Limitation on Asset Sales......................................................................32
SECTION 4.09. Limitation on Asset Swaps......................................................................33
SECTION 4.10. Limitation on Restricted Payments..............................................................33
SECTION 4.11. Notice of Defaults.............................................................................35
SECTION 4.12. Reports........................................................................................35
SECTION 4.13. Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.......35
SECTION 4.14. Subsidiary Guarantees by Restricted Subsidiaries...............................................36
SECTION 4.15. Change of Control..............................................................................36
SECTION 4.16. Limitation on Liens............................................................................38
SECTION 4.17. Compliance Certificate.........................................................................39
SECTION 4.18. Corporate Existence............................................................................39
SECTION 4.19. Maintenance of Properties and Insurance........................................................39
SECTION 4.20. Payment of Taxes and Other Claims..............................................................39
SECTION 4.21. Waiver of Stay, Extension or Usury Laws........................................................40
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc...................................................................40
SECTION 5.02. Successor Corporation Substituted..............................................................41
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..............................................................................41
SECTION 6.02. Acceleration...................................................................................42
SECTION 6.03. Other Remedies.................................................................................43
SECTION 6.04. Waiver of Past Default.........................................................................43
SECTION 6.05. Control by Majority............................................................................44
SECTION 6.06. Limitation on Suits............................................................................44
SECTION 6.07. Rights of Holders To Receive Payment...........................................................44
SECTION 6.08. Collection Suit by Trustee.....................................................................45
SECTION 6.09. Trustee May File Proofs of Claim...............................................................45
SECTION 6.10. Priorities.....................................................................................45
SECTION 6.11. Undertaking for Costs..........................................................................46
ARTICLE SEVEN
SUBORDINATION OF SECURITIES
SECTION 7.01. Agreement To Subordinate.......................................................................46
SECTION 7.02. Liquidation, Dissolution, Bankruptcy...........................................................46
SECTION 7.03. Default on Senior Indebtedness.................................................................47
SECTION 7.04. Acceleration of Payment of Securities..........................................................47
SECTION 7.05. When Distribution Must Be Paid Over............................................................48
SECTION 7.06. Subrogation....................................................................................48
SECTION 7.07. Relative Rights................................................................................48
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SECTION 7.08. Subordination May Not Be Impaired by Company...................................................48
SECTION 7.09. Rights of Trustee and Paying Agent.............................................................49
SECTION 7.10. Distribution or Notice to Representative.......................................................49
SECTION 7.11. Article Seven Not To Prevent Events of Default or Limit Right To Accelerate....................49
SECTION 7.12. Trust Moneys Not Subordinated..................................................................49
SECTION 7.13. Trustee Entitled To Rely.......................................................................49
SECTION 7.14. Trustee To Effectuate Subordination............................................................50
SECTION 7.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.......................................50
SECTION 7.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions.........................50
ARTICLE EIGHT
TRUSTEE
SECTION 8.01. Duties of Trustee..............................................................................50
SECTION 8.02. Rights of Trustee..............................................................................51
SECTION 8.03. Individual Rights of Trustee...................................................................52
SECTION 8.04. Trustee's Disclaimer...........................................................................53
SECTION 8.05. Notice of Defaults.............................................................................53
SECTION 8.06. Reports by Trustee to Holders..................................................................53
SECTION 8.07. Compensation and Indemnity.....................................................................53
SECTION 8.08. Replacement of Trustee.........................................................................54
SECTION 8.09. Successor Trustee by Merger, etc...............................................................55
SECTION 8.10. Eligibility; Disqualification..................................................................55
SECTION 8.11. Preferential Collection of Claims Against the Company..........................................56
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Termination of the Company's Obligations.......................................................56
SECTION 9.02. Legal Defeasance and Covenant Defeasance.......................................................56
SECTION 9.03. Conditions to Legal Defeasance or Covenant Defeasance..........................................57
SECTION 9.04. Application of Trust Money; Trustee Acknowledgment and Indemnity...............................58
SECTION 9.05. Repayment to Company...........................................................................59
SECTION 9.06. Reinstatement..................................................................................59
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders....................................................................59
SECTION 10.02. With Consent of Holders.......................................................................60
SECTION 10.03. Compliance with Trust Indenture Act...........................................................61
SECTION 10.04. Record Date for Consents and Effect of Consents...............................................61
SECTION 10.05. Notation on or Exchange of Securities.........................................................62
SECTION 10.06. Trustee To Sign Amendments, etc...............................................................62
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.......................................................................62
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SECTION 11.02. Severability..................................................................................63
SECTION 11.03. Release of a Guarantor........................................................................63
SECTION 11.04. Limitation of Guarantor's Liability...........................................................63
SECTION 11.05. Contribution..................................................................................64
SECTION 11.06. Execution of Subsidiary Guarantee.............................................................64
SECTION 11.07. Subordination of Subrogation and Other Rights.................................................64
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Agreement To Subordinate......................................................................64
SECTION 12.02. Liquidation, Dissolution, Bankruptcy..........................................................65
SECTION 12.03. Default on Guarantor Senior Indebtedness......................................................65
SECTION 12.04. Acceleration of Payment of Securities.........................................................66
SECTION 12.05. When Distribution Must Be Paid Over...........................................................66
SECTION 12.06. Subrogation...................................................................................66
SECTION 12.07. Relative Rights...............................................................................67
SECTION 12.08. Subordination May Not Be Impaired by Guarantor................................................67
SECTION 12.09. Rights of Trustee and Paying Agent............................................................67
SECTION 12.10. Distribution or Notice to Representative......................................................67
SECTION 12.11. Article Twelve Not To Prevent Events of Default or Limit Right To Accelerate..................67
SECTION 12.12. Trust Moneys Not Subordinated.................................................................68
SECTION 12.13. Trustee Entitled To Rely......................................................................68
SECTION 12.14. Trustee To Effectuate Subordination...........................................................68
SECTION 12.15. Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness............................68
SECTION 12.16. Reliance by Holders of Guarantor Senior Indebtedness on Subordination Provisions..............69
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls..................................................................69
SECTION 13.02. Notices.......................................................................................69
SECTION 13.03. Communications by Holders with Other Holders..................................................70
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............................................70
SECTION 13.05. Statements Required in Certificate............................................................71
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.....................................................71
SECTION 13.07. Governing Law.................................................................................71
SECTION 13.08. No Recourse Against Others....................................................................71
SECTION 13.09. Successors....................................................................................71
SECTION 13.10. Counterpart Originals.........................................................................72
SECTION 13.11. Severability..................................................................................72
SECTION 13.12. No Adverse Interpretation of Other Agreements.................................................72
SECTION 13.13. Legal Holidays................................................................................72
SIGNATURES..................................................................................................S-1
EXHIBIT A Form of Series A Security.................................................................A-1
EXHIBIT B Form of Series B Security.................................................................B-1
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EXHIBIT C Form of Legend for Global Securities......................................................C-1
EXHIBIT D Form of Transfer Certificate..............................................................D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors.......................E-1
EXHIBIT F Form of Transfer Certificate for Regulation S Transfers...................................F-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part of this Indenture.
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INDENTURE dated as of March 3, 1998, among LIN ACQUISITION
COMPANY, a Delaware corporation (the "Company"), the Guarantors named herein,
and UNITED STATES TRUST COMPANY OF NEW YORK, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Acquired Preferred Stock" means the Preferred Stock of any Person
at such time as such Person becomes a Restricted Subsidiary of the Company or at
the time it merges or consolidates with the Company or any of its Restricted
Subsidiaries and not issued by such Person in connection with, or in
anticipation or contemplation of, such acquisition, merger or consolidation.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Chase and its
Affiliates shall not be deemed Affiliates of the Company by reason of the Senior
Credit Facilities or their direct or indirect investments in any fund managed by
Xxxxx Muse or any Person in which any such fund is invested.
"Affiliate Transaction" has the meaning provided in Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Premium" has the meaning provided in paragraph 5 on
the reverse of each Security.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or shall be
consolidated or merged with the Company or any Restricted Subsidiary of the
Company or (ii) the acquisition by the Company or any Restricted Subsidiary of
the Company of assets of any Person comprising a division or line of business of
such Person.
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"Xxxxx Xxxx" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (excluding any sale and leaseback
transaction or any pledge of assets or stock by the Company or any of its
Restricted Subsidiaries) to any Person other than the Company or a Restricted
Subsidiary of the Company of (i) any Capital Stock of any Restricted Subsidiary
of the Company or (ii) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that for purposes of Section 4.08, Asset Sales
shall not include (a) a transaction or series of related transactions in which
the Company or any of its Restricted Subsidiaries receives aggregate
consideration of less than $1,000,000, (b) transactions permitted under Section
4.09, (c) transactions covered by Section 5.01, (d) a Restricted Payment that
otherwise qualifies under Section 4.10, (e) any disposition of obsolete or worn
out equipment or equipment that is no longer useful in the conduct of the
business of the Company and its Subsidiaries and that is disposed of, in each
case, in the ordinary course of business and (f) any transaction that
constitutes a Change of Control. Solely for purposes of Section 11.03 an Asset
Sale is deemed to include a sale, conveyance or transfer by the Representative
following a foreclosure on such assets.
"Asset Swap" means the execution of a definitive agreement,
subject only to FCC approval, if applicable, 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 Restricted Subsidiaries and another Person or
group of affiliated Persons; provided that any amendment to or waiver of any
closing condition that individually or in the aggregate is material to the Asset
Swap shall be deemed to be a new Asset Swap; it being understood that an Asset
Swap may include a cash equalization payment made in connection therewith
provided that such cash payment, if received by the Company or its Subsidiaries,
shall be deemed to be proceeds received from an Asset Sale and shall be applied
in accordance with Section 4.08.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar
federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors or other
governing body charged with the ultimate management of any Person, or any duly
authorized committee thereof.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person or a duly authorized
committee of such Board of Directors.
"Business Day" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York, New York.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and (ii) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP, and for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
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"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $200,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds that invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group") (whether or not otherwise in
compliance with the provisions of this Indenture), other than to Xxxxx Muse or
any of its Affiliates, officers or directors (the "Permitted Holders"); or (ii)
a majority of the board of directors of the Company or Holdings shall consist of
Persons who are not Continuing Directors; or (iii) the acquisition by any Person
or Group (other than the Permitted Holders or any direct or indirect subsidiary
of any Permitted Holder, including without limitation Holdings) of the power,
directly or indirectly, to vote or direct the voting of securities having more
than 50% of the ordinary voting power for the election of directors of the
Company.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Change of Control Redemption" has the meaning specified in
paragraph 5 of the Securities.
"Chase" means Chase Securities Inc. or any successor corporation
thereto.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, a Vice
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President or its Treasurer, and by its Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Cash Flow" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income, (ii)
to the extent Consolidated Net Income has been reduced thereby, (a) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary or nonrecurring gains or losses), (b) Consolidated Interest
Expense and (c) Consolidated Non-Cash Charges, all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in conformity
with GAAP, and (iii) the lesser of (x) dividends or distributions paid in cash
to such Person or its Restricted Subsidiaries by any other Person whose results
are reflected as a minority interest in the consolidated financial statements of
such first Person and (y) such Person's equity interest in the Consolidated Cash
Flow of such other Person (but in no event less than zero), except, that in the
case of the Joint Venture, (I) such amount shall not exceed 10% of the
Consolidated Cash Flow of the Company for such period and (II) such first Person
shall be deemed to have received by dividend its proportionate share of
distributable cash retained by the Joint Venture to fund the interest reserve.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Swap
Agreements (including any amortization of discounts), (c) the interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid or accrued by such
Person and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided, however, that there shall be excluded therefrom, without duplication,
(a) gains and losses from Asset Sales (without regard to the $1,000,000
limitation set forth in the definition thereof) or abandonments or reserves
relating thereto and the related tax effects, (b) items classified as
extraordinary or nonrecurring gains and losses, and the related tax effects
according to GAAP, (c) the net income (or loss) of any Person acquired in a
pooling of interests transaction accrued prior to the date it becomes a
Restricted Subsidiary of such first referred to Person or is merged or
consolidated with it or any of its Restricted Subsidiaries, (d) the net income
of any Restricted Subsidiary to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by contract, operation of law or otherwise, and (e) the net income or loss of
any Person, other than a Restricted Subsidiary; and provided, further, however,
that (i) there shall be added to net income an amount equal to the consolidated
cash flow losses attributable to stations which the Company or any of its
Restricted Subsidiaries operates pursuant to local marketing agreements provided
that such addback shall not exceed $3,000,000 in any Four Quarter Period and
(ii) in determining net income, pro forma effect shall be given to the
reimbursement of promotional expenses as if such reimbursement obligation were
in effect for the entire period with respect to periods ending prior to March
31, 1999 (but only if such reimbursement obligation is then in effect).
"Consolidated Non-Cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries (excluding any such
charges constituting an extraordinary or nonrecurring item) reducing
Consolidated Net
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Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company or Holdings
on the Issue Date, (ii) was nominated for election or elected to the Board of
Directors of the Company or Holdings, as the case may be, with the affirmative
vote of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election or (iii) is a
representative of a Permitted Holder.
"Corporate Trust Office of the Trustee" means the principal office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Indenture is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department.
"Credit Agreement" means the credit agreement dated as of March 3,
1998, among Holdings, the Company, The Chase Manhattan Bank, as administrative
agent and collateral agent, The Bank of New York, as syndication agent, National
Westminster Bank PLC, as documentation agent, Chase Securities Inc., as
exclusive arranger and advisor, and the other financial institutions from time
to time party thereto, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders (or other
institutions).
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Indebtedness" means (i) all obligations under
the Senior Credit Facilities and (ii) any other Senior Indebtedness of the
Company which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $20,000,000 and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
13
-6-
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, or transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Capital Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the Final Maturity Date of the Securities; provided that only the portion of
Capital Stock which so matures or is mandatorily redeemable or is so redeemable
at the sole option of the holder thereof prior to March 1, 2008 shall be deemed
Disqualified Capital Stock.
"Equity Contributions" means the $555.0 million common equity to
be provided by affiliates of Xxxxx Muse, management and other co-investors to
the equity of the corporate parents of Holdings, which will in turn, through
Holdings, contribute such amount to the common equity of the Company.
"Equity Offering" means a private sale or public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company or a
Holding Company (to the extent, in the case of a Holding Company, that the net
cash proceeds thereof are contributed to the common or non-redeemable preferred
equity capital of the Company).
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Securities" means the 8 3/8% Senior Subordinated Notes
due 2008, Series B, to be issued in exchange for the Initial Securities pursuant
to the Registration Rights Agreement.
"Final Maturity Date" means March 1, 2008.
"Financial Advisory Agreement" means the Financial Advisory
Agreement by and among the Company, Holdings, certain of their affiliates and
Xxxxx Muse Partners, as in effect on the Issue Date.
"Funding Guarantor" has the meaning provided in Section 11.05.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture,
including those 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 the
Commission or in such other statements by such other entity as approved by a
significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP.
"GECC Note" means the debt financing for the Joint Venture
provided by General Electric Capital Corporation in the form of an $815.5
million 25-year non-amortizing senior secured note initially bearing an interest
rate of 8% per annum, the obligations in respect of which will be assumed by the
Joint Venture.
14
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"Global Securities" means one or more 144A Global Securities,
Regulation S Global Securities or IAI Global Securities.
"Grand Rapids Acquisition" means the acquisition from AT&T
Corporation of the assets of television station WOOD-TV and the local marketing
agreement rights related to television station WOTV-TV.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Guarantor" means each of the Company's direct and indirect,
existing and future Restricted Subsidiaries, other than a Subsidiary organized
under the laws of a jurisdiction other than the United States or any state
thereof, provided that such Subsidiary's assets and principal place of business
are located outside the United States.
"Guarantor Senior Indebtedness" means, as to any Guarantor, Senior
Indebtedness of such Guarantor, it being understood that for the purpose of this
definition, all references to the Company in the definition of Senior
Subordinated Indebtedness shall be deemed references to such Guarantor.
"Guarantor Senior Subordinated Indebtedness" means, as to any
Guarantor, Senior Subordinated Indebtedness of such Guarantor, it being
understood that for purposes of this definition, all references to the Company
in the definition of Senior Subordinated Indebtedness shall be deemed references
to such Guarantor.
"Xxxxx Muse" means Hicks, Muse, Xxxx & Xxxxx Incorporated, a
Delaware corporation.
"Xxxxx Muse Partners" means Xxxxx, Muse & Co. Partners, L.P., an
affiliate of Xxxxx Muse.
"Holders" means the registered holders of the Securities.
"Holdings" means LIN Holdings Corp., a Delaware corporation, and
any successor in interest thereto.
"IAI Global Security" means a permanent global security in
registered form representing the aggregate principal amount of Securities
transferred after the Issue Date to Institutional Accredited Investors.
"Incremental Term Facility" means the $225 million of incremental
term loans under the Senior Credit Agreement that is available to the Company to
finance acquisitions or pay interest or make any mandatory redemptions or
principal payments in respect of the Senior Discount Notes.
"incur" has the meaning set forth in Section 4.04.
