EXHIBIT 4.9
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BENEDEK COMMUNICATIONS CORPORATION
Issuer
IBJ XXXXXXXX BANK & TRUST COMPANY
Trustee
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$[ ]
11 1/2% Exchange Debentures Due 2008
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EXCHANGE INDENTURE
Dated as of , 199
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Definitions........................................................................19
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................20
SECTION 1.04. Rules of Construction....................................................................20
ARTICLE II
The Securities
SECTION 2.01. Form and Dating..........................................................................21
SECTION 2.02. Execution and Authentication.............................................................23
SECTION 2.03. Registrar and Paying Agent...............................................................24
SECTION 2.04. Paying Agent to Hold Money in Trust......................................................24
SECTION 2.05. Securityholder Lists.....................................................................24
SECTION 2.06. Transfer and Exchange....................................................................25
SECTION 2.07. Replacement Securities...................................................................31
SECTION 2.08. Outstanding Securities...................................................................31
SECTION 2.09. Temporary Securities.....................................................................32
SECTION 2.10. Cancellation.............................................................................33
SECTION 2.11. Defaulted Interest.......................................................................33
SECTION 2.12. CUSIP Numbers............................................................................33
SECTION 2.13. Computation of Interest..................................................................33
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee.......................................................................34
SECTION 3.02. Selection of Securities to Be Redeemed...................................................34
SECTION 3.03. Notice of Redemption.....................................................................34
SECTION 3.04. Effect of Notice of Redemption...........................................................35
SECTION 3.05. Deposit of Redemption Price..............................................................35
SECTION 3.06. Securities Redeemed in Part..............................................................35
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities....................................................................36
SECTION 4.02. SEC Reports..............................................................................36
ii
SECTION 4.03. Limitation on Debt.......................................................................36
SECTION 4.04. Limitation on Restricted Payments........................................................38
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries..................................................................41
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.......................................42
SECTION 4.07. Limitation on Transactions with Affiliates...............................................45
SECTION 4.08. Change of Control........................................................................46
SECTION 4.09. Limitation on Liens......................................................................48
SECTION 4.10. Limitation on Sale/Leaseback Transactions................................................48
SECTION 4.11. Compliance Certificate...................................................................48
SECTION 4.12. Further Instruments and Acts.............................................................49
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets................................................49
SECTION 5.02. When Benedek Broadcasting May Merge or Transfer Assets...................................50
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default........................................................................50
SECTION 6.02. Acceleration.............................................................................52
SECTION 6.03. Other Remedies...........................................................................53
SECTION 6.04. Waiver of Past Defaults..................................................................53
SECTION 6.05. Control by Majority......................................................................54
SECTION 6.06. Limitation on Suits......................................................................54
SECTION 6.07. Rights of Holders to Receive Payment.....................................................54
SECTION 6.08. Collection Suit by Trustee...............................................................54
SECTION 6.09. Trustee May File Proofs of Claim.........................................................55
SECTION 6.10. Priorities...............................................................................55
SECTION 6.11. Undertaking for Costs....................................................................55
SECTION 6.12. Waiver of Stay or Extension Laws.........................................................56
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee........................................................................56
SECTION 7.02. Rights of Trustee........................................................................57
SECTION 7.03. Individual Rights of Trustee.............................................................58
SECTION 7.04. Trustee's Disclaimer.....................................................................58
SECTION 7.05. Notice of Defaults.......................................................................58
SECTION 7.06. Reports by Trustee to Holders............................................................58
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SECTION 7.07. Compensation and Indemnity...............................................................59
SECTION 7.08. Replacement of Trustee...................................................................59
SECTION 7.09. Successor Trustee by Merger..............................................................60
SECTION 7.10. Eligibility; Disqualification............................................................61
SECTION 7.11. Preferential Collection of Claims Against Company........................................61
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.........................................61
SECTION 8.02. Conditions to Defeasance.................................................................62
SECTION 8.03. Application of Trust Money...............................................................63
SECTION 8.04. Repayment to Company.....................................................................63
SECTION 8.05. Indemnity for Government Obligations.....................................................64
SECTION 8.06. Reinstatement............................................................................64
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders...............................................................64
SECTION 9.02. With Consent of Holders..................................................................65
SECTION 9.03. Compliance with Trust Indenture Act......................................................66
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................66
SECTION 9.05. Notation on or Exchange of Securities....................................................67
SECTION 9.06. Trustee to Sign Amendments...............................................................67
SECTION 9.07. Payment for Consent......................................................................67
ARTICLE X
Subordination
SECTION 10.01. Agreement to Subordinate................................................................67
SECTION 10.02. Liquidation, Dissolution, Bankruptcy....................................................68
SECTION 10.03. Default on Senior Debt..................................................................68
SECTION 10.04. Acceleration of Payment of Securities...................................................69
SECTION 10.05. When Distribution Must Be Paid Over.....................................................69
SECTION 10.06. Subrogation.............................................................................69
SECTION 10.07. Relative Rights.........................................................................70
SECTION 10.08. Subordination May Not Be Impaired by Company or Holders of
Senior Debt...........................................................................70
SECTION 10.09. Rights of Trustee and Paying Agent......................................................71
SECTION 10.10. Distribution or Notice of Representative................................................71
SECTION 10.11. Article 10 Not to Prevent Events of Default or Limit Right to
Accelerate...........................................................................71
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SECTION 10.12. Trustee Entitled to Rely................................................................71
SECTION 10.13. Trustee to Effectuate Subordination.....................................................72
SECTION 10.14. Trustee Not Fiduciary for Holders of Senior Debt........................................72
SECTION 10.15. Reliance by Holders of Senior Debt on Subordination
Provisions....................................................................72
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls............................................................73
SECTION 11.02. Notices.................................................................................73
SECTION 11.03. Communication by Holders with Other Holders.............................................73
SECTION 11.04. Certificate and Opinion as to Conditions Precedent......................................74
SECTION 11.05. Statements Required in Certificate or Opinion...........................................74
SECTION 11.06. When Securities Disregarded.............................................................74
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar............................................75
SECTION 11.08. Legal Holidays..........................................................................75
SECTION 11.09. Governing Law...........................................................................75
SECTION 11.10. No Recourse Against Others..............................................................75
SECTION 11.11. Successors..............................................................................75
SECTION 11.12. Multiple Originals......................................................................75
SECTION 11.13. Table of Contents; Headings.............................................................75
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
v
CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1) ........................................... 7.10
(a)(2) ........................................... 7.10
(a)(3) ........................................... N.A.
(a)(4) ........................................... N.A.
(a)(5) ........................................... 7.10
(b) ........................................... 7.08; 7.10
(c) ........................................... N.A.
311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... N.A.
312(a) ........................................... 2.05
(b) ........................................... 12.03
(c) ........................................... 12.03
313(a) ........................................... 7.06
(b)(1) ........................................... 7.06
(b)(2) ........................................... 7.06
(c) ........................................... 12.02
(d) ........................................... 7.06
314(a) ........................................... 4.02; 4.10; 10.02
(b) ........................................... N.A.
(c)(1) ........................................... 12.04
(c)(2) ........................................... 12.04
(c)(3) ........................................... N.A.
(d) ........................................... N.A.
(e) ........................................... 12.05
(f) ........................................... 4.10
315(a) ........................................... 7.01
(b) ........................................... 7.05; 12.02
(c) ........................................... 7.01
(d) ........................................... 7.01
(e) ........................................... 6.11
316(a)(last sentence)..................................... 12.06
(a)(1)(A) ............................................... 6.05
(a)(1)(B) ............................................... 6.04
(a)(2) ........................................... N.A.
(b) ........................................... 6.07
(c) ........................................... N.A.
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE dated as of , 199 , between BENEDEK COMMUNICATIONS
CORPORATION, a Delaware corporation (the "Company"), and IBJ
XXXXXXXX BANK & TRUST COMPANY, a New York banking corporation
(the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 11
1/2% Exchange Debentures Due 2008 (the "Initial Securities") and, if and when
issued in exchange for Initial Securities, the Company's 11 1/2% Exchange
Debentures Series A Due 2008 (the "Exchange Securities" and, together with the
Initial Securities, the "Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Station" means any Television Station acquired by
the Company after the Issue Date.
"Acquisitions" means the acquisition by Beredek Broadcasting
of substantially all the television broadcast assets of Xxxxxxxx Communications,
Inc. and all the capital stock of Xxxxxxxxx Broadcasting Corporation and its
wholly owned subsidiaries.
"Affiliate" of any specified person means (i) any other person
which, directly or indirectly, is in control of, is controlled by or is under
common control with such specified person or (ii) any other person who is a
director or officer (A) of such specified person, (B) of any subsidiary of such
specified person or (C) of any person described in clause (i) above. For
purposes of Section 4.04, Section 4.06 and Section 4.07, (a) control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise and (b)
beneficial ownership of 5% or more of the voting common equity (on a fully
diluted basis) or warrants to purchase such equity (whether or not currently
exercisable) of a person shall be deemed to be control of such person; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
shares of Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its Subsidiaries
(including any disposition by means of a merger, consolidation or similar
transaction) other
2
than (i) a disposition by a Subsidiary to the Company or by the Company or a
Subsidiary to a Wholly Owned Subsidiary, (ii) a disposition of property or
assets at fair market value in the ordinary course of business, (iii) a
disposition of obsolete assets in the ordinary course of business, (iv) for
purposes of Section 4.06 only, a disposition subject to Section 4.04, (v) a
disposition subject to Section 5.01 (except to the extent the Company disposes
of substantially all (but not all) of its assets, in which event the assets not
so disposed of shall be deemed as having been sold by the Company); (vi) a
disposition pursuant to the terms of the Company Pledge Agreement delivered in
connection with the Senior Secured Notes; or (vii) a disposition by the Company
in which and to the extent the Company receives as consideration Capital Stock
of a person engaged in, or assets that will be used in, the business of the
Company existing on the Issue Date or in businesses reasonably related thereto,
as determined by the Board of Directors of the Company the determination of
which will be conclusive and evidenced by a resolution of the Board of Directors
at the time of such disposition.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Debt, the quotient obtained by dividing (i) the sum of the
products of (a) the numbers of years from the date of determination to the dates
of each successive scheduled principal payment or redemption or similar payment
with respect to such Debt multiplied by (b) the amount of such payment, by (ii)
the sum of all such payments.