"Indebtedness" means with respect to any Person, without
duplication, any liability of such Person (i) for borrowed money, (ii) evidenced
by bonds, debentures, notes or other similar instruments, (iii) constituting
Capitalized Lease Obligations, (iv) incurred or assumed as the deferred purchase
price of property, or pursuant to conditional sale obligations and title
retention agreements (but excluding trade accounts payable arising in the
ordinary course of business), (v) for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction, (vi) for
Indebtedness of others guaranteed by such Person,
15
-8-
(vii) for Interest Swap Agreements, Commodity Agreements and Currency Agreements
and (viii) for Indebtedness of any other Person of the type referred to in
clauses (i) through (vii) which is secured by any Lien on any property or asset
of such first referred to Person, the amount of such Indebtedness being deemed
to be the lesser of the value of such property or asset or the amount of the
Indebtedness so secured. The amount of Indebtedness of any Person at any date
shall be (i) the outstanding principal amount of all unconditional obligations
described above, as such amount would be reflected on a balance sheet prepared
in accordance with GAAP, and the maximum liability at such date of such Person
for any contingent obligations described above, (ii) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (iii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means Chase Securities Inc., Bear, Xxxxxxx &
Co. Inc., Xxxxxx Xxxxxxx & Co. Incorporated, NatWest Capital Markets Limited and
BNY Capital Markets, Inc.
"Initial Securities" means the 8 3/8% Senior Subordinated Notes
due 2008, Series A, of the Company.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"interest" means, with respect to the Securities, the sum of any
cash interest and any Liquidated Damages (as defined in the Registration Rights
Agreement) on the Securities.
"Interest Payment Date" means March 1 and September 1 of each
year, commencing on September 1, 1998.
"Interest Record Date" for the interest payable on any Interest
Payment Date (except a date for payment of defaulted interest) means the
February 15 or August 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"Interest Swap Agreements" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge or arrangement.
"Investment" in any Person means any direct or indirect advance,
loan or other extension of credit (in each case, including by way of Guarantee
or similar arrangement, but excluding (i) any debt or extension of credit
represented by a bank deposit other than a time deposit and (ii) advances to
customers in the ordinary course of business) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. For purposes of Section 4.10, (A) "Investment" shall include the
portion (proportionate to the Company's equity interest in a Restricted
Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market
value of the net assets of such Restricted Subsidiary of the Company at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Unrestricted Subsidiary as
a Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" (if positive) equal to (1) the Company's "Investment" in
such Unrestricted Subsidiary at the time of such redesignation less (2) the
portion (proportionate to the Company's equity interest in such Unrestricted
Subsidiary) of the fair market value of
16
-9-
the net assets of such Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is so redesignated from an Unrestricted Subsidiary to a
Restricted Subsidiary; and (B) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the board of
directors of the Company.
"Issue Date" means the date on which the Initial Securities are
originally issued.
"Joint Venture" means the television station joint venture to be
formed in connection with and prior to the Merger pursuant to an agreement dated
January 15, 1998, as amended, by and between Holdings, the National Broadcast
Company Inc. ("NBC"), LIN Television and certain affiliates of Holdings, NBC and
LIN Television party thereto, pursuant to which both LIN Television and NBC will
contribute television stations to the Joint Venture in exchange for equity
interests therein.
"Leverage Ratio" means, as to any Person, the ratio of (i) the
aggregate outstanding amount of Indebtedness of such Person and its Restricted
Subsidiaries as of the date of calculation on a consolidated basis in accordance
with GAAP plus the aggregate liquidation preference of all Disqualified Capital
Stock of such Person and of all outstanding Preferred Stock of Restricted
Subsidiaries of such Person (other than any such Disqualified Capital Stock or
Preferred Stock held by such Person or any of its Restricted Subsidiaries) to
(ii) the Consolidated Cash Flow of such Person for the four full fiscal quarters
(the "Four Quarter Period") ending on or prior to the date of determination.
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Person and its Restricted Subsidiaries
for which such calculation is made shall be determined on a pro forma basis as
if the Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied, and all other transactions
in respect of which such Indebtedness is being incurred has occurred, on the
last day of the Four Quarter Period. In addition to the foregoing, for purposes
of this definition, "Consolidated Cash Flow" shall be calculated on a pro forma
basis after giving effect to (i) the Transactions, (ii) the incurrence of the
Indebtedness of such Person and its Restricted Subsidiaries (and the application
of the proceeds therefrom) giving rise to the need to make such calculation and
any incurrence (and the application of the proceeds therefrom) or repayment of
other Indebtedness, other than the incurrence or repayment of Indebtedness
pursuant to working capital facilities, at any time subsequent to the beginning
of the Four Quarter Period and on or prior to the date of determination, as if
such incurrence (and the application of the proceeds thereof), or the repayment,
as the case may be, occurred on the first day of the Four Quarter Period, (iii)
any Asset Sales (including those excluded from the definition thereof by clause
(b), (c) or (d) of the definition thereof) or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person that becomes a Restricted Subsidiary as a result of such Asset
Acquisition) incurring, assuming or otherwise becoming liable for Indebtedness)
or Asset Swaps at any time on or subsequent to the first day of the Four Quarter
Period and on or prior to the date of determination, as if such Asset Sale,
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness and also including any Consolidated Cash Flow associated with
such Asset Acquisition) or Asset Swap occurred on the first day of the Four
Quarter Period and (iv) cost savings resulting from employee termination,
facilities consolidations and closings, standardization of employee benefits and
compensation practices, consolidation of property, casualty and other insurance
coverage and policies, standardization of sales representation commissions and
other contract rates, and reductions in taxes other than income taxes
(collectively, "Cost Savings Measures"), which cost savings the Company
reasonably believes in good faith could have been achieved during the Four
Quarter Period as a result of such Asset Acquisition or Asset Swap (regardless
of whether such cost savings could then be reflected in pro forma financial
statements under GAAP, Regulation S-X promulgated by the Commission or any other
regulation or
17
-10-
policy of the Commission), less the amount of any additional expenses that the
Company reasonably estimates would result from anticipated replacement of any
items constituting Cost Savings Measures in connection with such Asset
Acquisition or Asset Swap; provided, however, that both (A) such cost savings
and Cost Savings Measures were identified and such cost savings were quantified
in an officer's certificate delivered to the Trustee at the time of the
consummation of the Asset Acquisition or Asset Swap and (B) with respect to each
Asset Acquisition or Asset Swap completed prior to the 90th day preceding such
date of determination, actions were commenced or initiated by the Company within
90 days of such Asset Acquisition or Asset Swap to effect the Cost Savings
Measures identified in such officer's certificate (regardless, however, of
whether the corresponding cost savings have been achieved). Furthermore, in
calculating "Consolidated Interest Expense" for purposes of the calculation of
"Consolidated Cash Flow," (i) interest on Indebtedness determined on a
fluctuating basis as of the date of determination (including Indebtedness
actually incurred on the date of the transaction giving rise to the need to
calculate the Leverage Ratio) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness as in effect on the date of
determination and (ii) notwithstanding (i) above, interest determined on a
fluctuating basis, to the extent such interest is covered by Interest Swap
Agreements, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Lien" means, with respect to any asset, any lien, mortgage, deed
of trust, pledge, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature thereof and any agreement to give any security interest).
"LIN Television" means LIN Television Corporation, a Delaware
corporation, or any successor in interest thereto.
"LMA" means a station operated by the Company pursuant to a local
marketing agreement and with respect to which the Company has a purchase option
exercisable under certain circumstances.
"Merger" means the merger of the Company with and into LIN
Television pursuant to an Agreement and Plan of Merger dated August 12, 1997, as
amended, among the Company, Holdings and LIN Television.
"Monitoring and Oversight Agreement" means the Monitoring and
Oversight Agreement by and among the Company, Holdings, certain of their
affiliates and Xxxxx Muse Partners, as in effect on the Issue Date.
"NBC" means the National Broadcasting Company, Inc.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, relocation costs, title
insurance premiums, appraisers fees and costs reasonably incurred in preparation
of any asset or property for sale), (ii) taxes paid or reasonably estimated to
be payable (calculated based on the combined state, federal and foreign
statutory tax rates applicable to the Company or the Restricted Subsidiary
engaged in such Asset Sale), (iii) all distributions and other payments required
to be made to any Person owning a beneficial interest in the assets subject to
sale or minority interest holders in Subsidiaries or joint ventures as a result
of such Asset Sale and (iv) any reserves established in accordance with GAAP for
adjustment in respect of the sales price of the asset or assets subject to such
Asset Sale or for any liabilities associated with such Asset Sale and (v)
repayment of
18
-11-
Indebtedness secured by assets subject to such Asset Sale; provided, however,
that if the instrument or agreement governing such Asset Sale requires the
transferor to maintain a portion of the purchase price in escrow (whether as a
reserve for adjustment of the purchase price or otherwise) or to indemnify the
transferee for specified liabilities in a maximum specified amount, the portion
of the cash or Cash Equivalents that is actually placed in escrow or segregated
and set aside by the transferor for such indemnification obligation shall not be
deemed to be Net Cash Proceeds until the escrow terminates or the transferor
ceases to segregate and set aside such funds, in whole or in part, and then only
to the extent of the proceeds released from escrow to the transferor or that are
no longer segregated and set aside by the transferor.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing, or otherwise relating to,
any Indebtedness.
"Offerings" means the initial offerings of the Securities and the
Senior Discount Notes.
"Offering Memorandum" means the final offering memorandum dated
February 18, 1998 setting forth information concerning the Company, Holdings,
the Securities and the Senior Discount Notes.
"Officer" means the Chairman, any Vice Chairman, the President,
any Vice President, the Chief Financial Officer, the Treasurer or the Secretary
of the Company or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means a certificate signed by two Officers
or by an Officer and an Assistant Treasurer or Assistant Secretary of the
Company complying with Sections 13.04 and 13.05.
"144A Global Security" means a permanent global security in
registered form representing the aggregate principal amount of Initial
Securities sold in reliance on Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Holders" has the meaning provided in the definition of
"Change of Control."
"Permitted Indebtedness" means, without duplication, (i)
Indebtedness outstanding on the Issue Date (including the Senior Discount
Notes); (ii) Indebtedness of the Company and any of its Restricted Subsidiaries
that is a Guarantor (a) outstanding under the Senior Credit Facilities
(including letter of credit obligations); provided that the aggregate principal
amount at any time outstanding does not exceed $570,000,000; provided that of
such amount (x) $125,000,000 may be used under the Delayed Tranche A Facility
(as defined in the Credit Agreement) only to finance the Grand Rapids
Acquisition (and refinancings of such borrowings) and (y) $225,000,000 may be
used under the Incremental Term Facility only to finance acquisitions of
Productive Assets or to make distributions to a Holding Company to enable a
Holding Company to make interest payments or mandatory redemptions or principal
payments in respect of the Senior Discount Notes (and refinancings of such
borrowings) or (b) incurred under the Senior Credit Facilities pursuant to and
in compliance with (x) clause (v) of this definition or (y) the proviso in
Section 4.04; (iii) Indebtedness evi-
19
-12-
denced by or arising under the Securities and this Indenture; (iv) Interest Swap
Agreements, Commodity Agreements and Currency Agreements; provided, however,
that such agreements are entered into for bona fide hedging purposes and not for
speculative purposes; (v) additional Indebtedness of the Company or any of its
Restricted Subsidiaries that is a Guarantor not to exceed $20,000,000 in
principal amount outstanding at any time (which amount may, but need not, be
incurred under the Senior Credit Facilities); (vi) Refinancing Indebtedness;
(vii) Indebtedness owed by the Company to any Restricted Subsidiary of the
Company or by any Restricted Subsidiary of the Company to the Company or any
Restricted Subsidiary of the Company; (viii) guarantees by the Company or
Restricted Subsidiaries of any Indebtedness permitted to be incurred pursuant to
this Indenture; (ix) Indebtedness in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company or any of its
Restricted Subsidiaries to their customers in the ordinary course of their
business; (x) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant to
such agreements, in each case incurred in connection with the disposition of any
business assets or Restricted Subsidiaries of the Company (other than guarantees
of Indebtedness or other obligations incurred by any Person acquiring all or any
portion of such business assets or Restricted Subsidiaries of the Company for
the purpose of financing such acquisition) in a principal amount not to exceed
the gross proceeds actually received by the Company or any of its Restricted
Subsidiaries in connection with such disposition; provided, however, that the
principal amount of any Indebtedness incurred pursuant to this clause (x), when
taken together with all Indebtedness incurred pursuant to this clause (x) and
then outstanding, shall not exceed $20,000,000; and (xi) Indebtedness
represented by Capitalized Lease Obligations, mortgage financings or purchase
money obligations, in each case incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement of property or
assets used in a related business or incurred to refinance any such purchase
price or cost of construction or improvement, in each case incurred no later
than 365 days after the date of such acquisition or the date of completion of
such construction or improvement; provided, however, that the principal amount
of any Indebtedness incurred pursuant to this clause (xi) shall not exceed
$7,500,000 at any time outstanding.
"Permitted Investments" means (i) Investments by the Company or
any Restricted Subsidiary of the Company to acquire the stock or assets of any
Person (or Acquired Indebtedness or Acquired Preferred Stock acquired in
connection with a transaction in which such Person becomes a Restricted
Subsidiary of the Company) engaged in the broadcast business or businesses
reasonably related thereto; provided, however, that if any such Investment or
series of related Investments involves an Investment by the Company in excess of
$10,000,000, the Company is able, at the time of such Investment and immediately
after giving effect thereto, to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.04, (ii)
Investments received by the Company or its Restricted Subsidiaries as
consideration for a sale of assets made in compliance with the other terms of
this Indenture, (iii) Investments by the Company or any Restricted Subsidiary of
the Company in any Restricted Subsidiary of the Company (whether existing on the
Issue Date or created thereafter) or any Person that after such Investments, and
as a result thereof, becomes a Restricted Subsidiary of the Company and
Investments in the Company or any Restricted Subsidiary by any Restricted
Subsidiary of the Company, (iv) Investments in cash and Cash Equivalents, (v)
Investments in securities of trade creditors, wholesalers or customers received
pursuant to any plan of reorganization or similar arrangement, (vi) loans or
advances to employees of the Company or any Restricted Subsidiary thereof for
purposes of purchasing the Company's or a Holding Company's Capital Stock and
other loans and advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted Subsidiary,
(vii) Investments in the Sports Joint Venture made at the time of the initial
formation of the Sports Joint Venture and (viii) additional Investments in an
aggregate amount not to exceed $5,000,000 at any time outstanding.
20
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"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Securities" means one or more certificated Securities in
registered form.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"Private Exchange Securities" has the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Initial Securities in the form set forth on Exhibit A hereto.
"Productive Assets" means assets of a kind used or usable by the
Company and its Restricted Subsidiaries in the broadcast business or businesses
reasonably related, ancillary or complementary thereto (including any
sports-related business acquired pursuant to the Sports Joint Venture), and
specifically includes assets acquired through Asset Acquisitions (it being
understood that "assets" may include Capital Stock of a Person that owns such
Productive Assets, provided that either (x) such assets consist of ownership
interests in the Sports Joint Venture or (y) after giving effect to such
transaction, such Person would be a Restricted Subsidiary of the Company).
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company or a
Holding Company (to the extent, in the case of a Holding Company, that the net
cash proceeds thereof are contributed to the common or non-redeemable preferred
equity capital of the Company), pursuant to an effective registration statement
filed with the Commission in accordance with the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed hereto as Exhibit A.
"Refinancing Indebtedness" means any refinancing by the Company of
Indebtedness of the Company or any of its Restricted Subsidiaries incurred in
accordance with Section 4.04 (other than pursuant to clause (iii) or (iv) of the
definition of "Permitted Indebtedness") that does not (i) result in an increase
in the aggregate principal amount of Indebtedness (such principal amount to
include, for purposes of this definition, any premiums, penalties or accrued
interest paid with the proceeds of the Refinancing Indebtedness) of such Person
or (ii) create Indebtedness with (A) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being refinanced.
21
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"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated as of the Issue Date by and among the
Company, the Guarantors and the Initial Purchasers.
"Registration" means a registered exchange offer for the
Securities by the Company or other registration of the Securities under the
Securities Act pursuant to and in accordance with the terms of the Registration
Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" means a permanent global security
in registered form representing the aggregate principal amount of Securities
sold in reliance on Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Senior Indebtedness; provided,
however, that if, and for so long as, any issue of Senior Indebtedness lacks
such a representative, then the holders of a majority in outstanding principal
amount of such issue of Senior Indebtedness shall at all times constitute the
Representative for such issue of Senior Indebtedness.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock or in options, rights or
warrants to acquire Qualified Capital Stock) on shares of the Company's Capital
Stock, (ii) the purchase, redemption, retirement or other acquisition for value
of any Capital Stock of the Company, or any warrants, rights or options to
acquire shares of Capital Stock of the Company, other than through the exchange
of such Capital Stock or any warrants, rights or options to acquire shares of
any class of such Capital Stock for Qualified Capital Stock or warrants, rights
or options to acquire Qualified Capital Stock or (iii) the making of any
Investment (other than a Permitted Investment).
"Restricted Security" means a Security that is a "restricted
security" within the meaning set forth in Rule 144(a)(3) under the Securities
Act; provided, however, that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Restricted Subsidiary" means a Subsidiary of the Company other
than an Unrestricted Subsidiary and includes all of the Subsidiaries of the
Company existing as of the Issue Date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional indebtedness (other than Permitted Indebtedness) pursuant to Section
4.04.
"Rule 144A" means Rule 144A under the Securities Act.
"Secured Indebtedness" means any Indebtedness of the Company or a
Restricted Subsidiary secured by a Lien.
"SEC" or "Commission" means the Securities and Exchange
Commission.
22
-15-
"Securities" means, collectively, the Initial Securities, the
Private Exchange Securities and the Unrestricted Securities treated as a single
class of securities, as amended or supplemented from time to time in accordance
with the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facilities" means the credit facilities under the
Credit Agreement.
"Senior Discount Notes" means the 10% Senior Discount Notes due
2008 of Holdings issued under the Senior Discount Notes Indenture.
"Senior Discount Notes Indenture" means the indenture, as amended
or supplemented from time to time, dated March 3, 0000 xxxxxxx Xxxxxxxx xxx
Xxxxxx Xxxxxx Trust Company of New York, as trustee.
"Senior Indebtedness" means, whether outstanding on the Issue Date
or thereafter issued, all Indebtedness of the Company, including interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceeding) and premium, if any, thereon, and other monetary amounts (including
fees, expenses, reimbursement obligations under letters of credit and
indemnities) owing in respect thereof unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that the obligations in respect of such Indebtedness rank pari passu with the
Securities; provided, however, that Senior Indebtedness will not include (1) any
obligation of the Company to any Restricted Subsidiary, (2) any liability for
federal, state, foreign, local or other taxes owed or owing by the Company, (3)
any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (4) any Indebtedness, Guarantee or obligation of
the Company that is expressly subordinate or junior in right of payment to any
other Indebtedness, Guarantee or obligation of the Company, including any Senior
Subordinated Indebtedness, or (5) obligations in respect of any Capital Stock.
"Senior Subordinated Indebtedness" means the Securities and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities in right of payment and
is not subordinated by its terms in right of payment to any Indebtedness or
other obligation of the Company which is not Senior Indebtedness.
"Significant Restricted Subsidiary" means, at any date of
determination, any Restricted Subsidiary that would be a "significant
subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act, as such rule is in effect on the Issue Date.
"Sports Joint Venture" means any Xxxxx Muse affiliated entity to
which the Company contributes station KXTX-TV and related assets in exchange for
a minority ownership interest therein, cash or a combination thereof.
"Stated Maturity" means with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
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"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly through one or
more intermediaries, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or indirectly through one or more intermediaries, owned by such Person.
Notwithstanding anything in this Indenture to the contrary, all references to
the Company and its consolidated Subsidiaries or to financial information
prepared on a consolidated basis in accordance with GAAP shall be deemed to
include the Company and its Subsidiaries as to which financial statements are
prepared on a combined basis in accordance with GAAP and to financial
information prepared on such a combined basis. Notwithstanding anything in this
Indenture to the contrary, an Unrestricted Subsidiary shall not be deemed to be
a Restricted Subsidiary for purposes of this Indenture.
"Subsidiary Guarantees" means the Form of Subsidiary Guarantee of
each Guarantor to be endorsed on each of the Securities in the form of Exhibit A
(in the case of an Initial Security) or Exhibit B (in the case of an Exchange
Security) hereto.
"Surviving Person" means, with respect to any Person involved in
or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 10.03) until such time as this Indenture is qualified under
the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA.
"Transactions" means the consummation of the Offerings, the
initial borrowings under the Senior Credit Facilities, the Merger, the Joint
Venture, the issuance of the GECC Note and the Equity Contribution.
"Treasury Rate" has the meaning provided in paragraph 5 on the
reverse of each Security.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice president,
assistant vice president, assistant secretary or any other officer or assistant
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 to
whom such trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of this Indenture and thereafter means such successor.
"Unrestricted Securities" means one or more Securities that do not
and are not required to bear the Private Placement Legend in the form set forth
in Exhibit A hereto, including, without limitation, the Exchange Securities and
any Securities registered under the Securities Act pursuant to and in accordance
with the Registration Rights Agreement.
"Unrestricted Subsidiary" means a Subsidiary of the Company
created after the Issue Date and so designated by a resolution adopted by the
Board of Directors of the Company; provided, however, that (a) neither the
Company nor any of its other Restricted Subsidiaries (1) provides any credit
support for any Indebtedness or other Obligations of such Subsidiary (including
any undertaking, agreement or instrument evi-
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dencing such Indebtedness) or (2) is directly or indirectly liable for any
Indebtedness or other Obligations of such Subsidiary and (b) at the time of
designation of such Subsidiary, such Subsidiary has no property or assets (other
than de minimis assets resulting from the initial capitalization of such
Subsidiary). The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation (x) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.04
and (y) no Default or Event of Default shall have occurred or be continuing. Any
designation pursuant to this definition by the Board of Directors of the Company
shall be evidenced to the Trustee by the filing with the Trustee of a certified
copy of the resolution of the Company's Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complies with the foregoing conditions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" means the Company or 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 therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
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(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 generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to 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; and
(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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Initial Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of Exhibit B hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements (including the Subsidiary Guarantee)
required by law, stock exchange rule or usage. The Company and the Trustee shall
approve the form of the Securities and any notation, legend or endorsement
(including the Subsidiary Guarantee) on them. Each Security shall be dated the
date of its issuance and shall show the date of its authentication.
Securities offered and sold in reliance on Rule 144A and
Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in Exhibit A hereto, deposited with the Trustee, as custodian for
the Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Exhibit C hereto.
The aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
Two Officers or an Officer and an Assistant Secretary shall sign,
or one Officer shall sign and one Officer and an Officer and an Assistant
Secretary (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Securities for the Company by
manual or facsimile signature.
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If an Officer whose signature is on a Security or a Subsidiary
Guarantee, as the case may be, was an Officer at the time of such execution but
no longer holds that office at the time the Trustee authenticates the Security
or Subsidiary Guarantee, as the case may be, the Security or Subsidiary
Guarantee, as the case may be, shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Securities for original
issue in an aggregate principal amount not to exceed $300,000,000, (ii) Private
Exchange Securities from time to time only in exchange for a like principal
amount of Initial Securities and (iii) Unrestricted Securities from time to time
only in exchange for (A) a like principal amount of Initial Securities or (B) a
like principal amount of Private Exchange Securities, in each case upon a
written order of the Company in the form of an Officers' Certificate. Each such
written order shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated, whether the Securities are
to be Initial Securities, Private Exchange Securities or Unrestricted Securities
and whether the Securities are to be issued as Physical Securities or Global
Securities and such other information as the Trustee may reasonably request. The
aggregate principal amount of Securities outstanding at any time may not exceed
$300,000,000, except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
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 shall
have the same rights as an Agent to deal with the Company and Affiliates of the
Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency, which may be in
the Borough of Manhattan, The City of New York, where (a) Securities may be
presented or surrendered for registration of transfer or for exchange (the
"Registrar"), (b) Securities may be presented or surrendered for payment (the
"Paying Agent") and (c) notices and demands in respect of the Securities and
this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company, upon notice to the
Trustee, may appoint one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. Except as
provided herein, the Company may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the
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foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 8.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each 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, or interest on, the Securities, and shall notify the Trustee of
any Default by the Company in making any such payment. 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, 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 (if
other than the Company), the Paying Agent shall have no further liability for
such assets. If the Company or any of their Affiliates acts as Paying Agent, it
shall, on or before each due date of the principal of or interest on the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for an
equal principal amount of Securities of other authorized denominations of the
same series, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06, or
10.05). The Registrar or co-Registrar shall not be required to register the
transfer or exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three
hereof, except the unredeemed portion of any Security being redeemed in part.
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Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee and any Agent of the Company shall treat the
person in whose name the Security is registered as the owner thereof for all
purposes whether or not the Security shall be overdue, and none of the Company,
the Trustee nor any such Agent shall be affected by notice to the contrary. Any
consent, waiver or actions of a Holder shall be binding upon any subsequent
Holders of such Security or a Security received upon transfer. Any Holder of a
beneficial interest in a Global Security shall, by acceptance of such beneficial
interest in a Global Security, agree that transfers of beneficial interests in
such Global Security may be effected only through a book-entry system maintained
by the Depository (or its agent), and that ownership of a beneficial interest in
a Global Security shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for replacement of Securities
are met. If required by the Company or the Trustee, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of the Company and
the Trustee, to protect the Company, the Trustee and any Agent from any loss
which any of them may suffer if a Security is replaced. The Company may charge
such Holder for their reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any Affiliates of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee 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
2.07.
If on a Redemption Date or the Final Maturity Date the Paying
Agent holds money sufficient to pay all of the principal and interest due on the
Securities payable on that date, and is not prohibited from paying such money to
the Holders pursuant to the terms of this Indenture, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, the Guarantors or any of their respective
Affiliates shall be disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that a Trust Officer of the Trustee actually knows
are so owned shall be disregarded.
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The Company shall notify the Trustee, in writing, when the Company
or any of its respective Affiliates repurchases or otherwise acquires
Securities, of the aggregate principal amount of such Securities so repurchased
or otherwise acquired.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon receipt
of a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated.
Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written order
of the Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of the Company,
dispose of and deliver evidence of such disposal of all Securities surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that they have paid
or delivered to the Trustee for cancellation. If the Company shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
SECTION 2.12. Defaulted Interest.
The Company shall pay interest on overdue principal from time to
time on demand at the rate of interest then borne by the Securities. The Company
shall, to the extent lawful, pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the rate of interest then borne by the Securities.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day preceding
the date fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to
the expiration of the 30-day period set forth in Section 6.01(a) shall be paid
to Holders as of the Interest Record Date for the Interest Payment Date for
which interest has not been paid.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a "CUSIP" number
and the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Company shall promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Redemption Date, and the Final Maturity Date, the Company shall deposit
with the Paying Agent in immediately available funds money sufficient to make
cash payments, if any, due on such Interest Payment Date, Redemption Date or
Final Maturity Date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such Interest Payment Date,
Redemption Date or Final Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit C.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16; provided,
however, that Physical Securities shall be transferred to all beneficial owners
in exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor Depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
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(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(c) of this Section 2.15 shall, except as otherwise provided by Section 2.16,
bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical
Securities are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal
principal amount of Physical Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the Physical
Securities presented or surrendered for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(II) in the case of Physical Securities the offer and sale of
which have not been registered under the Securities Act, such Physical
Securities shall be accompanied, in the sole discretion of the Company,
by the following additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the
Registrar or co-Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification
from such Holder to that effect (substantially in the form
of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the form of
Exhibit D hereto) and a transferee letter of representation
(substantially in the form of Exhibit E hereto) and, at the
option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(D) if such Physical Security is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a
certification to that effect (substantially in the form of
Exhibit D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
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(E) if such Physical Security is being transferred in reliance
on Regulation S, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a
transferor certificate for Regulation S transfers
(substantially in the form of Exhibit F hereto) and, at the
option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification to that effect
(substantially in the form of Exhibit D hereto) and, at the
option of the Company, an Opinion of Counsel reasonably
acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for a
Beneficial Interest in a Global Security. A Physical Security the offer and sale
of which has not been registered under the Securities Act 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 or co-Registrar of a
Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
(A) certification, substantially in the form of Exhibit D
hereto, that such Physical Security is being transferred
(I) to a QIB, (II) to an Institutional Accredited Investor
or (III) in an offshore transaction in reliance on
Regulation S and, with respect to (II) or (III), at the
option of the Company, an Opinion of Counsel reasonably
acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act; and
(B) written instructions directing the Registrar or
co-Registrar to make, or to direct the Depository to make,
an endorsement on the applicable Global Security to reflect
an increase in the aggregate amount of the Securities
represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount of Securities represented by the applicable
Global Security to be increased accordingly. If no 144A Global Security, IAI
Global Security or Regulation S Global Security, as the case may be, is then
outstanding, the Company shall, unless either of the events in the proviso to
Section 2.15(b) have occurred and are continuing, issue and the Trustee shall,
upon written instructions from the Company in accordance with Section 2.02,
authenticate such a 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 Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor. Upon receipt by the Registrar or Co-Registrar of written instructions,
or such other instruction as is customary for the Depository, from the
Depository or its nominee, requesting the registration of transfer of an
interest in a 144A Global Security, an IAI Global Security or a Regulation S
Global Security, as the case may be, to another type of Global Security,
together with the applicable Global Securities (or, if the applicable type of
Global Security required to represent the interest as requested to be obtained
is not then outstanding, only the Global Security
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representing the interest being transferred), the Registrar or Co-Registrar
shall reflect on its books and records (and the applicable Global Security) the
applicable increase and decrease of the principal amount of Securities
represented by such types of Global Securities, giving effect to such transfer.
If the applicable type of Global Security required to represent the interest as
requested to be obtained is not outstanding at the time of such request, the
Company shall issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate a new Global Security of
such type in principal amount equal to the principal amount of the interest
requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a
Physical Security.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Physical Security; provided, however, that prior to the Registration, a
transferee that is a QIB or Institutional Accredited Investor may not
exchange a beneficial interest in Global Security for a Physical
Security. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other form of instructions as is customary for
the Depository, from the Depository or its nominee on behalf of any
Person having a beneficial interest in a Global Security and upon
receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Securities the offer
and sale of which have not been registered under the Securities Act,
the following additional information and documents:
(A) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of
a certification to that effect (substantially in the form
of Exhibit D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(B) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (substantially in the form of Exhibit D hereto) and,
at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository
and the Registrar or co-Registrar, the aggregate principal amount of
the applicable Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver
to the transferee a Physical Security in the appropriate principal
amount.
(ii) Securities issued in exchange for a beneficial interest
in a Global Security pursuant to this Section 2.16(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar or co-Registrar
in writing. The Registrar or co-Registrar shall deliver such Physical
Securities to the Persons in whose names such Physical Securities are
so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a
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nominee of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless, and the
Trustee is hereby authorized to deliver Securities without the Private Placement
Legend if, (i) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act;(ii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act (including pursuant to a Registration); or (iii) the date of such
transfer, exchange or replacement is two years after the later of (x) the Issue
Date and (y) the last date that the Company or any affiliate (as defined in Rule
144 under the Securities Act) of the Company was the owner of such Securities
(or any predecessor thereto).
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
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 Participants or
beneficial owners of interest 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 hereof.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5
of the Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed. The Company shall give such notice to the Trustee at
least 45 days before the Redemption Date (unless a shorter notice shall be
agreed to by the Trustee in writing), to-
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gether with an Officers' Certificate stating that such redemption will comply
with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 of the Securities, the Trustee shall select the Securities to be
redeemed in compliance with the requirements of the national securities
exchange, if any, on which the Securities are listed or, in the absence of such
requirements or if the Securities are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other manner as may be required
pursuant to this Indenture or otherwise as the Trustee shall deem fair and
appropriate. Selection of the Securities to be redeemed pursuant to paragraph
5(b) of the Securities shall be made by the Trustee only on a pro rata basis or
on as nearly a pro rata basis as is practicable (subject to the procedures of
the Depository) based on the aggregate principal amount of Securities held by
each Holder. The Trustee shall make the selection from the Securities then
outstanding, subject to redemption and not previously called for redemption.
The Trustee may select for redemption pursuant to paragraph 5 of
the Securities portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.03. 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 to each
Holder whose Securities are to be redeemed at such Holder's registered address;
provided, however, that notice of a redemption pursuant to paragraph 5(b) of the
Securities shall be mailed to each Holder whose Securities are to be redeemed no
later than 60 days after the date of the closing of the relevant Equity Offering
of the Company.
Each notice of redemption shall identify the Securities to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that, as long as the Company has deposited with the Paying Agent
funds in satisfaction of the applicable redemption price pursuant to this
Indenture, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
is to receive payment of the redemption price upon surrender to the Paying
Agent;
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(6) in the case of any redemption pursuant to paragraph 5 of the
Securities, if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued;
(7) the subparagraph of the Securities pursuant to which such
redemption is being made; and
(8) that no representation is made as to the accuracy of the CUSIP
number listed in such notice or printed on such Security.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon, if any, to the Redemption Date,
but interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company is its own Paying Agent,
it shall, on or before the Redemption Date, segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest, if any, on all
Securities to be redeemed on that date other than Securities or portions thereof
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
If any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid on the Redemption Date due to the failure
of the Company to deposit with the Paying Agent money sufficient to pay the
redemption price thereof, the principal and accrued and unpaid interest, if any,
thereon shall, until paid or duly provided for, bear interest as provided in
Sections 2.12 and 4.01 with respect to any payment default.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities and the Registration Rights
Agreement. An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company or any
Affiliates of the Company) holds on that date money designated for and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders of the Securities pursuant to the terms of this Indenture.
The Company shall pay cash interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay cash interest
on overdue installments of interest at the same rate per annum borne by the
Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of any office or agency required by
Section 2.03. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee 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. The Company hereby
initially designates the Trustee at its address set forth in Section 13.02 as
its office or agency in The Borough of Manhattan, The City of New York, for such
purposes.