"Bank Credit Agreement" means the Credit Agreement, dated as
of December 17, 1997, as amended, among the Company, Benedek Broadcasting, as
borrower, the lenders referred to therein and Bankers Trust Company, as agent,
and all promissory notes, guarantees, security agreements and documents, deeds
of trust, mortgages, letters of credit and other instruments, agreements and
documents executed pursuant thereto or in connection therewith, in each case as
the same may be amended, supplemented, restated, renewed, refinanced, replaced
or otherwise modified (in whole or in part and without limitation as to amount,
terms, conditions, covenants or other provisions) from time to time.
"Bank Debt" means all Senior Debt outstanding under the Bank
Credit Agreement.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
3
"Benedek Broadcasting" means Benedek Broadcasting Corporation,
a Delaware corporation and a subsidiary of the Company and any successor
company.
"BLC" means Benedek License Corporation, a Delaware
corporation and a subsidiary of Benedek Broadcasting and any successor company.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such person prepared in accordance with generally
accepted accounting principles; the amount of such obligation shall be the
capitalized amount thereof, determined in accordance with generally accepted
accounting principles; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such person,
including any Preferred Stock, but excluding any debt securities convertible
into or exchangeable for such equity.
"Cash Flow Leverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount outstanding of all Debt of the
Company and the Restricted Subsidiaries (including any Debt issued under Section
4.03(b)) at the end of the most recent fiscal quarter ending at least 45 days
prior to the date of determination to (ii) Operating Cash Flow for the four
fiscal quarters ending on the last day of such fiscal quarter; provided,
however, that (1) if the Company or any Restricted Subsidiary has Issued any
Debt since the beginning of such period that remains outstanding or if the
transaction giving rise to the need to calculate the Cash Flow Leverage Ratio is
an Issuance of Debt, or both, Debt as of such date and Operating Cash Flow
(including Consolidated Interest Expense) for such period shall be calculated
after giving effect on a pro forma basis to such Debt (in the case of Operating
Cash Flow, as if such Debt had been Issued on the first day of such period) and
the discharge of any other Debt repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Debt (in the case of Operating Cash
Flow, as if such discharge had occurred on the first day of such period), (2) if
since the beginning of such period the Company or any Restricted Subsidiary
shall have made any Asset Disposition, (A) the Operating Cash Flow for such
period shall be reduced by an amount equal to the Operating Cash Flow (if
positive) directly attributable to the assets which are the subject of such
Asset Disposition for such
4
period, or increased by an amount equal to the Operating Cash Flow (if
negative), directly attributable thereto for such period (including an
adjustment for Consolidated Interest Expense directly attributable to any Debt
(the "Discharged Debt") of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection with such Asset
Dispositions for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period directly
attributable to the Discharged Debt of such Restricted Subsidiary)) and (B) Debt
for such period shall be reduced by an amount equal to the Discharged Debt, (3)
if since the beginning of such period the Company or any Restricted Subsidiary
(by merger or otherwise) shall have made an Investment in any Restricted
Subsidiary (or any person which becomes a Restricted Subsidiary) or an
acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business,
Operating Cash Flow for such period shall be calculated after giving pro forma
effect thereto (including the Issuance of any Debt) as if such Investment or
acquisition occurred on the first day of such period and (4) if since the
beginning of such period any person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Disposition or any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (2) or (3) above if made by the Company or a Restricted
Subsidiary during such period, Operating Cash Flow (including Consolidated
Interest Expense) for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition occurred
on the first day of such period. For purposes of this definition, whenever pro
forma effect is to be given to an acquisition of assets, the amount of income or
earnings relating thereto, and the amount of Consolidated Interest Expense
associated with any Debt Issued in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Company. If any Debt bears a floating rate of interest
and is being given pro forma effect, the interest on such Debt shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Protection Agreement applicable to such Debt if such Interest Rate Protection
Agreement has a remaining term in excess of 12 months).
"Change of Control" means the occurrence of any of the
following events:
(i) prior to the first public offering of common stock of the
Company, the Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a majority in the aggregate of the total voting power of
the Voting Stock of the Company, whether as a result of Issuance of
securities of the Company, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect transfer of
securities or otherwise
5
(for purposes of this clause (i) and clause (ii) below, the Permitted
Holders shall be deemed to beneficially own any Voting Stock of a
corporation (the "specified corporation") held by any other corporation
(the "parent corporation") so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the
aggregate a majority of the voting power of the Voting Stock of the
parent corporation);
(ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in clause (i) above,
except that such person shall be deemed to have "beneficial ownership"
of all shares that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of
the Voting Stock of the Company; provided, however, that the Permitted
Holders "beneficially own" (as defined in clause (i) above), directly
or indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other person and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors
(for the purposes of this clause (ii), such other person shall be
deemed to beneficially own any Voting Stock of a specified corporation
held by a parent corporation, if such other person is the beneficial
owner (as defined in this clause (ii)), directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such parent
corporation and the Permitted Holders "beneficially own" (as defined in
clause (i) above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of
the board of directors of such parent corporation); or
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of two-thirds of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors of the Company then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
6
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Company Pledge Agreement" means the Amended and Restated
Company Pledge Agreement, dated as of December 17, 1997, between the Company and
Bankers Trust Company.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such interest expense, (i)
interest expense attributable to capital leases, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi)
interest actually paid by the Company or any such Restricted Subsidiary under
any Guarantee of Debt or other obligation of any other person, (vii) net costs
associated with Hedging Obligations (including amortization of fees), (viii)
Preferred Stock dividends in respect of all Preferred Stock of Restricted
Subsidiaries and Redeemable Stock of the Company held by persons other than the
Company or a Wholly Owned Subsidiary and (ix) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any person (other than
the Company) in connection with loans incurred by such plan or trust to purchase
newly issued or treasury shares of the Company.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
(i) any net income of any person if such person is not a
Restricted Subsidiary, except that (A) the Company's equity in the net
income of any such person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (B)
the Company's equity in a net loss of any such person for such period
shall be included in determining such Consolidated Net Income;
(ii) any net income of any person acquired by the Company or a
Restricted Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
7
(iii) any net income of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that (A) the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period to the
Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
to another Restricted Subsidiary, to the limitation contained in this
clause) and (B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(iv) any gain (but not loss) realized upon the sale or other
disposition of any property, plant or equipment of the Company or its
consolidated subsidiaries (including pursuant to any Sale/Leaseback
Transaction) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss) realized upon the sale
or other disposition of any Capital Stock of any person; and
(v) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section
4.04 only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from a Non-Recourse
Affiliate to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments
permitted under such covenant pursuant to Section 4.04(b)(vi).
"Consolidated Net Worth" of any person means the total of the
amounts shown on the balance sheet of such person and its consolidated
subsidiaries, determined on a consolidated basis in accordance with generally
accepted accounting principles, as of the end of the most recent fiscal quarter
of such person ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of such person plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit, (B) any amounts attributable
to Redeemable Stock and (C) any amounts attributable to Exchangeable Stock.
"Debt" of any person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such person for money borrowed and (B) indebtedness
evidenced by notes, debentures,
8
bonds or other similar instruments for the payment of which such person
is responsible or liable;
(ii) all Capital Lease Obligations and all Attributable Debt
of such person;
(iii) all obligations of such person Issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such person and all obligations of such person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(iv) all obligations of such person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i)
through (iii) above) entered into in the ordinary course of business of
such person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such person of a
demand for reimbursement following payment on the letter of credit);
(v) the amount of all obligations of such person with respect
to the redemption, repayment or other repurchase of, in the case of a
Subsidiary, any Preferred Stock and, in the case of any other person,
any Redeemable Stock (but excluding any accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other persons and all dividends of other persons for the
payment of which, in either case, such person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
any Guarantees of such obligations and dividends; and
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other persons secured by any Lien on any property or
asset of such person (whether or not such obligation is assumed by such
person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
The amount of Debt of any person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
9
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Designated Senior Debt" means (i) the Bank Debt and the
Senior Secured Notes and (ii) any other Senior Debt 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 $25,000,000 and is specifically designated by the Company
in the instrument evidencing or governing such Senior Debt as "Designated Senior
Debt" for purposes of this Indenture.
"EBITDA" for any period means the Consolidated Net Income for
such period (but without giving effect to adjustments, accruals, deductions or
entries resulting from purchase accounting, extraordinary losses or gains and
any gains or losses from any Asset Dispositions), plus the following to the
extent deducted in calculating such Consolidated Net Income: (i) income tax
expense, (ii) Consolidated Interest Expense, (iii) depreciation expense, (iv)
amortization expense (including the amortization of Program Obligations) and (v)
all other noncash charges deducted in the calculation of such Consolidated Net
Income (but excluding (a) any noncash charges related to the items described in
clauses (i) through (v) of the definition of "Consolidated Net Income" and (b)
any noncash charges to the extent that they require an accrual of or a reserve
for cash disbursements for any future period), and minus, without duplication,
all noncash items (but excluding revenue from barter transactions) that
increased such Consolidated Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" means the date on which the Securities are
exchanged for the Exchangeable Preferred Stock.
"Exchange Securities" means the 11 1/2% Exchange Debentures
Series A Due 2008 to be issued pursuant to this Indenture in connection with the
offer to exchange registered Securities for the Initial Securities that may be
made by the Company pursuant to the Registration Rights Agreement.
"Exchangeable Preferred Stock" means the Company's 11 1/2%
Senior Exchangeable Preferred Stock outstanding on the date of this Indenture.
10
"Exchangeable Stock" means any Capital Stock which is
exchangeable or convertible into another security (other than Capital Stock of
the Company which is neither Exchangeable Stock nor Redeemable Stock).
"Existing Station" means (i) each of the 23 Television
Stations owned by the Company as of the Issue Date and (ii) each other
Television Station acquired by the Company after the Issue Date and the License
for which is owned by BLC.
"Guarantee" means any obligation, contingent or otherwise, of
any person directly or indirectly guaranteeing any Debt or other obligation of
any person and any obligation, direct or indirect, contingent or otherwise, of
such person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or other obligation of such person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any person means the obligations of
such person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures contract
or other similar agreement or arrangement designed to protect such person
against changes in interest rates or foreign exchange rates.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
"Investment" in any person means any loan or advance to, any
Guarantee of, any acquisition of any Capital Stock, equity interest, obligation
or other security of, or capital contribution or other investment in, such
person. Investments shall exclude advances to customers and suppliers in the
ordinary course of business.
11
"Issue" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Debt or Capital Stock of a person
existing at the time such person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be issued by such
Subsidiary at the time it becomes a Subsidiary; and the term "Issuance" has a
corresponding meaning. For purposes of Section 4.03, if any Debt Issued by a
Non-Recourse Subsidiary thereafter ceases to be Non-Recourse Debt of a
Non-Recourse Subsidiary, then such event shall be deemed for the purpose of such
Section to constitute the Issuance of such Debt by the issuer thereof.