SECTION 4.03. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease,
contribution or exchange of any property or the rendering of any service) with
or for the benefit of any of its Affiliates (other than transactions between the
Company and a Restricted Subsidiary of the Company or among Restricted
Subsidiaries of the Company) (an "Affiliate Transaction"), other than Affiliate
Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction on an arm's-length
basis from a person that is not an Affiliate; provided, however, that for a
transaction or series of related transactions involving value of $5,000,000 or
more, such determination shall be made in good faith by a majority of members of
the Board of Directors of the Company and by a majority of the disinterested
members of the Board of Directors of the Company, if any; provided, further,
that for a transaction or series of related transactions involving value of
$15,000,000 or more, the Board of Directors of the Company has received an
opinion from an independent investment banking firm of nationally recognized
standing that such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Restricted Subsidiary. The foregoing restrictions
shall not apply to (1) reasonable and customary directors' fees, indemnification
and similar arrangements and payments thereunder; (2) any obligations of the
Company under any employment agreement, noncompetition or confidentiality
agreement with any officer of the Company, as in effect on the Issue Date
(provided that each amendment of any of the foregoing agreements shall be
subject to the limitations of this covenant); (3) any Restricted Payment
permitted to be made pursuant Section 4.10; (4) any issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the
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Company; (5) loans or advances to employees in the ordinary course of business
of the Company or any of its Restricted Subsidiaries consistent with past
practices; (6) payments made in connection with the Transactions and the Grand
Rapids Acquisition, including, without limitation, fees to Xxxxx Muse, as
described in the Offering Memorandum; and (7) payments by the Company to Xxxxx
Muse Partners in accordance with the terms of the Financial Advisory Agreement
and the Monitoring and Oversight Agreement.
SECTION 4.04. Limitation on Incurrence of Additional Indebtedness and Issuance
of Capital Stock.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (other than
Permitted Indebtedness) and the Company shall not issue any Disqualified Capital
Stock and its Restricted Subsidiaries shall not issue any Preferred Stock
(except Preferred Stock issued to the Company or a Restricted Subsidiary of the
Company so long as it is so held); provided, however, that the Company and its
Restricted Subsidiaries that are Guarantors may incur Indebtedness or issue
shares of such Capital Stock if, in either case, the Company's Leverage Ratio at
the time of incurrence of such Indebtedness or the issuance of such Capital
Stock, as the case may be, after giving pro forma effect to such incurrence or
issuance as of such date and to the use of proceeds therefrom is less than 7.0
to 1.
(b) The Company shall not incur or suffer to exist, or permit any
of its Restricted Subsidiaries to incur or suffer to exist, any Obligations with
respect to an Unrestricted Subsidiary that would violate the provisions set
forth in the definition of Unrestricted Subsidiary.
SECTION 4.05. Limitation on Layering.
The Company shall not incur any Indebtedness if such Indebtedness
is subordinate or junior in ranking in any respect to any Senior Indebtedness
unless such Indebtedness is Senior Subordinated Indebtedness or is contractually
subordinated in right of payment to all Senior Subordinated Indebtedness
(including the Securities).
SECTION 4.06. Payments for Consents.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or is paid to all Holders of the Securities that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
SECTION 4.07. Limitation on Investment Company Status.
The Company and its Subsidiaries shall not take any action, or
otherwise permit to exist any circumstance, that would require the Company to
register as an "investment company" under the Investment Company Act of 1940, as
amended.
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SECTION 4.08. Limitation on Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by management
of the Company or, if such Asset Sale involves consideration in excess of
$10,000,000, by the board of directors of the Company, as evidenced by a board
resolution), (ii) at least 75% of the consideration received by the Company or
such Restricted Subsidiary, as the case may be, from such Asset Sale is in the
form of cash or Cash Equivalents and is received at the time of such disposition
and (iii) upon the consummation of an Asset Sale, the Company applies, or causes
such Restricted Subsidiary to apply, such Net Cash Proceeds within 180 days of
receipt thereof either (A) to repay any Senior Indebtedness of the Company or
any Indebtedness of a Restricted Subsidiary of the Company (and, to the extent
such Senior Indebtedness relates to principal under a revolving credit or
similar facility, to obtain a corresponding reduction in the commitments
thereunder, except that the Company may temporarily repay Senior Indebtedness
using the Net Cash Proceeds from such Asset Sale and thereafter use such funds
to reinvest pursuant to clause (B) below within the period set forth therein
without having to obtain a corresponding reduction in the commitments
thereunder), (B) to reinvest, or to be contractually committed to reinvest
pursuant to a binding agreement, in Productive Assets and, in the latter case,
to have so reinvested within 360 days of the date of receipt of such Net Cash
Proceeds or (C) to purchase Securities and other Senior Subordinated
Indebtedness, pro rata tendered to the Company for purchase at a price equal to
100% of the principal amount thereof (or the accreted value of such other Senior
Subordinated Indebtedness, if such other Senior Subordinated Indebtedness is
issued at a discount) plus accrued interest thereon, if any, to the date of
purchase pursuant to an offer to purchase made by the Company as set forth below
(a "Net Proceeds Offer"); provided, however, that the Company may defer making a
Net Proceeds Offer until the aggregate Net Cash Proceeds from Asset Sales not
otherwise applied in accordance with this covenant equal or exceed $15,000,000.
Subject to the deferral right set forth in the final proviso of
the preceding paragraph, each notice of a Net Proceeds Offer shall be mailed, by
first-class mail, to Holders not more than 180 days after the relevant Asset
Sale or, in the event the Company or a Restricted Subsidiary has entered into a
binding agreement as provided in (B) above, within 180 days following the
termination of such agreement but in no event later than 360 days after the
relevant Asset Sale. Such notice shall specify, among other things, the purchase
date (which shall be no earlier than 30 days nor later than 45 days from the
date such notice is mailed, except as otherwise required by law) and shall
otherwise comply with the procedures set forth in this Indenture. Upon receiving
notice of the Net Proceeds Offer, Holders may elect to tender their Securities
in whole or in part in integral multiples of $1,000. To the extent Holders
properly tender Securities in an amount which, together with all other Senior
Subordinated Indebtedness so tendered, exceeds the Net Proceeds Offer,
Securities and other Senior Subordinated Indebtedness of tendering Holders shall
be repurchased on a pro rata basis (based upon the aggregate principal amount
tendered, or, if applicable, the aggregate accreted value tendered). To the
extent that the aggregate principal amount of Securities tendered pursuant to
any Net Proceeds Offer, which, together with the aggregate principal amount or
aggregate accreted value, as the case may be, of all other Senior Subordinated
Indebtedness so tendered, is less than the amount of Net Cash Proceeds subject
to such Net Proceeds Offer, the Company may use any remaining portion of such
Net Cash Proceeds not required to fund the repurchase of tendered Securities and
other Senior Subordinated Indebtedness for any purposes not otherwise prohibited
by this Indenture. Upon the consummation of any Net Proceeds Offer, the amount
of Net Cash Proceeds subject to any future Net Proceeds Offer from the Asset
Sales giving rise to such Net Cash Proceeds shall be deemed to be zero.
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The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act to the extent applicable in connection with the repurchase of
Securities pursuant to a Net Proceeds Offer.
SECTION 4.09. Limitation on Asset Swaps.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Swap unless: (i) at the time of entering into
such Asset Swap, and immediately after giving effect to such Asset Swap, no
Default or Event of Default shall have occurred and be continuing, (ii) in the
event such Asset Swap involves an aggregate amount in excess of $10,000,000, the
terms of such Asset Swap have been approved by a majority of the members of the
Board of Directors of the Company and (iii) in the event such Asset Swap
involves an aggregate amount in excess of $50,000,000, the Company has received
a written opinion from an independent investment banking firm of nationally
recognized standing that such Asset Swap is fair to the Company or such
Restricted Subsidiary, as the case may be, from a financial point of view.
SECTION 4.10. Limitation on Restricted Payments.
(a) The Company shall not, and shall not cause or permit any of
its Restricted Subsidiaries, to, directly or indirectly, make any Restricted
Payment if at the time of such Restricted Payment and immediately after giving
effect thereto:
(i) a Default or Event of Default shall have occurred and
be continuing; or
(ii) the Company is not able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.04; or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as
determined by the Board of Directors of the Company in good faith)
exceeds the sum of (a)(x) 100% of the aggregate Consolidated Cash Flow
of the Company (or, in the event such Consolidated Cash Flow shall be a
deficit, minus 100% of such deficit) accrued subsequent to the Issue
Date to the most recent date for which financial information is
available to the Company, taken as one accounting period, less (y) 1.4
times Consolidated Interest Expense for the same period, plus (b) 100%
of the aggregate net proceeds, including the fair market value of
property other than cash as determined by the Board of Directors of the
Company in good faith, received subsequent to the Issue Date by the
Company from any Person (other than a Restricted Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company (excluding (i) any net proceeds
from issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Restricted Subsidiary of the Company,
until and to the extent such borrowing is repaid, but including the
proceeds from the issuance and sale of any securities convertible into
or exchangeable for Qualified Capital Stock to the extent such
securities are so converted or exchanged and including any additional
proceeds received by the Company upon such conversion or exchange and
(ii) any net proceeds received from issuances and sales that are used
to consummate a transaction described in clause (2) of paragraph (b)
below), plus (c) without duplication of any amount included in clause
(iii)(b) above, 100% of the aggregate net proceeds, including the fair
market value of property other than cash (valued as provided in clause
(iii)(b) above), received by the Company as a capital contribution
subsequent to the Issue Date, plus (d) the amount equal to the net
reduction in Investments (other than Permitted Investments) made by the
Company or any of its Restricted Subsidiaries in any Person resulting
from, and without duplication, (i) repurchases or redemptions of such
Investments by such Person, proceeds realized upon the sale of such
Investment to an unaffiliated purchaser and repayments of
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loans or advances or other transfers of assets by such Person to the
Company or any Restricted Subsidiary of the Company or (ii) the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries
(valued in each case as provided in the definition of "Investment") not
to exceed, in the case of any Restricted Subsidiary, the amount of
Investments previously made by the Company or any of its Restricted
Subsidiaries in such Unrestricted Subsidiary, which amount was included
in the calculation of Restricted Payments; provided, however, that no
amount shall be included under this clause (d) to the extent it is
already included in Consolidated Cash Flow, plus (e) the aggregate net
cash proceeds received by a Person in consideration for the issuance of
such Person's Capital Stock (other than Disqualified Capital Stock)
that are held by such Person at the time such Person is merged with and
into the Company in accordance with Section 5.01 subsequent to the
Issue Date; provided, however, that concurrently with or immediately
following such merger the Company uses an amount equal to such net cash
proceeds to redeem or repurchase the Company's Capital Stock, plus (f)
$15,000,000.
(b) Notwithstanding the foregoing, these provisions will not
prohibit: (1) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if such dividend or
distribution would have been permitted on the date of declaration; (2) the
purchase, redemption or other acquisition or retirement of any Capital Stock of
the Company or any warrants, options or other rights to acquire shares of any
class of such Capital Stock either (x) solely in exchange for shares of
Qualified Capital Stock or other rights to acquire Qualified Capital Stock or
(y) through the application of the net proceeds of a substantially concurrent
sale for cash (other than to a Restricted Subsidiary of the Company) of shares
of Qualified Capital Stock or warrants, options or other rights to acquire
Qualified Capital Stock or (z) in the case of Disqualified Capital Stock, solely
in exchange for, or through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Restricted Subsidiary of
the Company) of, Disqualified Capital Stock; (3) payments made pursuant to any
merger, consolidation or sale of assets effected in accordance with Section
5.01; provided, however, that no such payment may be made pursuant to this
clause (3) unless, after giving effect to such transaction (and the incurrence
of any Indebtedness in connection therewith and the use of the proceeds
thereof), the Company would be able to incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.04 such that
after incurring that $1.00 of additional Indebtedness, the Leverage Ratio would
be less than 6.0 to 1; (4) payments to enable the Company or a Holding Company
(as hereinafter defined) to pay dividends on its Capital Stock (other than
Disqualified Capital Stock) after the first Public Equity Offering in an annual
amount not to exceed 6.0% of the gross proceeds (before deducting underwriting
discounts and commissions and other fees and expenses of the offering) received
from shares of Capital Stock (other than Disqualified Capital Stock) sold for
the account of the issuer thereof (and not for the account of any stockholder)
in such initial Public Equity Offering; (5) payments by the Company to fund the
payment by any company as to which the Company is, directly or indirectly, a
Subsidiary (a "Holding Company") of audit, accounting, legal or other similar
expenses, to pay franchise or other similar taxes and to pay other corporate
overhead expenses, so long as such dividends are paid as and when needed by its
respective direct or indirect Holding Company and so long as the aggregate
amount of payments pursuant to this clause (5) does not exceed $1,000,000 in any
calendar year; (6) payments by the Company to repurchase, or to enable a Holding
Company to repurchase, Capital Stock or other securities from employees of the
Company or a Holding Company in an aggregate amount not to exceed $15,000,000;
(7) payments by the Company to redeem or repurchase, or to enable a Holding
Company to redeem or repurchase, stock purchase or similar rights granted by the
Company or a Holding Company with respect to its Capital Stock in an aggregate
amount not to exceed $500,000; (8) payments, not to exceed $200,000 in the
aggregate, to enable the Company or a Holding Company to make cash payments to
holders of its Capital Stock in lieu of the issuance of fractional shares of its
Capital Stock; (9) payments by the Company to fund taxes of a Holding Company
for a given taxable year in an amount equal to the Company's "separate return
liability," as if the Company were the parent of a consolidated group (for
purposes of this clause (9) "separate return liability" for a given taxable year
shall mean the hypo-
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thetical United States tax liability of the Company defined as if the Company
had filed its own U.S. federal tax return for such taxable year); (10) the
payment of any dividend or the making of any distribution to a Holding Company
in amounts sufficient to permit a Holding Company (i) to pay interest when due
on the Senior Discount Notes and (ii) to make any mandatory redemption or
principal payments in respect of the Senior Discount Notes; and (11) payments by
the Company to Xxxxx Muse Partners in accordance with the terms of the Financial
Advisory Agreement and the Monitoring and Oversight Agreement; provided,
however, that in the case of clauses (3), (4), (6), (7), (8) and (10), no Event
of Default shall have occurred or be continuing at the time of such payment or
as a result thereof. In determining the aggregate amount of Restricted Payments
made subsequent to the Issue Date, amounts expended pursuant to clauses (1),
(4), (6), (7) and (8) shall be included in such calculation.
SECTION 4.11. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of
its Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of the occurrence and continuation of any
Default or Event of Default, the Company shall promptly deliver an Officers'
Certificate to the Trustee specifying the Default or Event of Default.
SECTION 4.12. Reports.
So long as any of the Securities are outstanding, the Company
shall provide to the Trustee and the Holders and file with the Commission, to
the extent such submissions are accepted for filing by the Commission, copies of
the annual reports and of the information, documents and other reports that the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act, regardless of whether the Company is then
obligated to file such reports.
SECTION 4.13. Limitations on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause to permit to
exist or become effective, by operation of the charter of such Restricted
Subsidiary or by reason of any agreement, instrument, judgment, decree, rule,
order, statute or governmental regulation, any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions on its Capital Stock; (b) make loans or advances or pay any
Indebtedness or other obligation owed to the Company or any of its Restricted
Subsidiaries; or (c) transfer any of its property or assets to the Company,
except for such encumbrances or restrictions existing under or by reason of: (1)
applicable law; (2) this Indenture; (3) customary nonassignment provisions of
any lease governing a leasehold interest of the Company or any Restricted
Subsidiary; (4) any instrument governing Acquired Indebtedness or Acquired
Preferred Stock, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; (5) agreements existing on the
Issue Date (including the Credit Agreement) as such agreements are from time to
time in effect; provided, however, that any amendments or modifications of such
agreements that affect the encumbrances or restrictions of the types subject to
this covenant shall not result in such encumbrances or restrictions being less
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favorable to the Company in any material respect, as determined in good faith by
the Board of Directors of the Company, than the provisions as in effect before
giving effect to the respective amendment or modification; (6) any restriction
with respect to such a Restricted Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all the Capital
Stock or assets of such Restricted Subsidiary pending the closing of such sale
or disposition; (7) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4) or (5) above or any other agreement
evidencing Indebtedness permitted under this Indenture; provided, however, that
the provisions relating to such encumbrance or restriction contained in any such
refinancing, replacement or substitution agreement or any such other agreement
are no less favorable to the Company in any material respect as determined in
good faith by the Board of Directors of the Company than the provisions relating
to such encumbrance or restriction contained in agreements referred to in such
clause (2), (4) or (5); (8) restrictions on the transfer of the assets subject
to any Lien imposed by the holder of such Lien; (9) a licensing agreement to the
extent such restrictions or encumbrances limit the transfer of property subject
to such licensing agreement; (10) restrictions relating to Subsidiary Preferred
Stock that require that due and payable dividends thereon to be paid in full
prior to dividends on such Subsidiary's common stock; or (11) any agreement or
charter provision evidencing Indebtedness or Capital Stock permitted under this
Indenture; provided, however, that the provisions relating to such encumbrance
or restriction contained in such agreement or charter provision are not less
favorable to the Company in any material respect as determined in good faith by
the Board of Directors of the Company than the provisions relating to such
encumbrance or restriction contained in this Indenture.
SECTION 4.14. Subsidiary Guarantees by Restricted Subsidiaries.
(a) The Company shall not create or acquire, nor cause or permit
any of its Restricted Subsidiaries, directly or indirectly, to create or
acquire, any Subsidiary other than (1) an Unrestricted Subsidiary in accordance
with the other terms of this Indenture or (2) a Restricted Subsidiary that,
simultaneously with such creation or acquisition, (x) executes and delivers to
the Trustee a supplemental indenture to this Indenture pursuant to which it will
become a Guarantor in accordance with Article Eleven hereof and (y) delivers to
the Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Restricted Subsidiary and constitutes
a valid, binding and enforceable obligation of such Restricted Subsidiary (which
opinion may be subject to customary assumptions and qualifications).
(b) Any Unrestricted Subsidiary that is redesignated as a
Restricted Subsidiary shall upon such redesignation be required to become a
Guarantor in accordance with the requirements of Section 4.14(a)(2).
SECTION 4.15. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that the Company purchase all or a portion of such
Holder's Securities in cash pursuant to the offer described below (the "Change
of Control Offer"), at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase.
(b) Prior to the mailing of the notice referred to below, but in
any event within 30 days following the date on which the Company becomes aware
that a Change of Control has occurred (the "Change of Control Date"), the
Company covenants that if the purchase of the Securities would violate or
constitute a default under any other Indebtedness of the Company, then the
Company shall, to the extent needed to permit such purchase of Securities,
either (i) repay all such Indebtedness and terminate all commitments outstanding
thereunder or (ii) obtain the requisite consents, if any, under any such
Indebtedness to permit the purchase of the Securities as provided below. The
Company shall first comply with the covenant in the preceding sentence
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before it will be required to make the Change of Control Offer or purchase the
Securities pursuant to the provisions described below.
(c) Within 30 days following the date on which the Company becomes
aware that a Change of Control has occurred, the Company shall send, by first
class mail, postage prepaid, a notice to each Holder, which notice shall govern
the terms of the Change of Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Change of Control Offer. Such notice shall
state:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.15 and that all Securities validly tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no earlier than
30 days nor later than 45 days from the date such notice is mailed,
other than as may be required by law) (the "Change of Control Payment
Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Security 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 and
Registrar for the Securities at the address specified in the notice
prior to the close of business on the Business Day prior to the Change
of Control Payment Date;
(6) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than five Business
Days prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Securities the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Security purchased;
(7) that Holders whose Securities are purchased only in
part shall be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; provided, however,
that each Security purchased and each new Security issued shall be in a
principal amount of $1,000 or integral multiples thereof; and
(8) the circumstances and relevant facts regarding such
Change of Control.
(d) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent in accordance with Section 2.14 cash in U.S.
dollars or United States Government Obligations sufficient to pay the purchase
price plus accrued and unpaid interest, if any, of all Securities so tendered
and (iii) deliver to the Trustee Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof being purchased
by the Company. Upon receipt by the Paying Agent of the monies specified in
clause (ii) above and a copy of the Officers' Certificate specified in clause
(iii)
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above, the Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price plus accrued and
unpaid interest, if any, out of the funds deposited with the Paying Agent in
accordance with the preceding sentence. The Trustee shall promptly authenticate
and mail to such Holders new Securities equal in principal amount to any
unpurchased portion of the Securities surrendered. Upon the payment of the
purchase price for the Securities accepted for purchase, the Trustee shall
return the Securities purchased to the Company for cancellation. Any monies
remaining after the purchase of Securities pursuant to a Change of Control Offer
shall be returned within three Business Days by the Trustee to the Company
except with respect to monies owed as obligations to the Trustee pursuant to
Article Eight. For purposes of this Section 4.15, the Trustee shall, except with
respect to monies owed as obligations to the Trustee pursuant to Article Eight,
act as the Paying Agent.
(e) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of the Securities pursuant to a Change of Control Offer. To the extent
the provisions of any such rule conflict with the provisions of this Indenture
relating to a Change of Control Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
(f) Paragraphs (a)-(e) of this Section 4.15 notwithstanding, the
Company shall not be required to make a Change of Control Offer if, instead, the
Company elects to effect a Change of Control Redemption in compliance with the
requirements listed on the Securities in Exhibit A and Exhibit B hereof.
(g) Paragraphs (a)-(f) notwithstanding, the Company shall not be
required to make a Change of Control Offer or a Change of Control Redemption in
the event of (i) changes in a majority of the board of directors of the Company
so long as a majority of such board of directors continues to consist of
Continuing Directors and (ii) certain transactions with Permitted Holders
(including Xxxxx Muse, its officers and directors, and their respective
Affiliates).
SECTION 4.16. Limitation on Liens.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur or assume any
Lien securing Indebtedness on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom, unless contemporaneously therewith effective provision is made, in
the case of the Company, to secure the Securities and all other amounts due
under this Indenture, and in the case of a Restricted Subsidiary which is a
Guarantor, to secure such Restricted Subsidiary's Subsidiary Guarantee of the
Securities and all other amounts due under this Indenture, equally and ratably
with such Indebtedness (or, in the event that such Indebtedness is subordinated
in right of payment to the Securities or such Subsidiary's Subsidiary Guarantee,
prior to such Indebtedness) with a Lien on the same properties and assets
securing such Indebtedness for so long as such Indebtedness is secured by such
Lien, except for (i) Liens securing Senior Indebtedness and Guarantor Senior
Indebtedness and (ii) Liens securing Indebtedness described in clause (xi) of
the definition of "Permitted Indebtedness"; provided that such Liens cover only
the property referred to in such definition.
SECTION 4.17. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the
close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Company has been made under the
supervision of the signing officer
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with a view to determining whether a Default or Event of Default has occurred
and whether or not the signers know of any Default or Event of Default by the
Company that occurred during such fiscal year. If they do know of such a Default
or Event of Default, their status and the action the Company is taking or
proposes to take with respect thereto. The first certificate to be delivered by
the Company pursuant to this Section 4.17 shall be for the fiscal year ending
December 31, 1998.
SECTION 4.18. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each
Subsidiary in accordance with the respective organizational documents of each
such Subsidiary and the rights (charter and statutory) and material franchises
of the Company and the Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right or franchise, or the corporate
existence of any Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and the Subsidiaries, taken as a whole; provided,
further, however, that a determination of the Board of Directors of the Company
shall not be required in the event of a merger of one or more Restricted
Subsidiaries of the Company with or into another Restricted Subsidiary of the
Company or another Person, if the surviving Person is a Restricted Subsidiary of
the Company organized under the laws of the United States or a State thereof or
of the District of Columbia. This Section 4.18 shall not prohibit the Company
from taking any other action otherwise permitted by, and made in accordance
with, the provisions of this Indenture.
SECTION 4.19. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in normal condition (subject
to ordinary wear and tear) and make all reasonably necessary repairs, renewals
or replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Restricted
Subsidiaries; provided, however, that nothing in this Section 4.19 shall prevent
the Company or any of its Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties, if such properties are, in
the reasonable and good faith judgment of the Board of Directors of the Company
or the Restricted Subsidiary, as the case may be, no longer reasonably necessary
in the conduct of their respective businesses.
(b) The Company shall provide or cause to be provided, for itself
and each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company, are reasonably adequate and appropriate for
the conduct of the business of the Company and such Restricted Subsidiaries.
SECTION 4.20. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Restricted Subsidiaries or properties of it or any of its Restricted
Subsidiaries and (ii) all material lawful claims for labor, materials, supplies
and services that, if unpaid, might by law become a Lien upon the property of it
or any of its Restricted Subsidiaries; provided, however, that there shall not
be required to be paid or discharged any such tax, assessment or charge, the
amount, applicability or validity of which is being contested in good faith by
appropriate
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proceedings and for which adequate provision has been made or where the failure
to effect such payment or discharge is not adverse in any material respect to
the Holders.
SECTION 4.21. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of, premium or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the obligations or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company 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, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.
(a) The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
Company's or any Guarantor's assets determined on a consolidated basis for the
Company to another Person or adopt a plan of liquidation unless (i) either (1)
the Company is the surviving Person or (2) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or the
person that acquires by conveyance, transfer or lease the properties and assets
of the Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company have been transferred,
shall be a corporation, partnership, limited liability company or trust
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (ii) such surviving person shall assume all of the
obligations of the Company under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
immediately after giving effect to such transaction and the use of the proceeds
therefrom (on a pro forma basis, including giving effect to any Indebtedness
incurred or anticipated to be incurred in connection with such transaction), (x)
no Default or Event of Default shall have occurred and be continuing and (y) the
Company (in the case of clause (1) of the foregoing clause (i)) or such Person
(in the case of clause (2) of the foregoing clause (i)) shall be able to incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.04; and (iv) the Company has delivered to the Trustee
prior to the consummation of the proposed transaction an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer complies with this Indenture and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing subsection (a), the transfer (by
lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all the properties and assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all the properties and assets of the Company, shall be deemed to
be the transfer of all or substantially all the properties and assets of the
Company.
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(c) Notwithstanding clauses (ii) and (iii) in paragraph (a) above,
(1) any Restricted Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company and (2) the
Company may merge with an Affiliate thereof incorporated solely for the purpose
of reorganizing the Company in another jurisdiction in the U.S. to realize tax
or other benefits. Notwithstanding paragraph (a) above, clauses (iii) and (iv)
thereof shall not apply to the Merger.
SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in
and complying with the conditions listed in Section 5.01 in which the Company is
not the surviving person and the surviving person is to assume all the
Obligations of the Company under the Securities, this Indenture and the
Registration Rights Agreement pursuant to a supplemental indenture, such
surviving person shall succeed to, and be substituted for, and may exercise
every right and power of the Company, and the Company shall be discharged from
its Obligations under this Indenture, the Securities and the Registration Rights
Agreement.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" for purposes
of this Indenture:
(a) the failure to pay interest on any Security when the same
becomes due and payable and the Default continues for a period of 30
days (whether or not such payment is prohibited by Article Seven;
(b) the failure to pay principal of or premium, if any, on any
Security when such principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by Article Seven);
(c) a default in the observance or performance of any other
covenant or agreement contained in the Securities or this Indenture,
which default continues for a period of 30 days after the Company
receives written notice thereof specifying the default from the Trustee
or Holders of at least 25% in aggregate principal amount of outstanding
Securities;
(d) the failure to pay at the final stated maturity (giving
effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness, if the aggregate principal amount of such Indebtedness,
together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final
stated maturity (giving effect to any extensions thereof) or which has
been accelerated, aggregates $10,000,000 or more at any time in each
case after a 10-day period during which such default shall not have
been cured or such acceleration rescinded;
(e) one or more judgments in an aggregate amount in excess of
$15,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the
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Company or any of its Significant Restricted Subsidiaries and such
judgment or judgments remain undischarged or unstayed for a period of
60 days after such judgment or judgments become final and
nonappealable;
(f) the Company or any of its Significant Restricted
Subsidiaries (or one or more Restricted Subsidiaries that, taken
together would constitute a Significant Restricted Subsidiary) pursuant
to or within the meaning of any Bankruptcy Law: (i) admits in writing
its inability to pay its debts generally as they become due; (ii)
commences a voluntary case or proceeding; (iii) consents to the entry
of an order for relief against it in an involuntary case or proceeding;
(iv) consents or acquiesces in the institution of a bankruptcy or
insolvency proceeding against it; (v) consents to the appointment of a
Custodian of it or for all or substantially all of its property; or
(vi) makes a general assignment for the benefit of its creditors, or
any of them takes any action to authorize or effect any of the
foregoing;
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against the
Company or any Significant Restricted Subsidiary (or one or more
Restricted Subsidiaries that, taken together would constitute a
Significant Restricted Subsidiary) of the Company in an involuntary
case or proceeding; (ii) appoints a Custodian of the Company or any
Significant Restricted Subsidiary (or one or more Restricted
Subsidiaries that, taken together would constitute a Significant
Restricted Subsidiary) of the Company for all or substantially all of
its property; or (iii) orders the liquidation of the Company or any
Significant Restricted Subsidiary (or one or more Restricted
Subsidiaries that, taken together would constitute a Significant
Restricted Subsidiary) of the Company; and in each case the order or
decree remains unstayed and in effect for 60 days; provided, however,
that if the entry of such order or decree is appealed and dismissed on
appeal, then the Event of Default hereunder by reason of the entry of
such order or decree shall be deemed to have been cured; or
(h) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in a judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or
any Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its Subsidiary Guarantee.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other than
an Event of Default specified in clause (f) or (g) of Section 6.01) occurs and
is continuing, the Trustee may, or the Trustee upon the request of Holders of
25% in principal amount of the outstanding Securities shall, or the Holders of
at least 25% in aggregate principal amount of the outstanding Securities may
declare the principal of all the Securities, together with all accrued and
unpaid interest and premium, if any, to be due and payable by notice in writing
to the Company and the Trustee specifying the respective Event of Default and
that it is a "notice of acceleration" (the "Acceleration Notice"), and the same
(i) shall become immediately due and payable or (ii) if there are any amounts
outstanding under the Senior Credit Facilities, will become due and payable upon
the first to occur of an acceleration under the Senior Credit Facilities or five
Business Days after receipt by the Company and the agent under the Senior Credit
Facilities of such Acceleration Notice (unless all Events of Default specified
in such Acceleration Notice have been cured or waived).
If an Event of Default specified in clause (f) or (g) of Section
6.01 occurs, all unpaid principal of and accrued interest on all outstanding
Securities shall ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
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At any time after such declaration with respect to the Securities,
the Holders of a majority in principal amount of Securities then outstanding (by
notice to the Trustee) may rescind and cancel such declaration and its
consequences if (i) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction, (ii) all existing Defaults and
Events of Default have been cured or waived except nonpayment of principal of or
interest on the Securities that has become due solely by such declaration of
acceleration, (iii) to the extent the payment of such interest is lawful,
interest (at the same rate specified in the Securities) on overdue installments
of interest and overdue payments of principal, which has become due otherwise
than by such declaration of acceleration has been paid, (iv) the Company has
paid the Trustee its reasonable compensation and reimbursed the Trustee for its
reasonable expenses, disbursements and advances and (v) in the event of the cure
or waiver of a Default or Event of Default of the type described in clause (f)
or (g) of Section 6.01, the Trustee has received an Officers' Certificate and
Opinion of Counsel that such Default or Event of Default has been cured or
waived. The Holders of a majority in principal amount of the Securities may
waive any existing Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any Securities. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration
of acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (a), (b), (c) and (d) of Section 6.01 or a
Default in respect of any term or provision of this Indenture that may not be
amended or modified without the consent of each Holder affected as provided in
Section 10.02. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Securities, respectively. This paragraph of this
Section 6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss.
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
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SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of another Holder, it being
understood that the Trustee shall have no duty (subject to Section 8.01) to
ascertain whether or not such actions or forebearances are unduly prejudicial to
such Holders, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. In the event the Trustee takes
any action or follows any direction pursuant to this Indenture, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against any loss or expense caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of ss. 316(a)(1)(A) of the TIA,
and such ss. 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction which, in the opinion of the Trustee, is inconsistent with
the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of or interest on a Security, on
or after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in Section 6.01(a), (b), (c) or (d) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the
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Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings 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 to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 8.07. 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; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and may be
a member of the creditors' committee.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to the Holders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
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 or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
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ARTICLE SEVEN
SUBORDINATION OF SECURITIES
SECTION 7.01. Agreement To Subordinate.
The Company agrees, and each Holder by accepting any Security
agrees, that the Indebtedness evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article
Seven, to the payment when due of all Senior Indebtedness of the Company and
that such subordination is for the benefit of and enforceable by the holders of
Senior Indebtedness. The Securities shall in all respects rank pari passu with
all other Senior Subordinated Indebtedness of the Company, and only Indebtedness
of the Company which is Senior Indebtedness will rank senior to the Securities
in accordance with the provisions set forth herein. Unsecured Indebtedness is
not deemed to be subordinate or junior to Secured Indebtedness merely because it
is unsecured, nor is any Indebtedness deemed to be subordinate or junior to
other Indebtedness merely because it matures after such other Indebtedness.
Secured Indebtedness is not deemed to be Senior Indebtedness merely because it
is secured. All provisions of this Article Seven shall be subject to Section
7.12.
SECTION 7.02. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of the Company upon
a total or partial liquidation or dissolution or reorganization or bankruptcy of
or similar proceeding relating to the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full in cash or Cash Equivalents of all
Senior Indebtedness of the Company before holders of Securities shall be
entitled to receive any payment of principal of or interest on or other
amounts with respect to the Securities from the Company; and
(2) until the Senior Indebtedness of the Company is paid in full,
in cash or Cash Equivalents, any payment or distribution to which Holders
would be entitled but for the provisions of this Article Seven shall be
made to holders of Senior Indebtedness as their interests may appear.
SECTION 7.03. Default on Senior Indebtedness.