"Issue Date" means the date on which the Exchangeable
Preferred Stock was originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York.
"License" means, with respect to any Television Station, any
and all licenses and authorizations issued by the Federal Communications
Commission with respect to such Television Station.
"Lien" means any mortgage, pledge, security interest,
conditional sale or other title retention agreement or other similar lien.
"Maximum Amount" as of any date of determination means, with
respect to any Acquired Station, the product of (i) the Operating Cash Flow of
such Acquired Station for the four most recent fiscal quarters ending at least
45 days prior to such date of determination and (ii) the number 5.0; provided,
however, that if such Acquired Station is acquired by the Company in connection
with an Asset Disposition of an Existing Station, the amount in clause (i) above
shall be reduced by the Operating Cash Flow for such period of such Existing
Station.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring person of Debt or other obligations
relating to such properties or assets or received in any other noncash form)
therefrom, in each case net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under
generally accepted accounting principles, as a consequence of such Asset
Disposition, (ii) all payments made on any Debt which is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any lien upon
or other security agreement of any kind with respect to such assets, or which
must by its
12
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition and (iv) the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with generally accepted accounting
principles, against any liabilities associated with the assets disposed of in
such Asset Disposition and retained by the Company or any Subsidiary after such
Asset Disposition.
"Net Cash Proceeds" with respect to any Issuance or sale of
Capital Stock, means the cash proceeds of such Issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such Issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-Convertible Common Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible common
stock of such corporation; provided, however, that Non-Convertible Common Stock
shall not include any Redeemable Stock or Exchangeable Stock or, in the case of
the Company, any Senior Stock or Parity Stock.
"Non-Recourse Affiliate" means a Non-Recourse Subsidiary or
any other Affiliate of the Company or a Restricted Subsidiary which (i) has not
acquired any assets (other than cash) directly or indirectly from the Company or
any Restricted Subsidiary, (ii) only owns properties acquired after the Issue
Date and (iii) has no Debt other than Non-Recourse Debt.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as
to which neither the Company nor its Restricted Subsidiaries (A) provide credit
support (including any undertaking, agreement or instrument which would
constitute Debt), (B) is directly or indirectly liable or (C) constitute the
lender and (ii) no default with respect to which (including any rights which the
holders thereof may have to take enforcement action against a Non-Recourse
Affiliate) would permit (upon notice, lapse of time or both) any holder of any
other Debt of the Company or its Restricted Subsidiaries to declare a default on
such other Debt or cause the payment thereof to be accelerated or payable prior
to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary which (i) has not
acquired any assets (other than cash) directly or indirectly from the Company or
any Restricted Subsidiary, (ii) only owns properties acquired after the Issue
Date and (iii) has no Debt other than Non-Recourse Debt.
13
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Operating Cash Flow" for any period means EBITDA for such
period less Program Obligation Payments for such period; provided, however,
that, when used in the definition of "Maximum Amount" with respect to a
Television Station, all references to the Company and Restricted Subsidiaries
and consolidated subsidiaries used in the definitions of "EBITDA" and "Program
Obligation Payments" and the definitions used therein shall be deemed to refer
to such Television Station.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Parent" means any person that beneficially owns, directly or
indirectly, all the Voting Stock of the Company.
"Permitted Acquisition Debt" means Debt of the Company or any
Restricted Subsidiary Issued to finance all or any portion of the cost of the
acquisition of an Acquired Station, where the License for such Acquired Station
is owned by BLC, and Refinancing Debt in respect of Debt; provided, however,
that the aggregate amount of such Permitted Acquisition Debt with respect to any
Acquired Station shall not exceed the Maximum Amount with respect to such
Acquired Station.
"Permitted Holders" shall mean (i) A. Xxxxxxx Xxxxxxx; (ii)
family members or relatives of A. Xxxxxxx Xxxxxxx; (iii) any trusts created for
the benefit of the persons described in clauses (i), (ii) or (iv) of this
paragraph or any trust for the benefit of any trust; (iv) in the event of the
death or incompetence of any person described in clauses (i) or (ii) of this
paragraph such person's estate, executor, administrator, committee or other
personal representative or beneficiaries; or (v) any Affiliate of A. Xxxxxxx
Xxxxxxx.
"Permitted Investments" shall mean (i) investments in direct
obligations of the United States of America maturing within 90 days of the date
of acquisition thereof, (ii) investments in certificates of deposit maturing
within 90 days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States or any state
thereof having capital, surplus and undivided profits aggregating in excess of
$500,000,000, and (iii) investments in commercial paper given the highest rating
by two established national credit rating agencies and maturing not more than 90
days from the date of acquisition thereof.
14
"person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of any debt security means the principal amount of
such debt security plus the premium, if any, payable on such debt security which
is due or overdue or is to become due at the relevant time.
"Program Obligation Payments" means, for any period of
calculation, an amount equal to the aggregate amount paid in cash by or on
behalf of the Company and the Restricted Subsidiaries during such period with
respect to, or on account of, Program Obligations.
"Program Obligations" means the obligations of the Company and
the Restricted Subsidiaries with respect to the acquisition of the right to
broadcast films and other programming material, payable in a form other than
barter.
"Public Equity Offering" means an underwritten public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Redeemable Stock" means any Capital Stock that by its terms
or otherwise is required to be redeemed on or prior to the first anniversary of
the Stated Maturity of the Securities or is redeemable at the option of the
holder thereof at any time on or prior to the first anniversary of the Stated
Maturity of the Securities.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to Issue
indebtedness in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Debt" means Debt that Refinances any Debt of the
Company or any Restricted Subsidiary existing on the Issue Date or Issued in
compliance with this Indenture; provided, however, that (i) such Refinancing
Debt has a Stated Maturity no earlier than the Stated Maturity of the Debt being
Refinanced, (ii) such Refinancing Debt has an Average Life at the time such
Refinancing Debt is Issued that is equal to or greater than the Average Life of
the Debt being Refinanced and (iii) such Refinancing Debt has an aggregate
15
principal amount (or if Issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
Issued with original issue discount, the aggregate accreted value) then
outstanding or committed under the Debt being Refinanced (plus the amount of any
premium or penalty paid, whether pursuant to terms of the instrument governing
such Debt or by reason of any tender premium therefor, and plus the amount of
any expenses incurred by the Company or any Subsidiary in connection with such
Refinancing (including without limitation underwriting discounts or
commissions)); provided further, however, that Refinancing Debt shall not
include (x) Debt of a Subsidiary that Refinances Debt of the Company or (y) Debt
of the Company or a Restricted Subsidiary that Refinances Debt of a Non-Recourse
Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth
in the Registration Rights Agreement.
"Registration Rights Agreement" means the Exchangeable
Preferred Stock Exchange and Registration Rights Agreement, dated as of May 7,
1998, among the Company, TD Securities (USA) Inc. and BT Alex. Xxxxx
Incorporated.
"Representative" means any trustee, agent or representative
(if any) for an issue of Debt of the Company.
"Required Disposition" means the disposition of either WMTV
(TV), serving Madison, Wisconsin, or WIFR-TV, serving Rockford, Illinois, as
such disposition may be required pursuant to an order of the Federal
Communications Commission.
"Restricted Holder" means a Permitted Holder or a person (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act and will be
deemed to include each person included in such person) that owns, directly or
indirectly, 10% or more of the total voting power of the Voting Stock of the
Company; provided, however, that for purposes of this definition a person shall
be deemed to have ownership of all shares (a) that any such person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time and (b) of a corporation held by any other corporation (the
"parent corporation") if such person is the owner, directly or indirectly, of
more than 10% of the total voting power of the Voting Stock of such parent
corporation.
"Restricted Subsidiary" shall mean any Subsidiary that is not
a Non-Recourse Subsidiary.
"Sale/Leaseback Transaction" means any arrangement relating to
a property owned as of the Issue Date whereby the Company or a Restricted
Subsidiary transfers such property to a person and leases it back from such
person.
16
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by the Depository), or any successor person
thereto and shall initially be the Trustee.
"Seller Junior Discount Preferred Stock" means the $45,000,000
Preferred Stock issued by the Company to General Electric Capital Corporation
and Xx. Xxxx Xxxxxxxxx, in connection with the Acquisitions.
"Senior Debt" means (i) all obligations of the Company now or
hereafter existing under the Bank Credit Agreement, including principal of,
premium, and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such post-petition interest is allowed as a claim in such proceeding) on
Debt outstanding under the Bank Credit Agreement, reimbursement obligations of
the Company with respect to any letters of credit outstanding under the Bank
Credit Agreement and any obligations thereunder for fees, expenses and
indemnities and (ii) Debt of the Company, whether outstanding on the Issue Date
or thereafter Issued and accrued and unpaid interest thereon (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not post-filing interest is
allowed in such proceeding) in respect of (A) indebtedness of the Company for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which the Company is responsible or
liable unless, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities; provided, however, that Senior
Debt shall not include (i) any obligation of the Company to any Subsidiary, (ii)
any liability for Federal, state, local or other taxes owed or owing by the
Company, (iii) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities) or (iv) that portion of any Debt which
at the time of Issuance is Issued in violation of this Indenture.
"Senior Secured Notes" means the 11-7/8% Senior Secured Notes
Due 2005 of Benedek Broadcasting.
"Senior Subordinated Debt" means the Securities and any other
Debt of the Company that specifically provides that such Debt 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 Debt or other obligation of the Company which
is not Senior Debt.
17
"Senior Subordinated Discount Notes" means 13-1/4% Senior
Subordinated Discount Notes Due 2006 of the Company.
"Senior Subordinated Discount Note Indenture" means the
Indenture dated as of May 15, 1996 among the Company, Benedek Broadcasting, BLC
and United States Trust Company of New York, as trustee, governing the Senior
Subordinated Discount Notes.
"Shelf Registration Statement" has the meaning given to that
term in the Registration Rights Agreement.