The Company may not pay the principal of, premium (if any), or
interest on, and other obligations with respect to, the Securities or make any
deposit pursuant to Section 9.03 or repurchase, redeem or otherwise retire any
Securities (collectively, "pay the Securities") if (i) any Senior Indebtedness
is not paid when due or (ii) any other default on Senior Indebtedness occurs and
the maturity of such Senior Indebtedness is accelerated in accordance with its
terms unless, in either case, (x) the default has been cured or waived or is no
longer continuing and/or any such acceleration has been rescinded or (y) such
Senior Indebtedness has been paid in full; provided, however, that the Company
may pay the Securities, subject to the provisions of Section 7.02, without
regard to the foregoing if the Company and the Trustee receive written notice
approving such payment from the Representatives of the Senior Indebtedness with
respect to which either of the events set forth in clause (i) or (ii) of this
sentence has occurred or is continuing. During the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding sentence)
with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be accelerated immediately without further notice
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(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Securities (except (i) in Qualified Capital Stock issued by the Company to pay
interest on the Securities or issued in exchange for the Securities, (ii) in
securities substantially identical to the Securities issued by the Company in
payment of interest accrued thereon or (iii) in securities issued by the Company
which are subordinated to the Senior Indebtedness at least to the same extent as
the Securities and having a Weighted Average Life to Maturity at least equal to
the remaining Weighted Average Life to Maturity of the Securities) for a period
(a "Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to the Company) of written notice (a "Blockage Notice") of such default
from the Representative of the holders of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (ii) because the default giving rise to such Blockage
Notice has been cured, waived or is no longer continuing or (iii) because such
Designated Senior Indebtedness has been repaid in full). Notwithstanding the
provisions of the immediately preceding sentence, but subject to the provisions
of the first sentence of this Section 7.03 and the provisions of Section 7.02,
the Company may resume payments on the Securities after the end of such Payment
Blockage Period. Not more than one Blockage Notice may be given, and not more
than one Payment Blockage Period may occur, in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period. However, if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness (other than the agent under the Senior Credit Facilities), the
agent under the Senior Credit Facilities may give another Blockage Notice within
such period. In no event, however, may the total number of days during which any
Payment Blockage Period or Payment Blockage Periods are in effect exceed 179
days in the aggregate during any 360 consecutive day period. No nonpayment
default that existed or was continuing on the date of delivery of any Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage
Notice unless such default shall have been cured or waived for a period of not
less than 90 consecutive days.
SECTION 7.04. Acceleration of Payment of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Representative (if any) of any issue of Designated Senior Indebtedness which is
then outstanding; provided, however, that the Company and the Trustee shall be
obligated to notify such a Representative (other than with respect to the Senior
Credit Facilities) only if such Representative has delivered or caused to be
delivered an address for the service of such a notice to the Company and the
Trustee (and the Company and the Trustee shall be obligated only to deliver the
notice to the address so specified). If a notice is required pursuant to the
immediately preceding sentence, the Company may not pay the Securities (except
payment (i) in Qualified Capital Stock issued by the Company to pay interest on
the Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company in payment of
interest accrued thereon or (iii) securities issued by the Company which are
subordinated to the Senior Indebtedness at least to the same extent as the
Securities and have a Weighted Average Life to Maturity at least equal to the
remaining Weighted Average Life to Maturity of the Securities), until five
Business Days after the respective Representative of the Designated Senior
Indebtedness receives notice (at the address specified in the preceding
sentence) of such acceleration and thereafter may pay the Securities only if the
provisions of this Article Seven otherwise permit payment at that time.
SECTION 7.05. When Distribution Must Be Paid Over.
If a distribution is made to the Trustee or to Holders that
because of this Article Seven should not have been made to them, the Trustee or
the Holders who receive such distribution shall hold it in trust for
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holders of Senior Indebtedness and promptly pay it over to them as their
respective interests may appear; provided, however, that the liabilities of the
Trustee under this Section 7.05 are limited by Section 7.15.
SECTION 7.06. Subrogation.
After all Senior Indebtedness is paid in full and until the
Securities are paid in full, Holders shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article Seven to holders of Senior
Indebtedness which otherwise would have been made to Holders is not, as between
the Company and the Holders, a payment by the Company of Senior Indebtedness.
SECTION 7.07. Relative Rights.
This Article Seven defines the relative rights of Holders of the
Securities on the one hand and holders of Senior Indebtedness on the other hand.
Nothing in this Indenture shall:
(1) impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions otherwise
payable to Holders.
SECTION 7.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by the failure of the Company to
comply with this Indenture.
SECTION 7.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 7.03, the Trustee or Paying Agent may
continue to make payments on the Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article Seven. The Company, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness may give the notice; provided, however, that if an issue of Senior
Indebtedness has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article Seven with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article Seven shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article Seven shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 8.07.
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SECTION 7.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness, the distribution may be made and the notice given to
their Representative (if any).
SECTION 7.11. Article Seven Not To Prevent Events of Default or Limit Right To
Accelerate.
The failure to make a payment in respect of the Securities by
reason of any provision in this Article Seven shall not be construed as
preventing the occurrence of a Default or Event of Default. Nothing in this
Article Seven shall have any effect on the right of the Holders or the Trustee
to accelerate the maturity of the Securities.
SECTION 7.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust
under Article Nine by the Trustee for the payment of principal of and interest
on the Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article Seven, and
none of the Holders shall be obligated to pay over any such amount to the
Company, any holder of Senior Indebtedness of the Company, or any other creditor
of the Company.
SECTION 7.13. Trustee Entitled To Rely.
Upon any payment or distribution pursuant to this Article Seven,
the Trustee and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 7.02 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (iii) upon the Representatives for the
holders of Senior Indebtedness for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Seven. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article Seven, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article Seven, and, if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The Trustee shall have the right to seek a declaratory judgment as to
any right of such Person to receive such payment. The provisions of Sections
8.01 and 8.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article Seven.
SECTION 7.14. Trustee To Effectuate Subordination.
Each Holder by accepting a Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holder and the holders
of Senior Indebtedness as provided in this Article Seven and appoints the
Trustee as attorney-in-fact for any and all such purposes.
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SECTION 7.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Company, or any other
Person, money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Seven or otherwise.
SECTION 7.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions.
Each Holder by accepting a Security acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE EIGHT
TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) If a 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance
of such duties as are specifically set forth herein; 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 conforming to
the requirements of this Indenture; provided, however, that 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 such certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee shall 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 8.01;
(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
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(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 Sections 6.02, 6.04 and 6.05.
(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 take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive from such Holders an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 8.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. Rights of Trustee.
Subject to Section 8.01:
(a) The Trustee may 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
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to the provisions of Section 13.05. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or negligence
of any agent or attorney (other than an agent who is an employee of the
Trustee) appointed with due care and appointed with the consent of the
Company.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers.
(e) Before the Trustee acts or refrains from acting, it may
consult with counsel and the advice or opinion of such counsel as to
matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
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such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness 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,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(j) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(k) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee shall
not be answerable for other than its gross negligence or willful
misconduct.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or their
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 is subject to Sections
8.10 and 8.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company or any Guarantor in this Indenture or any document issued in connection
with the sale of Securities or any statement in the Securities other than the
Trustee's certificate of authentication.
SECTION 8.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and
the Trustee has actual knowledge of such Defaults or Events of Default, the
Trustee shall mail to each Holder notice of the Default or Event of Default
within 30 days after the occurrence thereof. Except in the case of a Default or
an Event of Default in payment of principal of or interest on any Security or a
Default or Event of Default in complying with Section 5.01, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of the Holders.
This Section 8.05 shall be in lieu of the proviso to ss. 315(b) of the TIA and
such proviso to ss. 315(b) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
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SECTION 8.06. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after each February
1 beginning with March 1, 1997, the Trustee shall mail to each Holder a report
dated as of such February 1 that complies with TIA ss. 313(a). The Trustee also
shall comply with TIA ss. 313(b), (c) and (d).
A copy of each such report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange, if any, on which the
Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 8.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and the
Agents from time to time, and the Trustee and the Agents shall be entitled to,
such compensation as the Company and the Trustee and the Agents shall from time
to time agree in writing for their respective 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 and
the Agents upon request for all reasonable disbursements, expenses and advances,
including all costs and expenses of collection and reasonable fees,
disbursements and expenses of its agents and outside counsel incurred or made by
any of them in addition to the compensation for their respective services except
any such disbursements, expenses and advances as may be attributable to
negligence or willful misconduct of the party to be reimbursed. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and outside counsel and any taxes or
other expenses incurred by a trust created pursuant to Section 9.01 hereof.
The Company and the Guarantors shall indemnify the Trustee and the
Agents for, and hold them harmless against any and all loss, damage, claims,
liability or expense, including taxes (other than franchise taxes imposed on the
indemnified party and taxes based upon, measured by or determined by the income
of the indemnified party), arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against or investigating any claim or liability
in connection with the exercise or performance of any of their powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to negligence or willful misconduct of the indemnified party. The
indemnified party shall notify the Company promptly of any claim asserted
against the indemnified party for which it may seek indemnity. However, the
failure by the indemnified party to so notify the Company shall not relieve the
Company and the Guarantors of their obligations hereunder unless the Company and
the Guarantors have been prejudiced thereby. The Company and the Guarantors
shall defend the claim and the indemnified party shall cooperate in the defense
at the expense of the Company and the Guarantors; provided that the Company and
the Guarantors shall not be liable in any action or for which they have assumed
the defense for the expenses of separate counsel to the indemnified party unless
(1) the employment of separate counsel has been authorized by the Company and
the Guarantors, (2) the indemnified party has reasonably concluded (based upon
advice of counsel to the indemnified party) that there may be legal defenses
available to the indemnified party that are different from or in addition to
those available to the Company and the Guarantors or (3) a conflict or potential
conflict exists (based upon advice of counsel to the indemnified party) between
the indemnified party, the Company and the Guarantors; provided further,
however, that in any such event the reimbursement obligation of the Company and
the Guarantors with respect to separate counsel of the indemnified party will be
limited to the reasonable fees and expenses of such counsel.
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The Company and the Guarantors need not pay for any settlement
made without their written consent, which consent shall not be unreasonably
withheld. The Company and the Guarantors need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee or an Agent as a
result of its own negligence or willful misconduct.
To secure the payment obligations of the Company and the
Guarantors in this Section 8.07, the Trustee shall have a Lien prior to the
Securities against all money or property held or collected by the Trustee, in
its capacity as Trustee, except money or property held in trust to pay principal
of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute expenses
of administration under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company 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 8.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a 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 Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the 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. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 8.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 8.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have 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 Holders of at least 10% in 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.
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If the Trustee fails to comply with Section 8.10, any Holder 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 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. 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 or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee; provided, however, that such corporation shall be otherwise
qualified and eligible under this Article Eight.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible
to act as Trustee under TIA xx.xx. 310(a)(1) and 310(a)(2). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA ss. 310(b), the
Trustee and the Company shall comply with the provisions of TIA ss. 310(b);
provided, however, that there shall be excluded from the operation of TIA ss.
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.10, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Eight. The provisions of TIA ss. 310 shall apply to the Company and any
other obligor of the Securities.
SECTION 8.11. Preferential Collection of Claims Against the Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Securities and
this Indenture as well as the obligations of the Guarantors under their
respective Subsidiary Guarantees, except those obligations referred to in the
penultimate paragraph of this Section 9.01, if :
(i) either (a) all the Securities theretofore authenticated
and delivered (except lost, stolen or destroyed Securities which have
been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter
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repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation or (b) all Securities not
theretofore delivered to the Trustee for cancellation have become due
and payable or have been called for redemption and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds
in an amount sufficient to pay and discharge the entire Indebtedness on
the Securities not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the
Securities to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be;
(ii) the Company has paid all other sums payable under this
Indenture by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the first paragraph of this Section 9.01, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 8.07, 8.08, 9.05
and 9.06 shall survive until the Securities are no longer outstanding pursuant
to Section 2.08. After the Securities are no longer outstanding, the Company's
obligations in Sections 8.07, 8.08, 9.05 and 9.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's and
Guarantors' obligations under the Securities, the Subsidiary Guarantees and this
Indenture except for those surviving obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant Defeasance
(a) The Company may terminate its obligations in respect of the
Securities by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by it on account of principal of and
interest on all Securities or otherwise. In addition to the foregoing, the
Company may, at its option, at any time elect to have either paragraph (b) or
(c) below be applied to all outstanding Securities, subject in either case to
compliance with the conditions set forth in Section 9.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.03, be deemed to have paid
and discharged the entire indebtedness represented by the outstanding
Securities, except for (i) the rights of Holders to receive payments in respect
of the principal of, premium, if any, and interest on the Securities when such
payments are due, (ii) the Company's obligations with respect to the Securities
under Sections 2.03 through 2.07, inclusive, and 4.02, (iii) the rights, powers,
trust, duties and immunities of the Trustee under this Indenture and the
Company's obligations in connection therewith and (iv) Article Nine of this
Indenture (hereinafter, "Legal Defeasance"). Subject to compliance with this
Article Nine, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.03, be released from its
obligations under Sections 4.03 through 4.16, inclusive, 4.19 and Article Five
with respect to the outstanding Securities (hereinafter, "Covenant Defeasance")
and thereafter any omission to comply with such obligations shall not constitute
a Default or an Event of Default with respect to the Securities.
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SECTION 9.03. Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance pursuant to Section
9.02(b) or Covenant Defeasance pursuant to Section 9.02(c):
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars or United
States 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 on the stated date for payment thereof or
on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 9.02(b), the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities 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 9.02(c), the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
of the 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 on the same amounts, 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 shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Sections 6.01(f) and 6.01(g) are concerned, at any
time in the period ending on the 91st day after the date of such deposit;
(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 or any
of its Restricted Subsidiaries is a party or by which the Company or any
of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with; and
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(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that assuming no intervening bankruptcy or
insolvency of the Company between the date of deposit and the 91st day
following the deposit and that no Holder is an insider of the Company,
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (x) have become due and payable, (y)
will become due and payable on the Final Maturity Date within one year or (z)
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company.
SECTION 9.04. Application of Trust Money; Trustee Acknowledgment and Indemnity.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.03, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of, premium,
if any, and interest on the Securities.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations specified
above.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to Section 9.03 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 9.05. Repayment to Company.
Subject to Sections 8.07 and 9.04, the Trustee shall promptly pay
to the Company upon written request any excess money held by it at any time. The
Trustee shall pay to the Company upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Holders entitled to
money must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 9.06. Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit
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had occurred pursuant to Section 9.02 until such time as the Trustee is
permitted to apply all such money or United States Government Obligations in
accordance with Section 9.02; provided, however, that if the Company has made
any payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
United States Government Obligations held by the Trustee.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a resolution of
the Board of Directors, and the Trustee may amend or supplement this Indenture
or the Securities without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency; provided,
however, that such amendment or supplement does not adversely affect the
rights of any Holder;
(b) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) to comply with any requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit
or rights to the Holders;
(f) to make any other change that does not adversely affect the
rights of any Holder under this Indenture;
(g) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(h) to reflect the release of a Guarantor from its obligations
with respect to its Guarantee in accordance with the provisions of
Section 11.03 and to add a Guarantor pursuant to the requirements of
Section 4.14; or
(i) to secure the Securities pursuant to the requirements of
Section 4.16 or otherwise;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.01.
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SECTION 10.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Guarantors, when
authorized by a Board Resolution, and the Trustee may modify, amend or
supplement, or waive compliance by the Company with any provision of, this
Indenture or the Securities with the written consent of the Holders of at least
a majority in principal amount of the outstanding Securities. However, without
the consent of each Holder affected, no such modification, amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may:
(a) [reserved];
(b) reduce the principal amount of or change the Stated Maturity
of any Security or alter the provisions with respect to the repurchase or
redemption of the Securities (other than provisions relating to Section
4.08 or 4.15);
(c) reduce the rate of or change the time for payment of interest
on any Security;
(d) make any Security payable in money other than that stated in
the Securities;
(e) make any change in the provisions of this Indenture relating
to the rights of Holders of Securities to receive payments of principal
of or premium, if any, or interest on the Securities;
(f) modify any provisions of Section 6.04 (other than to add
sections of this Indenture or the Securities subject thereto) or 6.07 or
this Section 10.02 (other than to add sections of this Indenture or the
Securities which may not be modified, amended, supplemented or waived
without the consent of each Holder affected);
(g) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any
Default in respect thereof;
(h) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except a
rescission of acceleration of the Securities by the Holders thereof as
provided in Section 6.02 and a waiver of the payment default that
resulted from such acceleration);
(i) waive a mandatory repurchase or redemption payment with
respect to any Security required by Section 4.08 or 4.15; or
(j) modify the ranking or priority of any Security or the
Subsidiary Guarantee in respect thereof of any Guarantor in any manner
adverse to the Holders of the Securities.
It shall not be necessary for the consent of the Holders under
this Section 10.02 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 10.02
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 amendment, supplement or
waiver.