"Significant Subsidiary" means (i) any domestic Subsidiary of
the Company (other than a Non-Recourse Subsidiary) which at the time of
determination either (A) had assets which, as of the date of the Company's most
recent quarterly consolidated balance sheet, constituted at least 3% of the
Company's total assets on a consolidated basis as of such date, or (B) had
revenues for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which constituted at least 3% of the
Company's total revenues on a consolidated basis for such period, (ii) any
foreign Subsidiary of the Company (other than a Non-Recourse Subsidiary) which
at the time of determination either (A) had assets which, as of the date of the
Company's most recent quarterly consolidated balance sheet, constituted at least
5% of the Company's total assets on a consolidated basis as of such date, in
each case determined in accordance with generally accepted accounting
principles, or (B) had revenues for the 12-month period ending on the date of
the Company's most recent quarterly consolidated statement of income which
constituted at least 5% of the Company's total revenues on a consolidated basis
for such period, or (iii) any Subsidiary of the Company (other than a Non-
Recourse Subsidiary) which, if merged with all Defaulting Subsidiaries of the
Company, would at the time of determination either (A) have had assets which, as
of the date of the Company's most recent quarterly consolidated balance sheet,
would have constituted at least 10% of the Company's total assets on a
consolidated basis as of such date or (B) have had revenues for the 12-month
period ending on the date of the Company's most recent quarterly consolidated
statement of income which would have constituted at least 10% of the Company's
total revenues on a consolidated basis for such period (each such determination
being made in accordance with generally accepted accounting principles).
"Defaulting Subsidiary" means any Subsidiary of the Company (other than a
Non-Recourse Subsidiary) with respect to which an event described under clause
(5), (6), (7) or (8) of Section 6.01 has occurred and is continuing.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
18
"Strategic Equity Investor" means any person that is, or is a
controlled Affiliate of, any person that is engaged in the broadcasting
business; provided, however, that "Strategic Equity Investor" shall not include
any Affiliate of the Company.
"Strategic Investment" means a sale by the Company or Parent
of its common stock to one or more Strategic Equity Investors.
"Subordinated Obligation" means any Debt of the Company
(whether outstanding on the date of this Indenture or thereafter Issued) which
is expressly subordinate or junior in right of payment to the Securities.
"Subsidiary" means any corporation, association, partnership,
limited liability company or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) the Company,
(ii) the Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"Television Station" means any group of assets which
constitutes all or substantially all of the assets which would be necessary to
carry on the business of a commercial television broadcast station and which,
when purchased by a single purchaser would (together with any necessary
licenses, authorizations, working capital and operating location) be
substantially sufficient to allow such purchaser to carry on such business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
'SS' 'SS' 77aaa-77bbbb) as in effect on the date of this Indenture, except as
provided in Section 9.03.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.06(g).
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
19
"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 at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Agent Members"................................... 2.01
"Bankruptcy Law".................................. 6.01
"covenant defeasance option"...................... 8.01(b)
"Custodian"....................................... 6.01
"Definitive Securities"........................... 2.01
"Event of Default"................................ 6.01
"Excluded Stock".................................. 4.04(a)(3)(b)
"Global Security"................................. 2.01
"legal defeasance option"......................... 8.01(b)
"Non-Global Purchaser"............................ 2.01
"Offer"........................................... 4.06(b)
"Offer Amount".................................... 4.06(c)(2)
"Offer Period".................................... 4.06(c)(2)
"Paying Agent".................................... 2.03
"Purchase Agreement".............................. 2.01
"Purchase Date"................................... 4.06(c)(1)
"QIB"............................................. 2.01(a)
"Registrar"....................................... 2.03
"Restricted Payment".............................. 4.04
"Rule 144A"....................................... 2.01
20
SECTION 1.03. 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 Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture 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 have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect on the date of this Indenture and all
accounting calculations will be determined in accordance with such
principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured debt shall not be deemed to be subordinate or
junior to secured debt merely by virtue of its nature as unsecured
debt;
21
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with generally accepted accounting principles
and accretion of principal on such security shall be deemed to be the
issuance of Debt; and
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B, which is hereby
incorporated by reference and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in Exhibit A and Exhibit B are part of the
terms of this Indenture.
(a) Global Securities. Initial Securities offered and sold to
a "qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) (a "QIB") in reliance on Rule 144A under the Securities Act ("Rule 144A")
as provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global Securities in definitive, fully registered form
without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit A hereto (each, a "Global Security"),
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depository (or with such other custodian as the Depository may direct), and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. 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 and the Depository or its nominee as hereinafter provided.
22
(b) Book-Entry Provisions. This Section 2.01(b) shall apply
only to the Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such 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 such 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 its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in this
Section or Section 2.06 or 2.09, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery of certificated
Securities. Purchasers of Initial Securities who are not QIBs (referred to
herein as the "Non-Global Purchasers") will receive certificated Initial
Securities bearing the restricted securities legend set forth in Exhibit A
hereto ("Definitive Securities"); provided, however, that upon transfer of such
certificated Initial Securities to a QIB, such certificated Initial Securities
will, unless the Global Security has previously been exchanged, be exchanged for
an interest in a Global Security pursuant to the provisions of Section 2.06.
Definitive Securities will bear the restricted securities legend set forth on
Exhibit A unless removed in accordance with this Section 2.01(c) or Section
2.06(g).
After a transfer of any Initial Securities during the period
of the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to legends on such Initial
Security will cease to apply, the requirements requiring any such Initial
Security issued to certain Holders be issued in global form will cease to apply,
and a certificated Initial Security without legends will be available to the
transferee of the Holder of such Initial Securities upon exchange of such
transferring Holder's certificated Initial Security or directions to transfer
such Holder's interest in the Global Security, as applicable. Upon the
consummation of a Registered Exchange Offer with respect to the Initial
23
Securities pursuant to which Holders of such Initial Securities are offered
Exchange Securities in exchange for their Initial Securities, all requirements
pertaining to such Initial Securities that Initial Securities issued to certain
Holders be issued in global form will cease to apply and certificated Initial
Securities with the restricted securities legend set forth in Exhibit A hereto
will be available to Holders of such Initial Securities that do not exchange
their Initial Securities, and Exchange Securities in certificated form will be
available to Holders that exchange such Initial Securities in such Registered
Exchange Offer.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
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 and deliver: (1) Initial
Securities for original issue in an aggregate principal amount at maturity of
$[ ] and (2) Exchange Securities for issue only in a Registered Exchange Offer,
pursuant to the Registration Rights Agreement, for a like principal amount at
maturity of Initial Securities, in each case upon a written order of the Company
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount at maturity of
Securities outstanding at any time may not exceed the liquidation preference of
the Exchangeable Preferred Stock, plus, without duplication, accumulated and
unpaid dividends, on the Exchange Date (plus any additional Exchange Debentures
issued in lieu or cash interest) except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
24
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms 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, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent to Hold Money in Trust. At least
one Business Day prior to each due date of the principal and interest on any
Security, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Securityholders or the Trustee all
money 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. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
25
SECTION 2.06. Transfer and Exchange. (a) Transfer and Exchange
of Definitive Securities. When Definitive Securities are presented to the
Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, which are being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act or pursuant to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as applicable:
(A) if such Transfer Restricted Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in the form set forth on the
reverse of the Security); or
(B) if such Transfer Restricted Securities are being
transferred to the Company or to a QIB in accordance with Rule
144A under the Securities Act, a certification to that effect
(in the form set forth on the reverse of the Security); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; or (x) to an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring the Securities 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 $100,000 for investment purposes
and not with a view to, or
26
for offer or sale in connection with, any distribution in
violation of the Securities Act; or (y) in reliance on another
exemption from the registration requirements of the Securities
Act: (i) a certification to that effect (in the form set forth
on the reverse of the Security), and (ii) if the Company or
Registrar so requests, evidence reasonably satisfactory to
them as to the compliance with the restrictions set forth in
the legend set forth in Section 2.06(g)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, certification, in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred to a QIB
in accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Trustee to
make, or to direct the Securities Custodian to make, an adjustment on
its books and records with respect to such Global Security to reflect
an increase in the aggregate principal amount of the Securities
represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for
a Definitive Security. (i) Any person having a beneficial interest in a Global
Security that is being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to clause (A), (B)
or (C) below may upon request, and if accompanied by the
27
information specified below, exchange such beneficial interest for a Definitive
Security of the same aggregate principal amount. Upon receipt by the Trustee 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 in a Transfer Restricted Security only, the following
additional information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to the
person designated by the Depository as being the owner of a beneficial
interest in a Global Security, a certification from such Person to that
effect (in the form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certification
to that effect (in the form set forth on the reverse of the Security);
or
(C) if such beneficial interest is being transferred (w)
pursuant to an exemption from registration in accordance with Rule 144
or Regulation S under the Securities Act; or (x) to an institutional
"accredited investor" as described in 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 $100,000 for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities; or (y) in reliance on another exemption from the
registration requirements of the Securities Act: a certification to
that effect from the transferee or transferor (in the form set forth on
the reverse of the Security), and (ii) if the Company or Registrar so
requests, evidence reasonably satisfactory to them as to the compliance
with the restrictions set forth in the legend set forth in Section
2.06(g)(i),
then the Trustee or the Securities Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate principal
amount of the Global Security to be reduced on its books and records and,
following such reduction, the Company will execute and the Trustee will
authenticate and deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect
28
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Definitive Securities to the persons in whose names such Securities are so
registered in accordance with the instructions of the Depository.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.06), a Global
Security may not be transferred as a whole except 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 or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Securities. If at any time:
(i) the Depository notifies the Company that the Depository is
unwilling or unable to continue as Depository for the Global Securities
and a successor Depository for the Global Securities is not appointed
by the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of a written order
of the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company requesting the authentication
and delivery of Definitive Securities to the Persons designated by the Company,
will authenticate and deliver Definitive Securities, in an aggregate principal
amount equal to the principal amount of Global Securities, in exchange for such
Global Securities.
(g) Legend. (i) Except as permitted by the following paragraph
(ii), each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following form:
"THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE
INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
29
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A)
ABOVE OR TO AN INSTITUTIONAL ACCREDITED INVESTOR AS DESCRIBED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND,
IN EACH CASE (A) AND (B), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security;
(B) in the case of any Transfer Restricted Security that is
represented by a Global Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security, if
the Holder's request for such exchange was made in reliance on Rule 144
and the Holder certifies to that effect in writing to the Registrar
(such certification to be in the form set forth on the reverse of the
Security); and
(C) in the case of any Transfer Restricted Security that is
represented by a Global Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security (in connection
with the offer to exchange Exchange Securities for Initial Securities
pursuant to the Registration Rights Agreement) for another Global
Security that does not bear the legend set forth above.
(h) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, repurchased or canceled, such Global
Security shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for Definitive
30
Securities, redeemed, repurchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
Securities. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's or co-registrar's request.