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SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. Record Date for Consents and Effect of Consents.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Securities entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then those
persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date. The Trustee is entitled to rely upon any electronic
instruction from beneficial owners to the Holders of any Global Security.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(a) through (j) of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.05. 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 Trustee. 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 determine, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
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 Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (subject to customary exceptions). 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 or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
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ARTICLE ELEVEN
SUBSIDIARY GUARANTEES
SECTION 11.01. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each, a "Subsidiary Guarantee") to each Holder of a Security
authenticated by the Trustee and to the Trustee and its successors and assigns
that: the principal of and interest on the Securities will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and interest on
any overdue interest on the Securities and all other obligations of the Company
to the Holders or the Trustee hereunder or under the Securities will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
subject, however, to the limitations set forth in Section 11.04. Each Guarantor
hereby agrees that its obligations hereunder 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 waiver or
consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. 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, protest, notice and all demands whatsoever
and covenants that the Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and this Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company, any Guarantor, or
any custodian, trustee, liquidator or other similar official acting in relation
to the Company or any Guarantor, any amount paid by the Company or any Guarantor
to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for
the purpose of this Subsidiary Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall forth become due and payable by each Guarantor for the purpose of this
Subsidiary Guarantee.
SECTION 11.02. Severability.
In case any provision of this Subsidiary Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
(a) If the Securities are defeased in accordance with the terms of
this Indenture, or if Section 5.01(b) is complied with, or if, subject to the
requirements of Section 5.01(a), all or substantially all of the assets of any
Guarantor or all of the equity interests of any Guarantor are sold (including by
issuance or otherwise) by the Company in a transaction constituting an Asset
Sale and (x) the Net Cash Proceeds from such Asset Sale are used in accordance
with Section
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4.08 or (y) the Company delivers to the Trustee an Officers' Certificate to the
effect that the Net Cash Proceeds from such Asset Sale shall be used in
accordance with Section 4.08 and within the time limits specified by Section
4.08, then each Guarantor (in the case of defeasance) or such Guarantor (in the
case of compliance with Section 5.01(b) or in the event of a sale or other
disposition of all of the equity interests of such Guarantor) or the Person
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
discharged from all obligations under this Article Eleven without any further
action required on the part of the Trustee or any Holder. The Trustee shall, at
the sole cost and expense of the Company and upon receipt at the reasonable
request of the Trustee of an Opinion of Counsel that the provisions of this
Section 11.03 have been complied with, deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section
11.03. Any Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities and the other obligations of the
Company hereunder as provided in this Article Eleven.
(b) Any Guarantor that is designated an Unrestricted Subsidiary
shall upon such designation be released and discharged of all obligations under
this Article Eleven without any further action required on the part of the
Trustee or any Holder.
SECTION 11.04. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirms that it is the intention of all such parties that the
Guarantee by such Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of title 11 of the United
States Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar U.S. Federal or state or other applicable
law. To effectuate the foregoing intention, the Holders and each Guarantor
hereby irrevocably agree that the obligations of each Guarantor under its
Subsidiary Guarantee 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 Subsidiary Guarantee or pursuant to Section 11.05, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting
such a fraudulent transfer or conveyance.
SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with GAAP,
subject to Section 11.04, for all payments, damages and expenses incurred by
such Funding Guarantor in discharging the Company's obligations with respect to
the Securities or any other Guarantor's obligations with respect to the
Subsidiary Guarantee.
SECTION 11.06. Execution of Subsidiary Guarantee.
To further evidence their Guarantee to the Holders, each of the
Guarantors hereby agree to execute a Subsidiary Guarantee to be endorsed on each
Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 11.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a Subsidiary Guarantee. Each such Subsidiary Guarantee shall be
signed on behalf of each Guarantor by its Chairman of the Board, its President
or one of its Vice Presidents prior to the authentication of the Security on
which it is endorsed, and
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the delivery of such Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Subsidiary Guarantee on behalf
of such Guarantor. Such signature upon the Subsidiary Guarantee may be manual or
facsimile signature of such officer and may be imprinted or otherwise reproduced
on the Subsidiary Guarantee, and in case such officer who shall have signed the
Subsidiary Guarantee shall cease to be such officer before the Security on which
such Subsidiary Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed the Subsidiary Guarantee had not ceased to be such officer of
such Guarantor.
SECTION 11.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company
that arises from the payment, performance or enforcement of such Guarantor's
obligations under its Subsidiary Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF SUBSIDIARY GUARANTEE
SECTION 12.01. Agreement To Subordinate.
Each Guarantor agrees, and each Holder by accepting a Subsidiary
Guarantee agrees, that the Indebtedness of such Guarantor evidenced by the
Subsidiary Guarantee is subordinated in right of payment, to the extent and in
the manner provided in this Article Twelve, to the payment when due of all
Guarantor Senior Indebtedness of such Guarantor and that such subordination is
for the benefit of and enforceable by the holders of Guarantor Senior
Indebtedness. The Subsidiary Guarantee shall in all respects rank pari passu
with all other Guarantor Senior Subordinated Indebtedness of a Guarantor, and
only Indebtedness of a Guarantor which is Guarantor Senior Indebtedness will
rank senior to the Subsidiary Guarantee in accordance with the provisions set
forth herein. Unsecured Indebtedness is not deemed to be subordinate or junior
to Secured Indebtedness merely because it is unsecured, nor is any Indebtedness
deemed to be subordinate or junior to other Indebtedness merely because it
matures after such other Indebtedness. Secured Indebtedness is not deemed to be
Senior Indebtedness merely because it is secured. All provisions of this Article
Twelve shall be subject to Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of a Guarantor upon
a total or partial liquidation or dissolution or reorganization or bankruptcy of
or similar proceeding relating to a Guarantor or its property:
(1) holders of Guarantor Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full in cash or Cash Equivalents
of all Guarantor Senior Indebtedness of such Guarantor before Holders
shall be entitled to receive any payment of principal of or interest on
or other amounts with respect to the Securities from such Guarantor; and
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(2) until the Guarantor Senior Indebtedness of such Guarantor is
paid in full, any payment or distribution to which Holders would be
entitled but for the provisions of this Article Twelve shall be made to
holders of Guarantor Senior Indebtedness as their interests may appear.
SECTION 12.03. Default on Guarantor Senior Indebtedness.
No Guarantor may pay the principal of, premium (if any), or
interest on, and other obligations with respect to, the Securities or make any
deposit pursuant to Section 9.03 or repurchase, redeem or otherwise retire any
Securities (collectively, "pay the Securities") if (i) any Guarantor Senior
Indebtedness is not paid in cash or Cash Equivalents when due or (ii) any other
default on Guarantor Senior Indebtedness occurs and the maturity of such
Guarantor Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived or is no longer
continuing and/or any such acceleration has been rescinded or (y) such Guarantor
Senior Indebtedness has been paid in full; provided, however, that the Guarantor
may pay the Securities subject to the provisions of Section 12.02, without
regard to the foregoing if the Guarantor and the Trustee receive written notice
approving such payment from the Representatives of the Senior Indebtedness with
respect to which either of the events set forth in clause (i) or (ii) of this
sentence has occurred or is continuing. During the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding sentence)
with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, a Guarantor may not pay the Securities (except (i)
in Qualified Capital Stock issued by such Guarantor to pay interest on the
Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by such Guarantor in payment of
interest accrued thereon or (iii) in securities issued by such Guarantor which
are subordinated to the Guarantor Senior Indebtedness at least to the same
extent as the Securities and having a Weighted Average Life to Maturity at least
equal to the remaining Weighted Average Life to Maturity of the Securities) for
a period (a "Guarantor Payment Blockage Period") commencing upon the receipt by
the Trustee (with a copy to the Guarantor) of written notice (a "Guarantor
Blockage Notice") of such default from the Representative of the holders of such
Designated Senior Indebtedness specifying an election to effect a Guarantor
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Guarantor Payment Blockage Period is terminated (i) by written notice to the
Trustee and the Guarantor from the Person or Persons who gave such Guarantor
Blockage Notice, (ii) because the default giving rise to such Guarantor Blockage
Notice is no longer continuing) or (iii) because such Designated Senior
Indebtedness has been repaid in full. Notwithstanding the provisions of the
immediately preceding sentence, but subject to the provisions of the first
sentence of this Section 12.03 and the provisions of Section 12.02, the
Guarantor may resume payments on the Securities after the end of such Payment
Blockage Period. Not more than one Blockage Notice may be given, and not more
than one Payment Blockage Period may occur, in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period. However, if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness (other than the agent under the Senior Credit Facilities), the
agent under the Senior Credit Facilities may give another Blockage Notice within
such period. In no event, however, may the total number of days during which any
Payment Blockage Period or Payment Blockage Periods are in effect exceed 179
days in the aggregate during any 360 consecutive day period. No nonpayment
default that existed or was continuing on the date of delivery of any Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage
Notice unless such default shall have been cured or waived for a period of not
less than 90 consecutive days.
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SECTION 12.04. Acceleration of Payment of Securities.
If a notice is required pursuant to the first sentence of Section
7.04, no Guarantor may pay the Securities (except payment (i) in Qualified
Capital Stock issued by the Guarantor to pay interest on the Securities or
issued in exchange for the Securities, (ii) in securities substantially
identical to the Securities issued by the Guarantor in payment of interest
accrued thereon or (iii) securities issued by the Guarantor which are
subordinated to the Guarantor Senior Indebtedness at least to the same extent as
the Securities and have a Weighted Average Life to Maturity at least equal to
the remaining Weighted Average Life to Maturity of the Securities), until five
Business Days after the respective Representative of the Designated Senior
Indebtedness receives notice (at the address specified in the preceding
sentence) of such acceleration and thereafter, may pay the Securities only if
the provisions of this Article Twelve otherwise permit payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over.
If a distribution is made to the Trustee or to Holders that
because of this Article Twelve should not have been made to them, the Trustee or
the Holders who receive such distribution shall hold it in trust for holders of
Guarantor Senior Indebtedness and promptly pay it over to them as their
respective interests may appear; provided, however, that the liabilities of the
Trustee under this Section 12.05 are limited by Section 12.15.
SECTION 12.06. Subrogation.
After all Guarantor Senior Indebtedness is paid in full and until
the Securities are paid in full, Holders shall be subrogated to the rights of
holders of Guarantor Senior Indebtedness to receive distributions applicable to
Guarantor Senior Indebtedness. A distribution made under this Article Twelve to
holders of Guarantor Senior Indebtedness which otherwise would have been made to
Holders is not, as between the Guarantor and the Holders, a payment by any
Guarantor of Guarantor Senior Indebtedness.
SECTION 12.07. Relative Rights.
This Article Twelve defines the relative rights of Holders of the
Securities on the one hand and holders of Guarantor Senior Indebtedness on the
other hand. Nothing in this Indenture shall:
(a) impair, as between the Guarantor and the Holders, the
obligations of any Guarantor, which are absolute and unconditional, in
respect of its Subsidiary Guarantee; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Guarantor Senior Indebtedness to receive
distributions otherwise payable to Holders.
SECTION 12.08. Subordination May Not Be Impaired by Guarantor.
No right of any holder of Guarantor Senior Indebtedness to enforce
the subordination of the obligations under any Subsidiary Guarantee evidenced by
the Securities shall be impaired by any act or failure to act by any Guarantor
or by the failure of any Guarantor to comply with this Indenture.
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SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent may
continue to make payments on the Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article Twelve. A Guarantor, the Registrar
or co-registrar, the Paying Agent, a Representative or a holder of Guarantor
Senior Indebtedness may give the notice; provided, however, that if an issue of
Guarantor Senior Indebtedness has a Representative, only the Representative may
give the notice.
The Trustee in its individual or any other capacity may hold
Guarantor Senior Indebtedness with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article Twelve with respect to any Guarantor Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Guarantor
Senior Indebtedness; and nothing in Article Twelve shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article Twelve shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 8.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Guarantor Senior Indebtedness, the distribution may be made and the notice
given to their Representative, if any.
SECTION 12.11. Article Twelve Not To Prevent Events of Default or Limit Right To
Accelerate.
The failure to make a payment in respect of the Securities by
reason of any provision in this Article Twelve shall not be construed as
preventing the occurrence of a Default or Event of Default. Nothing in this
Article Twelve shall have any effect on the right of the Holders or the Trustee
to enforce any Subsidiary Guarantee or to accelerate the maturity of the
Securities.
SECTION 12.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust
under Article Eight by the Trustee for payment in respect of the Subsidiary
Guarantees shall not be subordinated to the prior payment of any Guarantor
Senior Indebtedness or subject to the restrictions set forth in this Article
Twelve, and none of the Holders shall be obligated to pay over any such amount
to such Guarantor, any holder of Guarantor Senior Indebtedness of such
Guarantor, or any other creditor of such Guarantor.
SECTION 12.13. Trustee Entitled To Rely.
Upon any payment or distribution pursuant to this Article Twelve,
the Trustee and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 12.02 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (iii) upon the Representatives for the
holders of Guarantor Senior Indebtedness for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Guarantor Senior Indebtedness and other Indebtedness of any Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distrib-
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uted thereon and all other facts pertinent thereto or to this Article Twelve. In
the event that the Trustee determines, in good faith, that evidence is required
with respect to the right of any Person as a holder of Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Twelve, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article Twelve, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
Trustee shall have the right to seek a declaratory judgment as to any right of
such Person to receive such payment. The provisions of Sections 8.01 and 8.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article Twelve.
SECTION 12.14. Trustee To Effectuate Subordination.
Each Holder by accepting a Subsidiary Guarantee authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the Holder
and the holders of Guarantor Senior Indebtedness as provided in this Article
Twelve and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or the
Guarantor, or any other Person, money or assets to which any holders of
Guarantor Senior Indebtedness shall be entitled by virtue of this Article Twelve
or otherwise.
SECTION 12.16. Reliance by Holders of Guarantor Senior Indebtedness on
Subordination Provisions.
Each Holder by accepting a Subsidiary Guarantee acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Guarantor Senior
Indebtedness, whether such Guarantor Senior Indebtedness was created or acquired
before or after the issuance of the Subsidiary Guarantee, to acquire and
continue to hold, or to continue to hold, such Guarantor Senior Indebtedness and
such holder of Guarantor Senior Indebtedness shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Guarantor Senior Indebtedness.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this In-
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denture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The provisions of TIA xx.xx. 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 13.02. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile and confirmed by overnight
courier, or mailed by first-class mail addressed as follows:
if to the Company:
LIN Acquisition Company
0 Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Copy to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Lawwrence X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid,
to a Holder including any notice delivered in connection with TIA ss. 310(b),
TIA ss. 313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to him at his
address as set forth on the Security register and shall be sufficiently given to
him if so
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mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA ss. 313(c).
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders 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 ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance 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 complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers' Certificate
or certificates of public officials.
SECTION 13.05. Statements Required in Certificate.
Each certificate 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 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 contained in such certificate 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
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
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SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, THE
SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.08. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Securities or the Subsidiary
Guarantees, as the case may be, or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Security and the Subsidiary Guarantees waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities and the Subsidiary Guarantees.
SECTION 13.09. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of each Guarantor in this Indenture
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.11. Severability.
In case any provision in this Indenture, in the Securities or in
the Subsidiary Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and a Holder shall have no claim
therefor against any party hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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SECTION 13.13. Legal Holidays.
If a payment date is not a Business Day at a place of payment,
payment may be made at that place on the next succeeding Business Day.
[Remainder of page intentionally left blank]
80
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
LIN ACQUISITION COMPANY
By:
-------------------------------
Name:
Title:
INDIANA BROADCASTING, LLC
WAVY BROADCASTING, LLC
WOOD LICENSE CO., LLC
WIVB BROADCASTING, LLC,
as Guarantors
By: LIN Television Corporation,
its Managing Member
By:
-------------------------------
Name:
Title:
LIN TELEVISION OF TEXAS, L.P.,
as Guarantor
By: LIN Television of Texas, Inc.,
its General Partner
By:
-------------------------------
Name:
Title:
81
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AIRWAVES, INC.
BUFFALO BROADCASTING CO. INC.
BUFFALO MANAGEMENT ENTERPRISES
CO. INC.
KXAN, INC.
KXTX HOLDINGS, INC.
LINBENCO, INC.
LIN SPORTS, INC.
LIN TELEVISION OF TEXAS, INC.
LWWI BROADCASTING INC.
NORTH TEXAS BROADCASTING
CORPORATION
WAND TELEVISION, INC.
WOOD TELEVISION, INC.
WTNH BROADCASTING, INC.,
as Guarantors
By:
-------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-------------------------------
Name:
Title:
82
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING 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
THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND, IN THE CASE OF THE
FOREGOING CLAUSE (D), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
ISSUERS AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-1
83
LIN ACQUISITION COMPANY
8 3/8% Senior Subordinated Note due 2008
CUSIP No.:[ ]
No. [ ] $[ ]
LIN ACQUISITION COMPANY, a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received, promise to
pay to [ ] or registered assigns the principal sum of [ ] Dollars, on March 1,
2008.
Interest Payment Dates: September 1 and March 1, commencing on
September 1, 1998
Interest Record Dates: February 15 and August 15.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
LIN ACQUISITION COMPANY
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Dated: March 3, 1998
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 8 3/8% Senior Subordinated Notes due 2008,
described in the within-mentioned Indenture.
Dated: March 3, 0000
XXXXXX XXXXXX TRUST COMPANY OF
NEW YORK, as Trustee
By:
------------------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
LIN ACQUISITION COMPANY
8 3/8% Senior Subordinated Note due 2008
1. Interest.
LIN ACQUISITION COMPANY promises to pay interest on the principal
amount of this Security at the rate per annum shown above. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from March 3, 1998. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing on
September 1, 1998. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by the Securities.
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 the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are canceled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
March 3, 1998 (the "Indenture"), by and among the Company, the Guarantors named
therein and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Company designated as its 8 3/8% Senior
Subordinated Notes due 2008, Series A (the "Initial Securities"), limited in
aggregate principal amount to $300,000,000, which may be issued under the
Indenture. The Securities include the Initial Securities, the Private Exchange
Securities (as defined in the Indenture) and the Unrestricted Securities (as
defined in the Indenture). All Securities issued under the
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Indenture are treated as a single class of securities under the Indenture. 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 of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
(except as otherwise indicated in the Indenture) until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of them. The Securities
are general unsecured obligations of the Company. The Securities are
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company to the extent and in the manner provided in the Indenture. Each
Holder of a Security, by accepting a Security, agrees to such subordination,
authorizes the Trustee to give effect to such subordination and appoints the
Trustee as attorney-in-fact for such purpose.
5. Optional Redemption.
(a) The Securities will be redeemable at the option of the
Company, in whole or in part, at any time on or after March 1, 2003, at the
redemption prices (expressed as a percentage of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Interest Record Date
to receive interest due on the relevant Interest Payment Date) if redeemed
during the 12-month period commencing on March 1 of the years indicated below:
Year Percentage
---- -----------
2003 104.188%
2004 102.792%
2005 101.396%
2006 and thereafter 100.000%
(b) Prior to March 1, 2001, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Securities at a redemption price equal to 108.375% of
the principal amount thereof plus accrued and unpaid interest to the redemption
date; provided, however, that after any such redemption, at least 65% of the
aggregate principal amount of the Securities originally issued would remain
outstanding immediately after giving effect to such redemption. Any such
redemption will be required to occur on or prior to the date that is one year
after the receipt by the Company of the proceeds of an Equity Offering. The
Company shall effect such redemption on a pro rata basis.
(c) Prior to March 1, 2003, upon the occurrence of a Change of
Control, the Company will have the option to redeem the Securities in whole but
not in part (a "Change of Control Redemption") at a redemption price equal to
100% of the principal amount thereof, plus accrued and unpaid interest to the
redemption date, plus the Applicable Premium. In order to effect a Change of
Control Redemption, the Company must send a notice to each Holder, which notice
shall govern the terms of the Change of Control Redemption. Such notice must
comply with the provisions of Section 3.03 of the Indenture; provided, however,
that such notice must be mailed to Holders within 30 days following the date the
Change of Control occurred (the "Change of Control Redemption Date") and state
that the Company is effecting a Change of Control Redemption in lieu of a Change
of Control Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the principal
amount of such Security and (ii) the excess of (A) the present value at such
time of (1) the redemption price of such Security at March 1, 2003 (such
redemption price being described in paragraph (a) above) plus (2) all
semi-annual payments of interest through March 1, 2003 com-
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puted using a discount rate equal to the Treasury Rate plus 75 basis points over
(B) the principal amount of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury Securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior to
the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Change of Control Redemption Date to March
1, 2003; provided, however, that if the period from the Change of Control
Redemption Date to March 1, 2003 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury Securities for which such yields are given except that if the period
from the Change of Control Redemption Date to March 1, 2003 is less than one
year, the weekly average yield on actually traded United States Treasury
Securities adjusted to a constant maturity of one year shall be used.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
7. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall, within 30
days after the Change of Control Date, be required to offer to purchase all
Securities then outstanding at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the date of such purchase (subject to the right of Holders of record on
the relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date).
8. Limitation on Disposition of Assets.
The Company is, subject to certain conditions and certain
exceptions, obligated to offer to purchase the Securities at a purchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of such purchase (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Record Date) with the proceeds of certain asset dispositions.
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9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
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 certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner
of it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at their written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Subsidiary Guarantees,
except for certain provisions thereof, and may be discharged from obligations to
comply with certain covenants contained in the Indenture, the Securities and the
Subsidiary Guarantees, in each case upon satisfaction of certain conditions
specified in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities
(including the Subsidiary Guarantees) 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 with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture, the Securities and the Subsidiary Guarantees
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities
or comply with any requirements of the SEC in connection with the qualification
of the Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to sell assets, to permit
restrictions on dividends and other payments by Subsidiaries to the Company, to
consolidate, merge or sell all or substantially all of its assets and to engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must report annually to the
Trustee on compliance with such limitations.
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15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 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, the Securities or the Subsidiary Guarantees
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Subsidiary Guarantees unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
16. Trustee Dealings with Company and Guarantors.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Guarantors, their respective Subsidiaries or their
respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Securities or the Subsidiary
Guarantees, as the case may be, or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder 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 and the
Subsidiary Guarantees.
18. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
19. 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).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused 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.
X-0
00
00. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will be obligated to consummate an exchange offer pursuant to which
the Holder of this Security shall have the right to exchange this Security for a
8 3/8% Senior Subordinated Note due 2008 of the Company which has been
registered under the Securities Act, in like principal amount and having terms
identical in all material respects to the Initial Securities. The Holders shall
be entitled to receive certain liquidated damages payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
22. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security and any Guarantee hereof without regard to principles of conflicts of
laws to the extent that the application of the laws of another jurisdiction
would be required thereby.
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[FORM OF SUBSIDIARY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
Each undersigned Guarantor (as defined in the Indenture referred
to in the Security upon which this notation is endorsed) hereby unconditionally
guarantees on a senior subordinated basis (such guaranty by such Guarantor being
referred to herein as the "Subsidiary Guarantee"), jointly and severally, the
due and punctual payment of the principal of, premium, if any, and interest on
the Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest on
the Securities, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms set
forth in Article Eleven of the Indenture.
The obligations of each undersigned Guarantor to the Holders of
Securities and to the Trustee pursuant to its Guarantee and the Indenture are
expressly set forth in, and are expressly subordinated and subject in right of
payment to, the prior payment in full of all Guarantor Senior Indebtedness (as
defined in the Indenture) of such Guarantor, to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of such Guarantee therein
made.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
INDIANA BROADCASTING, LLC
WAVY BROADCASTING, LLC
WOOD LICENSE CO., LLC
WIVB BROADCASTING, LLC,
as Guarantors
By: LIN Television Corporation,
its Managing Member
By:
-------------------------------
Name:
Title:
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XXX XXXXXXXXXX XX XXXXX, L.P.,
as Guarantor
By: LIN Television of Texas, Inc.,
its General Partner
By:
--------------------------------
Name:
Title:
AIRWAVES, INC.
BUFFALO BROADCASTING CO. INC.
BUFFALO MANAGEMENT ENTERPRISES
CO. INC.
KXAN, INC.
KXTX HOLDINGS, INC.
LINBENCO, INC.
LIN SPORTS, INC.
LIN TELEVISION OF TEXAS, INC.
LWWI BROADCASTING INC.
NORTH TEXAS BROADCASTING
CORPORATION
WAND TELEVISION, INC.
WOOD TELEVISION, INC.
WTNH BROADCASTING, INC.,
as Guarantors
By:
--------------------------------
Name:
Title:
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ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
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:
------------------- -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
----------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
94
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.08 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.08 or Section 4.15 of the Indenture, state
the amount: $_____________
Dated: Your Signature:
----------------- -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
----------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
95
EXHIBIT B
[FORM OF SERIES B SECURITY]
LIN ACQUISITION COMPANY
8 3/8% Senior Subordinated Note due 2008, Series B
CUSIP No.:[ ]
No. [ ] $[ ]
LIN ACQUISITION COMPANY, a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received, promise to
pay to [ ] or registered assigns the principal sum of [ ] Dollars, on March 1,
2008.
Interest Payment Dates: March 1 and September 1, commencing on
September 1, 1998.
Interest Record Dates: February 15 and August 15.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
LIN ACQUISITION COMPANY
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Dated:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 8 3/8% Senior Subordinated Notes due 2008,
Series B, described in the within-mentioned Indenture.
Dated:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
---------------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
LIN ACQUISITION COMPANY
8 3/8% Senior Subordinated Note due 2008, Series B
1. Interest.
LIN ACQUISITION COMPANY promises to pay interest on the principal
amount of this Security at the rate per annum shown above. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from March 3, 1998. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing on
September 1, 1998. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by the Securities.
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 the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are canceled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
March 3, 1998 (the "Indenture"), by and among the Company, the Guarantors named
therein and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Company designated as its 8 3/8% Senior
Subordinated Notes due 2008, Series B limited in aggregate principal amount to
$300,000,000, which may be issued under the Indenture. The Securities include
the Initial Securities (as defined in the Indenture), the Private Exchange
Securities (as defined in the Indenture) and the Unrestricted Securities (as
defined in the Indenture). All Securities issued
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under the Indenture are treated as a single class of securities under the
Indenture. 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 of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture (except as otherwise indicated in the Indenture) until such time as
the Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Securities are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of them. The
Securities are general unsecured obligations of the Company. The Securities are
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company to the extent and in the manner provided in the Indenture. Each
Holder, by accepting a Security, agrees to such subordination, authorizes the
Trustee to give effect to such subordination and appoints the Trustee as
attorney-in-fact for such purpose.
5. Optional Redemption.
(a) The Securities will be redeemable at the option of the
Company, in whole or in part, at any time on or after March 1, 2003, at the
redemption prices (expressed as a percentage of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Interest Record Date
to receive interest due on the relevant Interest Payment Date) if redeemed
during the 12-month period commencing on March 1 of the years indicated below:
Year Percentage
---- ----------
2003 104.188%
2004 102.792%
2005 101.396%
2006 and thereafter 100.000%
(b) Prior to March 1, 2001, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Securities at a redemption price equal to 108.375% of
the principal amount thereof plus accrued and unpaid interest to the redemption
date; provided, however, that after any such redemption, at least 65% of the
aggregate principal amount of the Securities originally issued would remain
outstanding immediately after giving effect to such redemption. Any such
redemption will be required to occur on or prior to the date that is one year
after the receipt by the Company of the proceeds of an Equity Offering. The
Company shall effect such redemption on a pro rata basis.
(c) Prior to March 1, 2003, upon the occurrence of a Change of
Control, the Company will have the option to redeem the Securities in whole but
not in part (a "Change of Control Redemption") at a redemption price equal to
100% of the principal amount thereof, plus accrued and unpaid interest to the
redemption date, plus the Applicable Premium. In order to effect a Change of
Control Redemption, the Company must send a notice to each Holder, which notice
shall govern the terms of the Change of Control Redemption. Such notice must
comply with the provisions of Section 3.03 of the Indenture; provided, however,
that such notice must be mailed to Holders within 30 days following the date the
Change of Control occurred (the "Change of Control Redemption Date") and state
that the Company is effecting a Change of Control Redemption in lieu of a Change
of Control Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the principal
amount of such Security and (ii) the excess of (A) the present value at such
time of (1) the redemption price of such Security at March 1, 2003 (such
redemption price being described in paragraph (a) above) plus (2) all
semi-annual payments of interest through March 1, 2003 com-
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99
puted using a discount rate equal to the Treasury Rate plus 75 basis points over
(B) the principal amount of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury Securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior to
the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Change of Control Redemption Date to March
1, 2003; provided, however, that if the period from the Change of Control
Redemption Date to March 1, 2003 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury Securities for which such yields are given except that if the period
from the Change of Control Redemption Date to March 1, 2003 is less than one
year, the weekly average yield on actually traded United States Treasury
Securities adjusted to a constant maturity of one year shall be used.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
7. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall, within 30
days after the Change of Control Date, offer to purchase all Securities then
outstanding at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the date of
such purchase (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date).
8. Limitation on Disposition of Assets.
The Company is, subject to certain conditions and certain
exceptions, obligated to offer to purchase the Securities at a purchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of such purchase (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date) with the proceeds of certain asset dispositions.
B-5
100
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
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 certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner
of it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at their written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Subsidiary Guarantees,
except for certain provisions thereof, and may be discharged from obligations to
comply with certain covenants contained in the Indenture, the Securities and the
Subsidiary Guarantees, in each case upon satisfaction of certain conditions
specified in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities
(including the Subsidiary Guarantees) 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 with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture, the Securities and the Subsidiary Guarantees
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities
or comply with any requirements of the SEC in connection with the qualification
of the Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to sell assets, to permit
restrictions on dividends and other payments by Subsidiaries to the Company, to
consolidate, merge or sell all or substantially all of its assets and to engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must report annually to the
Trustee on compliance with such limitations.
B-6
101
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 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, the Securities or the Subsidiary Guarantees
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Subsidiary Guarantees unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
16. Trustee Dealings with Company and Guarantors.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Guarantors, their respective Subsidiaries or their
respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Securities or the Subsidiary
Guarantees, as the case may be, or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder 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 and the
Subsidiary Guarantees.
18. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
19. 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).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused 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.
B-7
102
21. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security and any Guarantee hereof without regard to principles of conflicts of
laws to the extent that the application of the laws of another jurisdiction
would be required thereby.
B-8
103
[FORM OF SUBSIDIARY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
Each undersigned Guarantor (as defined in the Indenture referred
to in the Security upon which this notation is endorsed) hereby unconditionally
guarantees on a senior subordinated basis (such guaranty by such Guarantor being
referred to herein as the "Subsidiary Guarantee"), jointly and severally, the
due and punctual payment of the principal of, premium, if any, and interest on
the Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest on
the Securities, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms set
forth in Article Eleven of the Indenture.
The obligations of each undersigned Guarantor to the Holders of
Securities and to the Trustee pursuant to its Guarantee and the Indenture are
expressly set forth in, and are expressly subordinated and subject in right of
payment to, the prior payment in full of all Guarantor Senior Indebtedness (as
defined in the Indenture) of such Guarantor, to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of such Guarantee therein
made.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
INDIANA BROADCASTING, LLC
WAVY BROADCASTING, LLC
WOOD LICENSE CO., LLC
WIVB BROADCASTING, LLC,
as Guarantors
By: LIN Television Corporation,
its Managing Member
By:
------------------------------------
Name:
Title:
B-9
000
XXX XXXXXXXXXX XX XXXXX, L.P.,
as Guarantor
By: LIN Television of Texas, Inc.,
its General Partner
By:
------------------------------------
Name:
Title:
AIRWAVES, INC.
BUFFALO BROADCASTING CO. INC.
BUFFALO MANAGEMENT ENTERPRISES
CO. INC.
KXAN, INC.
KXTX HOLDINGS, INC.
LINBENCO, INC.
LIN SPORTS, INC.
LIN TELEVISION OF TEXAS, INC.
LWWI BROADCASTING INC.
NORTH TEXAS BROADCASTING
CORPORATION
WAND TELEVISION, INC.
WOOD TELEVISION, INC.
WTNH BROADCASTING, INC.,
as Guarantors
By:
------------------------------------
Name:
Title:
B-10
105
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
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:
------------------------ -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
----------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
106
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.08 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.08 or Section 4.15 of the Indenture, state
the amount: $_____________
Dated: Signed:
------------------------ -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
----------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
107
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
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108
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 3/8% Senior Subordinated Notes due 2008
(the "Securities") of LIN Acquisition Company
This Certificate relates to $_______ principal amount of
Securities held in the form of* ___ a beneficial interest in a Global Security
or* _______ Physical Securities by ______ (the "Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Physical Security or Physical Securities in definitive, registered
form of authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
[ ] has requested that the Registrar by written order exchange or
register the transfer of a Physical Security or Physical Securities.
[ ] In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 2.16 of such Indenture,
and that the transfer of the Securities does not require registration under the
Securities Act of 1933, as amended (the "Act"), because*:
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] 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 Act) which delivers a certificate to the Trustee in the form of
Exhibit E to the Indenture.
[ ] Such Security is being transferred in reliance on Rule 144 under
the Act.
[ ] Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act other
than Rule 144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of Counsel to the effect that such transfer
does not require registration under the Securities Act accompanies this
certification.]
-----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
[Authorized Signatory]
Date:
----------------------
*Check applicable box.
D-1
109
EXHIBIT E
Form of Transferee Letter of Representation
LIN ACQUISITION COMPANY
One Richmond Square, Suite 230E
Providence, Rhode Island 02906
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________
principal amount of the 8 3/8% Senior Subordinated Notes due 2008 (the "Notes")
of LIN ACQUISITION COMPANY (the "Company"). Upon transfer, the Notes would be
registered in the name of the new beneficial owner as follows:
Name:
----------------------------------
Address:
------------------------------
Taxpayer ID Number:
-------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such
an institutional "accredited investor," in each case in a minimum principal
amount of Notes of $250,000, (e) pursuant to offers and sales that occur outside
the United States within the meaning of Regulation S under the Securities Act or
(f) pursuant to any other available exemption from the registration requirements
of the Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such investor
account or accounts be at all times within
E-1
110
our or their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. If any resale or other transfer of the
Notes is proposed to be made pursuant to clause (d) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Notes pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certificates and/or other
information satisfactory to the Company and the Trustee.
Dated: TRANSFEREE:
---------------------- -------------------------
By:
---------------------------------
E-2
111
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: LIN ACQUISITION COMPANY (the "Company")
8 3/8% Senior Subordinated Notes due 2008, Series A and
8 3/8% Senior Subordinated Notes due 2008, Series B (collectively,
the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
F-1
112
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
[Authorized Signatory]
F-2