(ii) 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, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.06,
4.08 and 9.05).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article 3, except the unredeemed
portion of any Definitive Security being redeemed in part, or (b) any Security
for a period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase or redeem Securities or 15 Business Days before an interest
payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(j) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
31
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depository or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
(ii) 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 Depository
participants, members or beneficial owners 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.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar 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 requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
32
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. (a) Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
(b) A Global Security deposited with the Depository or with
the Trustee as custodian for the Depository pursuant to Section 2.01 shall be
transferred to the beneficial owners thereof only if such transfer complies with
Section 2.06 and (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or if at any time such
Depository ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing.
(c) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depository
to the Trustee located in the Borough of Manhattan, The City of New York, to be
so transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Security, an equal aggregate principal amount of Initial Securities
of authorized denominations. Any portion of a Global Security transferred
pursuant to this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in such
names as the Depository shall direct. Any Initial Security delivered in exchange
for an interest in the Global Security shall, except as otherwise provided by
Section 2.06(b), bear the restricted securities legend set forth in Exhibit A
hereto.
(d) Subject to the provisions of Section 2.09(c), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(e) In the event of the occurrence of either of the events
specified in Section 2.09(b), the Company will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
33
SECTION 2.10. 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
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and return all Securities surrendered for registration of transfer,
exchange, payment or cancellation to the Company. The Company may not issue new
Securities to replace Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed (or upon the Company's failure to do so the Trustee shall fix)
any such special record date and payment date to the reasonable satisfaction of
the Trustee which specified record date shall not be less than 10 days prior to
the payment date for such defaulted interest (unless the Trustee agrees
otherwise) and shall promptly mail or cause to be mailed to each Securityholder
a notice that states the special record date, the payment date and the amount of
defaulted interest to be paid. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
person entitled to such defaulted interest as in this subsection provided.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
34
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities on May 15, 2008, it shall notify the Trustee in writing of the
redemption date and the principal amount at maturity of Securities to be
redeemed.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities to Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities (including CUSIP
number) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
35
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts at maturity of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities; and
(8) the aggregate principal amount of Securities being
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
The notice, if mailed in the manner provided herein, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice shall not affect the validity of the succeedings for the redemption
of any Security.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount at maturity to the unredeemed portion of the Security
surrendered.
36
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be required to be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the SEC and thereupon
provide the Trustee and Securityholders with such annual reports and such
information, documents and other reports which are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections. The Company also shall comply with the other
provisions of TIA ss. 314(a).
Subject to the terms of this Indenture, delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.03. Limitation on Debt. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Issue, directly or
indirectly, any Debt; provided, however, that the Company or its Restricted
Subsidiaries may Issue Debt if at the date of such Issuance the Cash Flow
Leverage Ratio does not exceed 8.75 to 1.0.
(b) Notwithstanding Section 4.03(a), the Company and the
Restricted Subsidiaries may Issue the following Debt:
37
(1) Debt of the Company or Benedek Broadcasting Issued
pursuant to the Revolving Credit Facility under the Bank Credit
Agreement (including Guarantees thereof and any letters of credit
Issued thereunder) or any other agreement or indenture in a principal
amount which, when taken together with the principal amount of all
other Debt Issued pursuant to this clause (1) and then outstanding,
does not exceed the greater of (i) $15,000,000 and (ii) 75% of the book
value of the accounts receivable of the Company and the Restricted
Subsidiaries determined in accordance with GAAP as of the end of the
most recent fiscal quarter prior to the date of determination;
(2) Debt of the Company or Benedek Broadcasting (including any
letters of credit Issued thereunder) Issued pursuant to the Bank Credit
Agreement (other than the Revolving Credit Facility) or any other
agreement or indenture in an aggregate principal amount which, when
taken together with the principal amount of all other Debt issued
pursuant to this clause (2) and then outstanding, does not exceed (A)
$110.8 million less (B) the lesser of (i) the aggregate amount of all
principal repayments of any Debt actually made after the Issue Date
(other than any such principal repayments made as a result of the
Refinancing of any such Debt) and (ii) the scheduled principal
amortization payments to have been made by then under the terms of the
Bank Credit Agreement (but without giving effect to any changes to such
scheduled principal payments after the Issue Date);
(3) Debt owed to and held by the Company or a Wholly Owned
Subsidiary; provided, however, that any subsequent Issuance or transfer
of any Capital Stock or any other event which results in any such
Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any
subsequent transfer of such Debt (other than to a Wholly Owned
Subsidiary) shall be deemed, in each case, to constitute the Issuance
of such Debt by the issuer thereof;
(4) the Securities (including any Securities issued in lieu of
cash interest payments with respect to the Securities), the
Exchangeable Preferred Stock and Refinancing Debt of the Company Issued
in respect of (A) any Debt permitted by this clause (4) and (B) any
debt relating to the issuance of any Additional Shares pursuant to
Section 4.03(a) (including the accretion of any original issue discount
associated with Debt permitted by this clause (4) and the increase in
liquidation preference with respect to any Debt permitted by this
clause (4));
(5) Debt (other than Debt described in clause (1), (2), (3),
or (4) of this Section 4.03(b) but including Debt represented by the
Company Pledge Agreement) outstanding on the Issue Date, and
Refinancing Debt in respect of any Debt permitted by this clause (5) or
by the provisions of Section 4.03(a);
38
(6) Debt or Preferred Stock of a Subsidiary Issued and
outstanding on or prior to the date on which such Subsidiary became a
Subsidiary or was acquired by the Company (other than Debt or Preferred
Stock Issued in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Subsidiary became
a Subsidiary or was acquired by the Company) and Refinancing Debt of
such Subsidiary Issued in respect of any Debt of such Subsidiary
permitted by this clause (6); provided, however, that after giving
effect thereto, except in the case of any Refinancing Debt, the Company
or any Restricted Subsidiary could Issue an additional $1.00 of Debt
pursuant to Section 4.03(a);
(7) Debt consisting of Guarantees by BLC of Permitted
Acquisition Debt; and
(8) Debt of the Company or any Restricted Subsidiary (in
addition to the Debt permitted to be Issued pursuant to Section 4.03(a)
or in any other clause of this Section 4.03(b)) in an aggregate
principal amount on the date of Issuance which, when added to all other
Debt Issued pursuant to this clause (8) and then outstanding, shall not
exceed $15,000,000.
(c) Notwithstanding Sections 4.03(a) and 4.03(b), the Company
shall not Issue any Debt under Section 4.03(b) if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations unless such Debt shall be subordinated to
the Securities to at least the same extent as such Subordinated Obligations.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions payable solely
in its NonConvertible Capital Stock or in options, warrants or other rights to
purchase its Non-Convertible Capital Stock and except dividends or distributions
payable to the Company or a Restricted Subsidiary and, if a Restricted
Subsidiary is not wholly owned, to the other stockholders on a pro rata basis),
(ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock
of the Company or of any Restricted Subsidiary (except any such purchases,
redemptions, acquisitions or retirements of Capital Stock of a Restricted
Subsidiary held by the Company or another Restricted Subsidiary, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of
39
satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of acquisition) or (iv) make any
Investment in any Affiliate of the Company other than a Restricted Subsidiary or
a person which will become a Restricted Subsidiary as a result of any such
Investment (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being herein referred to
as a "Restricted Payment") if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not able to Issue an additional $1.00 of
Debt pursuant to Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of:
(A) the cumulative Operating Cash Flow (whether
positive or negative) accrued during the period (treated as
one accounting period) from the beginning of the fiscal
quarter during which the Issue Date occurs to the end of the
most recent fiscal quarter ending at least 45 days prior to
the date of such Restricted Payment less the product of 1.4
multiplied by the cumulative Consolidated Interest Expense
during such period;
(B) the aggregate Net Cash Proceeds received by the
Company from the Issue or sale of its Capital Stock (other
than Redeemable Stock, Exchangeable Stock, Senior Stock or
Parity Stock and other than Exchangeable Preferred Stock)
subsequent to the Issue Date (other than an Issuance or sale
to a Subsidiary or to an employee stock ownership plan or
other trust established by the Company or any of the
Subsidiaries for the benefit of their employees or to
officers, directors or employees to the extent that the
Company or any Subsidiary has outstanding loans or advances to
such employees pursuant to clause (vii) of Section 4.04(b) or
clause (iii) of Section 4.07(b) (all such excluded Capital
Stock being herein collectively called "Excluded Stock")); and
(C) the amount by which indebtedness of the Company
is reduced on the Company's balance sheet upon the conversion
or exchange (other than by a Subsidiary), subsequent to the
Issue Date, of any Debt of the Company that is by its original
terms convertible or exchangeable for Capital Stock (other
than Redeemable Stock, Exchangeable Stock, Senior Stock or
Parity Stock) of the
40
Company (less the amount of any cash, or other property,
distributed by the Company upon such conversion or exchange);
provided, however, that, for the purposes of the calculation required by this
clause (3), the value of any such Restricted Payment, if other than cash, shall
be evidenced by a resolution of the Board of Directors and determined in good
faith by the disinterested members of the Board of Directors; provided further,
however, that, in the case of a distribution or other disposition by the Company
of all or substantially all the assets of a broadcast station or other business
unit, the value of any such Restricted Payment shall be determined by an
investment banking firm of national prominence that is not an Affiliate of the
Company. Notwithstanding the foregoing, the Company shall not declare or pay any
cash dividend or make any cash distribution on or in respect of (i) any Senior
Stock or Parity Stock prior to May 15, 2003 or (ii) any Junior Stock (including
the Seller Junior Discount Preferred Stock and its Common Stock) prior to
October 1, 2001.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Company made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Capital Stock of
the Company (other than Redeemable Stock or Exchangeable Stock and
other than Excluded Stock); provided, however, that (A) such purchase
or redemption shall be excluded in the calculation of the amount of
Restricted Payments and (B) the Net Cash Proceeds from such sale shall
be excluded from clauses 3(B) and 3(C) of Section 4.04(a);
(ii) any purchase or redemption of Seller Junior Discount
Preferred Stock out of the proceeds of the sale of any Additional
Shares; provided, however, that without limiting the Company's ability
to so purchase or redeem the Seller Junior Discount Preferred Stock,
such purchase or redemption shall be included in any subsequent
calculation of the amount of Restricted Payments;
(iii) any purchase or redemption of Subordinated Obligations
of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Debt of the Company which is
permitted to be Issued pursuant to Section 4.03; provided, however,
that such purchase or redemption shall be excluded in the calculation
of the amount of Restricted Payments;
(iv) any purchase or redemption of Subordinated Obligations
from Net Available Cash to the extent permitted by Section 4.06;
provided, however, that such purchase or redemption shall be excluded
in the calculation of the amount of Restricted Payments;
41
(v) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 4.04; provided, however, that at the
time of payment of such dividend, no other Default shall have occurred
and be continuing (or result therefrom); provided further, however,
that such dividend shall be included in the calculation of the amount
of Restricted Payments;
(vi) Investments in Non-Recourse Affiliates made in an
aggregate amount (which amount shall be reduced by the amount equal to
the net reduction in Investments in Non-Recourse Affiliates resulting
from payments of dividends, repayments of loans or advances or other
transfers of assets to the Company or any Restricted Subsidiary from
Non-Recourse Affiliates) from the Issue Date not to exceed $10,000,000;
provided, however, that the amount of such Investments shall be
excluded in the calculation of the amount of Restricted Payments;
(vii) loans or advances to officers and directors of the
Company (other than a Restricted Holder) (A) in the ordinary course of
business in an aggregate amount outstanding not in excess of $1,000,000
or (B) the proceeds of which are used to acquire Capital Stock of the
Company (other than Redeemable Stock or Exchangeable Stock); provided
further, however, that such loans and advances shall be excluded in the
calculation of the amount of Restricted Payments; or
(viii) the retirement of the Exchangeable Preferred Stock
through the issuance of the Securities; provided further, however, the
amount thereof shall be excluded in the calculation of the amount of
Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock or pay any Debt owed to the Company other than an encumbrance
or restriction with respect to dividends or distributions by Benedek
Broadcasting in connection with a senior bank financing, (ii) make any loans or
advances to the Company or (iii) transfer any of its property or assets to the
Company, except:
(1) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(2) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any Debt
Issued by such Restricted Subsidiary on or prior to the date on which
such Restricted Subsidiary was acquired by the Company
42
(other than Debt Issued as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Company) and outstanding on such date;
(3) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Debt Issued pursuant to an agreement
referred to in clause (1) or (2) of this Section 4.05 or contained in
any amendment to an agreement referred to in clause (1) or (2) of this
Section 4.05; provided, however, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment are no less
favorable to the Securityholders than encumbrances or restrictions
contained in such agreements;
(4) any such encumbrance or restriction consisting of
customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease;
(5) in the case of clause (iii) above, restrictions contained
in security agreements securing Debt of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property subject
to such security agreements; and
(6) any restriction with respect to 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.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Disposition at least
equal to the fair market value, as determined in good faith by the Board of
Directors (including as to the value of all non-cash consideration), of the
shares and assets subject to such Asset Disposition and at least 90% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of cash and (ii) an amount equal to 100% of the Net Available Cash
from such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be) (A) first, to the extent the Company elects (or
is required by the terms of any Debt), to prepay, repay or purchase Senior Debt
or Debt (other than any Redeemable Stock) of a Wholly Owned Subsidiary (in each
case other than Debt owed to the Company or an Affiliate of the Company) within
60 days from the later of the date of such Asset Disposition or the receipt of
such Net Available Cash; (B) second, to the extent of the balance of such Net
Available Cash after application in accordance with clause (A), at the Company's
election to the investment by the Company or
43
any Restricted Subsidiary in assets to replace the assets that were the subject
of such Asset Disposition or in assets that, as determined by the Board of
Directors and evidenced by resolutions of the Board of Directors, will be used
in the businesses of the Company and its Restricted Subsidiaries existing on the
Issue Date or in businesses reasonably related thereto, in all cases within 270
days after the later of the date of such Asset Disposition or the receipt of
such Net Available Cash; (C) third, to the extent the Company is entitled
pursuant to then existing contractual limitations to receive dividends and
distributions from the relevant Restricted Subsidiary and to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(A) and (B), to make an offer pursuant to and subject to the conditions
contained in this Indenture to the Holders (and to holders of other Debt
designated by the Company that is pari passu with the Securities) to purchase
Securities (and such other Debt) at a purchase price of 100% of the principal
amount thereof (without premium) plus accrued and unpaid interest (or in respect
of such other Debt such lesser price, if any, as may be provided for by the
terms of such other Debt); and (D) fourth, to the extent of the balance of such
Net Available Cash after application in accordance with clauses (A), (B) and
(C), to the prepayment, repayment or purchase of Debt (other than any Redeemable
Stock) of the Company (other than Debt owed to an Affiliate of the Company) or
Debt of any Restricted Subsidiary (other than Debt owed to the Company or an
Affiliate of the Company), in each case within 360 days after the later of the
receipt of such Net Available Cash and the date the offer described in clause
(C) is consummated; provided, however, that, in connection with any prepayment,
repayment or purchase of Debt pursuant to clause (A), (C) or (D) above, the
Company or such Restricted Subsidiary shall retire such Debt and shall cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased. Notwithstanding the
foregoing provisions of this Section 4.06, the Company and the Restricted
Subsidiaries shall not be required to apply any Net Available Cash in accordance
with this Section except to the extent that the aggregate Net Available Cash
from all Asset Dispositions which are not applied in accordance with this
Section 4.06 exceeds $5,000,000. The Company shall not permit any Non-Recourse
Subsidiary to make any Asset Disposition unless such Non-Recourse Subsidiary
receives consideration at the time of such Asset Disposition at least equal to
the fair market value of the shares or assets so disposed of. Pending
application of Net Available Cash pursuant to this Section 4.06, such Net
Available Cash shall be invested in Permitted Investments.
(b) In the event of an Asset Disposition that requires the
purchase of Securities (and other Debt that is pari passu with the Securities)
pursuant to Section 4.06(a)(ii)(C), the Company will be required to purchase
Securities tendered pursuant to an offer by the Company for the Securities (and
other Debt) (the "Offer") at a purchase price set forth in Section 4.06(a) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.06(c). The Company shall not be
required to make an Offer pursuant to this Section 4.06 if the Net Available
Cash available therefor is less than $5,000,000 for any particular Asset
Disposition (which lesser amount shall be carried
44
forward for purposes of determining whether an Offer is required with respect to
any subsequent Asset Disposition; provided, however, that any such Asset
Disposition the proceeds of which do not exceed $1,000,000 shall be excluded
from the aforementioned calculation).
(c) (1) Promptly, and in any event within 30 days after the
Company becomes obligated to make an Offer, the Company shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorating as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum will
include (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such Reports, and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender Securities
pursuant to the Offer, together with the information contained in clause (3)
below.
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, aggregate and hold in
trust) in immediately available funds an amount equal to the Offer Amount to be
held for payment in accordance with the provisions of this Section 4.06. Upon
the expiration of the period for which the Offer remains open (the "Offer
Period"), the Company shall deliver to the Trustee the Securities or portions
thereof which have been properly tendered to and are to be accepted by the
Company. The Trustee shall, on the Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount, the Trustee shall deliver the excess to
the Company promptly after the expiration of the Offer Period.
(3) Holders electing to have a Security purchased will be
required to surrender the Security, with the form set forth on the reverse of
the Security duly completed,
45
to the Company at the address specified in the notice at least ten Business Days
prior to the Purchase Date. Holders will be entitled to withdraw their election
if the Trustee receives not later than three Business Days prior to the Purchase
Date, a facsimile transmission (promptly confirmed in writing) or letter (a copy
of which the Trustee shall give to the Company not later than one Business Day
prior to the Purchase Date) setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the aggregate principal
amount at maturity of Securities surrendered by Holders, together with the
aggregate purchase price of the other Senior Subordinated Debt surrendered in
connection with the Offer, exceeds the Offer Amount, the Company shall select
the Securities and such other Senior Subordinated Debt to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Company so
that only Securities having a principal amount of $1,000, or integral multiples
thereof, shall be purchased). Holders whose Securities are purchased only in
part will be Issued new Securities equal in principal amount at maturity to the
unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company will also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.06. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company may not, and may not permit any Restricted Subsidiary to, conduct
any business or enter into any transaction or series of related transactions
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Company unless the terms of
such business, transaction or series of transactions are as favorable to the
Company or such Restricted Subsidiary as terms that would be obtainable at the
time for a comparable transaction or series of transactions in arm's-length
dealings with an unrelated third person; provided, however, that, in the case of
any transaction or series of related transactions involving aggregate payments
or other transfers by the Company and its Restricted Subsidiaries in excess of
(i) $1,000,000, the Company shall deliver an Officers' Certificate to the
Trustee certifying that the terms of such business, transaction or series of
transactions
46
(x) comply with this Section 4.07, (y) have been set forth in writing and (z)
have been determined in good faith by the disinterested members of the Board of
Directors to satisfy the criteria set forth in this covenant and (ii)
$5,000,000, the Company shall also deliver to the Trustee an opinion from an
investment banking firm of national prominence that is not an Affiliate of the
Company to the effect that such business, transaction or transactions are fair
to the Company or such Restricted Subsidiary from a financial point of view.
(b) The provisions of Section 4.07(a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.04;
(ii) any Issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, indemnity agreements, stock options and stock
ownership plans approved by the Board of Directors in the ordinary
course of business and consistent with industry practices;
(iii) loans or advances to employees of the Company and the
Subsidiaries (other than Restricted Holders) (A) in the ordinary course
of business in an aggregate amount outstanding not to exceed $5,000,000
at any one time outstanding or (B) the proceeds of which are used to
acquire from the Company Capital Stock of the Company (other than
Redeemable Stock or Exchangeable Stock);
(iv) the payment of reasonable fees to directors of the
Company and its Subsidiaries (other than a Restricted Holder) who are
not employees of the Company or its Subsidiaries;
(v) salaries to employees in the ordinary course of business
and consistent with industry practices; and
(vi) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries; provided, however, that
no portion of the minority interest in any such Restricted Subsidiary
is owned by an Affiliate (other than the Company or a Wholly Owned
Subsidiary) of the Company.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company repurchase all or
any part of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount thereof plus, without duplication, accrued and unpaid
interest, if any, to the date of repurchase, in accordance with the terms
contemplated in Sections 4.08(b) and (c) (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date).
47
(b) Prior to the mailing of notice referred to in Section
4.08(c), but in any event within 30 days following the date on which the Company
becomes aware that a Change of Control has occurred, the Company covenants that
if the repurchase of Securities would violate or constitute a default under the
Bank Credit Agreement, the Senior Subordinated Discount Note Indenture or other
indebtedness of the Company, then the Company shall (i) repay all such
indebtedness and terminate all commitments outstanding thereunder or (ii) obtain
the requisite consents under the Bank Credit Agreement, the Senior Subordinated
Discount Note Indenture and any other agreement governing such other
indebtedness to permit repurchase of the Securities as provided in this Section.
The Company must comply with this Section 4.08(b) before it will be required to
repurchase Securities pursuant to Section 4.08(c).
(c) Within 30 days following the date upon which the Company
becomes aware that a Change of Control has occurred, the Company shall send, by
first-class mail, postage pre-paid, a notice to each Holder, with a copy to the
Trustee, stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to repurchase all or any part of
such Holder's Securities at a repurchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any,
to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant
interest payment date);
(ii) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to
such Change of Control);
(iii) the repurchase date (which shall be no earlier than 30
days nor later than 45 days from the date such notice is mailed, other
than as required by law); and
(iv) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities repurchased.
(d) Holders electing to have a Security repurchased pursuant
to this Section will be required to surrender the Security, with the form set
forth on the reverse of the Security duly completed, to the Paying Agent at the
address specified in the notice on the Business Day prior to the repurchase
date.
(e) On the repurchase date, all Securities repurchased by the
Company under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the repurchase price plus accrued and unpaid interest,
if any, to the Holders entitled thereto.
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(f) The Company shall comply with any tender offer rules under
the Exchange Act which may then be applicable, including Rule 14e-1, in
connection with any offer required to be made by the Company to repurchase the
Securities pursuant to this Section 4.08. To the extent that the provisions of
any securities laws or regulations conflict with provisions of this Section
4.08, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.08 by virtue thereof.
(g) The provisions of this Section 4.08 cannot be waived by
the Board of Directors (except that the Board of Directors may approve a new
group of directors as described in paragraph (iii) in the definition of Change
of Control contained herein and thereby prevent the occurrence of such Change of
Control). The provisions relative to the Company's obligation to make an offer
to repurchase the Securities as a result of a Change of Control may be waived or
modified with the written consent of the Holders of a majority in principal
amount of the Securities.
SECTION 4.09. Limitation on Liens. The Company shall not
create, incur or suffer to exist any Lien upon any of its property or assets now
owned or hereafter acquired by it securing any Debt that is not Senior Debt,
unless contemporaneously therewith effective provision is made for securing the
Securities equally and ratably with such Debt as to such property for so long as
such Debt will be so secured.
SECTION 4.10. Limitation on Sale/Leaseback Transactions. The
Company shall not enter into a Sale/Leaseback Transaction unless (i) the Company
would be able to incur Debt in an amount equal to the Attributable Debt with
respect to such Sale/Leaseback Transaction secured by a Lien pursuant to Section
4.03 and Section 4.09 or (ii) the Company receives consideration from such
Sale/Leaseback Transaction at least equal to the fair market value of the
property subject thereto (which shall be determined in good faith by the Board
of Directors and evidenced by a resolution of the Board of Directors) and elects
to treat the disposition assets subject to such Sale/Leaseback Transaction as an
Asset Disposition subject to Section 4.06.
SECTION 4.11. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default by the Company and whether or not the signers know
of any Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
'SS' 314(a)(4). One of the Officers signing such Officers' Certificate shall be
the principal executive, principal financial or principal accounting officer of
the Company.
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SECTION 4.12. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any person, unless:
(i) the resulting, surviving or transferee person (if not the
Company) shall be a person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and such entity shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Securities
and this Indenture;
(ii) immediately prior to and after giving effect to such
transaction (and treating any Debt which becomes an obligation of the
resulting, surviving or transferee person or any Subsidiary as a result
of such transaction as having been incurred by such person or such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
resulting, surviving or transferee person would be able to Issue an
additional $1.00 of Debt pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
resulting, surviving or transferee person shall have Consolidated Net
Worth in an amount which is not less than the Consolidated Net Worth of
the Company prior to such transaction; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The resulting, surviving or transferee person shall be the
successor Company and shall succeed to, and be substituted for, and may exercise
every right and power of, the
50
Company under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Securities.
SECTION 5.02. When Benedek Broadcasting May Merge or Transfer
Assets. The Company shall not permit Benedek Broadcasting to consolidate or
merge with or into, or convey, transfer or lease all or substantially all its
assets to, any person, unless:
(i) the resulting, surviving or transferee person (if not
Benedek Broadcasting) shall be organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia;
(ii) immediately prior to and after giving effect to such
transaction (and treating any Debt which becomes an obligation of the
resulting, surviving or transferee person or any Subsidiary as a result
of such transaction as having been incurred by such person or such
Subsidiary at the time of such transaction), no Default has occurred
and is continuing;
(iii) immediately after giving effect to such transaction, the
Company would be able to issue an additional $1.00 of Debt pursuant to
Section 4.03(a);
(iv) all of the Capital Stock of the resulting, surviving or
transferee person is owned by the Company; and
(v) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
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(3) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09 or 4.10 (in each case, other than a
failure to purchase Securities) and such failure continues for 30 days
after the notice specified below;
(4) the Company fails to comply with any of its other
agreements or covenants in the Securities or this Indenture (other than
those referred to in (1), (2), or (3) above) and such failure continues
for 60 days after the notice specified below;
(5) Debt of the Company, BLC or any Significant Subsidiary is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total
amount of such Debt unpaid or accelerated exceeds $5,000,000 and such
default continues for 10 days after the notice specified below;
(6) the Company, BLC or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating
to insolvency;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company, BLC or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, BLC or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company, BLC or any Significant Subsidiary;
52
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(8) any judgment or decree for the payment of money in excess
of $5,000,000 is entered against the Company, BLC or any Significant
Subsidiary and is not discharged and there is a period of 60 days
following the entry of such judgment or decree during which such
judgment or decree is not discharged, waived or the execution thereof
stayed; or
(9) the Company, Benedek Broadcasting, BLC or a Significant
Subsidiary fails to maintain any License or Licenses with respect to a
Television Station or Television Stations owned by it which License or
Licenses are necessary for the continued transmission of such
Television Station or Television Station's normal programming and the
Operating Cash Flow for the most recently completed four fiscal
quarters of the Company of such Television Station or Television
Stations exceeds 10% of the Operating Cash Flow of the Company for such
period.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body. The notice provided for in clause (3), (4) or (5) shall be
given to the Company by the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities. Such Notice must specify the Default,
demand that it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 10 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which would constitute an Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least
25% in principal amount of the outstanding Securities by notice to the Company
and the Trustee, may declare the principal amount of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(5) or (6) with respect to the Company occurs
and is continuing, the principal of and interest on all the Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholders. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
rescind any such acceleration with respect to the Securities and its
consequences if the rescission would not conflict with any judgment or decree
and if all
53
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. In addition, if an Event of Default occurs within 12
calendar months after the issuance of the Securities and so long as such Event
of Default is continuing, the Holders will have voting rights, after a 10-day
period during which such Default shall not have been cured or such acceleration
rescinded, then the number of directors constituting the Board of Directors will
be adjusted to permit the Holders of a majority of the then outstanding
Securities voting separately and as a class, to elect the lesser of two
directors and that number of directors constituting 25% of the members of the
Board of Directors. Such voting rights shall continue until such time as any
failure, breach or Default giving rise to such voting rights is remedied or
waived by Holders of at least a majority of the Securities then outstanding, at
which time the term of any directors elected pursuant to the provisions set
forth above shall terminate.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy 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 Securityholder in exercising any right
or remedy accruing 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.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay at such time if the Company then had elected to redeem the
Securities pursuant to Article 3 and paragraph 5 of the Securities, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Securities.
SECTION 6.04. Waiver of Past Defaults. The Holders of
two-thirds in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
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SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount
outstanding of the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory in the judgment of the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 10
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 10-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
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 and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, 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.
55
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of interest or principal specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
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 and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Debt to the extent required by
Article 10;
THIRD: to Securityholders 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
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
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
56
reasonable costs, including reasonable attorneys' fees, 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 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished in accordance with this Indenture to the Trustee and
conforming to the requirements of this Indenture. However, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
substantially conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
57
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) 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.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely and
shall be protected in acting or refraining from acting 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 or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to the Company, to
examine the books, records, and the premises of the Company, personally or by
agent or attorney and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
SECTION 7.03. 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 its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. 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 in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
59
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 10 days after it occurs. In
addition, the Company is required to deliver to the Trustee, within 90 days
after the end of each fiscal year and within 45 days after the end of each of
the three fiscal quarters of each year, written notice in the form of an
Officer's Certificate indicating whether the signers thereof know of any Default
that occurred during the previous year. Except in the case of a Default in
payment of principal of or interest on any Security (including payments pursuant
to the mandatory redemption provisions of such Security), 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 interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA 'SS' 313(a), if such report is required by TIA 'SS' 313(a).
The Trustee also shall comply with TIA 'SS' 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time such compensation as the Trustee and the
Company shall agree in writing for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall indemnify
each of the Trustee or any predecessor Trustee against any and all loss,
liability, damage, claim or expense (including attorneys' fees and expenses and
including taxes (other than taxes based on the income of the Trustee)) incurred
by it in connection with the acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith.
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To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture.
When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(6) or (7) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise 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.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
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 a majority in principal amount of the Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA 'SS' 310(a). 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. The Trustee shall comply with 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.
SECTION 7.11. Preferential Collection of Claims Against
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.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption date
(other than Securities replaced pursuant to Section 2.07), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.01(c) and 8.06, cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 5.01(iii), 5.01(iv) or
5.02(iii) and the operation of Sections 6.01(5), 6.01(6) (only with respect to
Significant Subsidiaries), 6.01(7) (only with respect to Significant
Subsidiaries), 6.01(8) and 6.01(9) ("covenant defeasance option"). The Company
may exercise its legal defeasance option notwithstanding its prior exercise of
its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(4), 6.01(5) and 6.01(6) (only with respect to
Significant Subsidiaries), 6.01(7) and 6.01(8) or because of the failure of the
Company to comply with Section 5.01(iii), Section 5.01(iv) or Section 5.02(iii).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
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SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
cash in U.S. dollars, U.S. Government Obligations or a combination
thereof that, through the payment of interest and prinicpal in respect
thereof in accordance with their terms, will be sufficient to pay
principal, premium (if any) and interest on the Securities to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion as to (1) above;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(5) or (6) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and 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 defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same
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amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon written request any excess
money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Securityholders entitled to the money must look to
the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 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 had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; 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 U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice
to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 that would limit or
terminate the benefits available to any holder of Senior Debt (or
Representatives therefor) under Article 10;
(5) to add Guarantees with respect to the Securities or to
secure the Securities;
(6) 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;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
Notwithstanding the foregoing, no amendment may be made to
Article 10 of this Indenture that adversely affects the rights of any holder of
any Debt then outstanding unless the holders of such Debt (or Representatives
therefor) consent to such change.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give
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such notice to all Securityholders, or any defect therein, shall not impair or
affect the validity or an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least
two-thirds in principal amount of the Securities then outstanding. However,
without the consent of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may or must be
redeemed in accordance with Article 3;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Section 6.04, 6.06 or 6.07 or the
second sentence of this Section; or
(7) make any change to Article 11 of this Indenture that
adversely affects the rights of any Securityholder under Article 10.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
An amendment under this Section 9.02 may not make any change
that adversely affects the rights under Article 10 of any holder of Senior Debt
then outstanding unless the
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holders of such Senior Debt (or any group or representative therefore authorized
to give a consent) consent to such change.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those persons who were
Securityholders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment 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 regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
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SECTION 9.07. Payment for Consent. Neither the Company, any
Affiliate of the Company nor any Subsidiary shall, directly or indirectly, pay
or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder 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 agreed to be paid to all
Holders which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Subordination
SECTION 10.01. Agreement to Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the payment of the
principal of and interest on and premiums, penalties, fees and other liabilities
in respect of the Securities (collectively, the "Subordinated Payment
Obligations") are subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full in cash or cash
equivalents of all Senior Debt (including Senior Subordinated Debt), whether
outstanding on the Issue Date or thereafter incurred, including the Senior
Subordinated Discount Notes and the Company's guarantee of Benedek
Broadcasting's obligation under the Bank Credit Agreement and with respect to
the Senior Secured Notes, and that the subordination is for the benefit of and
enforceable by the holders of Senior Debt. For purposes of this Article 10,
Senior Debt outstanding under the Bank Credit Agreement shall not be deemed paid
in full in cash or cash equivalents at any time unless all letters of credit
outstanding under the Bank Credit Agreement which have not been drawn upon at
such time are fully cash collateralized or returned undrawn. All provisions of
this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive
payment in full in cash or cash equivalents of such Senior Debt before
Securityholders shall be entitled to receive any payment of principal
of, or premium, if any, or interest on the Securities or on any other
Subordinated Payment Obligation; and
(2) until the Senior Debt is paid in full in cash or cash
equivalents, any payment or distribution to which Securityholders would
be entitled but for this Article 10 shall be made to holders of Senior
Debt as their interest may appear, except that so
69
long as the Securityholders are not in the same or a higher class of
creditors in such liquidation, dissolution or proceeding as the holders
of the Senior Debt, Securityholders may receive shares of stock and any
debt securities that are subordinated to Senior Debt to at least the
same extent as the Securities.
SECTION 10.03. Default on Senior Debt. The Company may not pay
the principal of, premium, if any, interest on or any other Subordinated Payment
Obligation in respect of the Securities or make any deposit pursuant to Article
8 and may not repurchase, redeem or otherwise retire any Securities
(collectively, "pay the Securities") if (i) any Designated Senior Debt is not
paid when due or (ii) any other default on Designated Senior Debt occurs and the
maturity of such Designated Senior Debt is accelerated in accordance with its
terms unless, in either case, (x) the default has been cured or waived and any
such acceleration has been rescinded or (y) such Designated Senior Debt has been
paid in full in cash or cash equivalents; provided, however, that the Company
may pay the Securities without regard to the foregoing if the Company and the
Trustee receive written notice approving such payment from the Representative of
such Designated Senior Debt with respect to which either of the events set forth
in clause (i) or (ii) above has occurred and is continuing. Upon the occurrence
and 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 Debt 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, the
Company may not pay 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 of such default from the Representative of such Designated Senior
Debt specifying an election to effect a Payment Blockage Period (a "Payment
Blockage Notice") 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 Representative of such Designated Senior Debt or the Person or
Persons who gave such Payment Blockage Notice, (ii) by repayment in full in cash
or cash equivalents of such Designated Senior Debt or (iii) because the default
giving rise to such Payment Blockage Notice is no longer continuing).
Notwithstanding anything in the foregoing to the contrary, a Payment Blockage
Notice may only be given by and therefore shall only be effective in respect of
the Company and the Trustee if given by (i) the Representative of the Bank Debt
as long as any Bank Debt is outstanding or the Representative of the Senior
Secured Notes as long as any Senior Secured Notes are outstanding and (ii) if no
Bank Debt or Senior Secured Notes are outstanding, any other Representative of
outstanding Designated Senior Debt. Notwithstanding the provisions described in
the immediately preceding sentence, unless the holders of such Designated Senior
Debt or the Representative of such holders shall have accelerated the maturity
of such Designated Senior Debt, the Company may, subject to the provisions
contained in the first sentence of this paragraph, resume payments on the
Securities after such Payment Blockage Period has terminated. Not more than one
Payment Blockage Notice may be given in any consecutive 360-day period,
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irrespective of the number of defaults with respect to Designated Senior Debt
during such period. For purposes of this Section 10.03, no default or Event of
Default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Debt initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Debt whether or not within a period of 360 consecutive days unless such
default or event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify the holders of the Designated Senior Debt or their
Representative of the acceleration.
SECTION 10.05. When Distribution Must Be Paid Over. If any
distribution is made to Securityholders or the Trustee that because of this
Article 10 should not have been made to them, the Securityholders who receive
the distribution or the Trustee, as the case may be, shall segregate such
distribution from other funds or assets, hold it in trust for holders of Senior
Debt and pay immediately or deliver it over to them ratably in accordance with
the respective amounts of Senior Debt held or represented by each of them until
all Senior Debt is paid in full in cash or cash equivalents.
SECTION 10.06. Subrogation. After all Senior Debt is paid in
full in cash or cash equivalents and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt. A distribution made under this
Article 10 to holders of Senior Debt which otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a payment by
the Company on Senior Debt. Senior Debt outstanding under the Bank Credit
Agreement shall not be deemed paid in full in cash or cash equivalents at any
time unless all letters of credit outstanding under the Bank Credit Agreement
which have not been drawn upon at such time are fully cash collateralized or
returned undrawn.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Securities in
accordance with their terms; or
(2) except as set forth in Section 10.04, prevent the Trustee
or any Securityholder from exercising its available remedies upon a
Default, subject to the
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rights of holders of Senior Debt to receive distributions otherwise
payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company or
Holders of Senior Debt. No right of any present or future holder of any Senior
Debt to enforce the subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibilities to the Securityholders and without impairing or
releasing the subordination provided in this Article 10 or the obligations
hereunder of the Securityholders to the holders of Senior Debt, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, the Senior Debt, or otherwise
amend or supplement in any manner the Senior Debt or instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, foreclose, release or otherwise deal with any property, pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
If at any time any payments with respect to any Senior Debt
are rescinded or must otherwise be returned upon the insolvency, bankruptcy,
reorganization or liquidation of the Company, the provisions of this Article 10
shall continue to be effective or reinstated, as the case may be, to the same
extent as though such payments had not been made.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, 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 one Business Day prior to the date of such payment, a Trust
Officer of the Trustee receives written notice in accordance with this Indenture
that payments may not be made under this Article 10. The Company, the Registrar
or co-registrar, the Paying Agent, a Representative or a holder of Senior Debt
may give the written notice; provided, however, that, if an issue of Senior Debt
has a Representative, only the Representative may give the written notice. If an
issue of debt has no Representative, the provider of notice shall state at the
time such notice is given that he is giving notice in lieu of such
Representative.
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The Trustee in its individual or any other capacity may hold
Senior Debt 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 11 with respect to any Senior Debt which may at any time be held by it,
to the same extent as any other holder of Senior Debt; and nothing in Article 7
shall deprive the Trustee of any of its rights as such a holder. Nothing in this
Article 10 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice of Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their Representative
(if any).
SECTION 10.11. Article 10 Not to Prevent Events of Default or
Limit Right to Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities, except as expressly set forth in Section 10.04.
SECTION 10.12. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
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 10.02
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
Securityholders or (iii) upon the Representatives for the holders of Senior Debt
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of the Senior Debt 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 10, 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 Debt to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such person, the extent to which such person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such person
under this Article 10, 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 subject to Section 10.15. The provisions
of Section 7.01 and 7.02 shall be applicable to all action or omissions of
actions by the Trustee pursuant to this Article 10.
SECTION 10.13. Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may
73
be necessary or appropriate to acknowledge or effectuate the subordination
between the Securityholders and the holders of Senior Debt as provided in this
Article 10 and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 10.14. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall
mistakenly (in the absence of gross negligence or wilful misconduct) pay over or
distribute to Securityholders or the Company or any other person, money or
assets to which any holders of Senior Debt shall be entitled by virtue of this
Article 10 or otherwise.
SECTION 10.15. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Securityholder 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
Debt, whether such Senior Debt 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 Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Benedek Communications Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
74
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Finance Trust Services
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 to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given only
when received.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.04. 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:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
75
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. 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
or by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee actually knows are so owned shall
be so disregarded. Also, subject to the foregoing, only Securities outstanding
at the time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 11.08. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by
76
reason of such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple 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. One signed copy is enough to
prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross- reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
77
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
BENEDEK COMMUNICATIONS CORPORATION,
by
-----------------------------------
Name:
Title:
Attest:
-------------------------------
IBJ XXXXXXXX BANK & TRUST COMPANY, as
Trustee,
by
------------------------------------
Name:
Title:
Attest:
---------------------------------
A-1
EXHIBIT A
TO INDENTURE
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS 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 DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY
THE INITIAL INVESTOR (1) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
A-2
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A)
ABOVE OR TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN
EACH CASE (A) AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES.
A-3
No. $[ ]
CUSIP:
11 1/2% Exchange Debenture Due 2008
BENEDEK COMMUNICATIONS CORPORATION, a Delaware corporation,
promises to pay to , or registered assigns, the principal sum of
[ ] Dollars on May 15, 2008.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Security are set forth on the
other side of this Security.
BENEDEK COMMUNICATIONS CORPORATION,
by
-------------------------
President
-------------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
IBJ Xxxxxxxx Bank & Trust Company,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
A-4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
BENEDEK COMMUNICATIONS CORPORATION
11 1/2% Exchange Debenture due 2008
1. Interest.
Benedek Communications Corporation, a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above; from the Exchange Date or from the most recent interest payment date to
which interest has been paid or provided for or, if no interest has been paid or
provided for, from the Exchange Date; provided, however, if (i) the applicable
Registration Statement is not filed with the SEC within 45 calendar days after
the Issue Date, (ii) unless the Exchange Offer would not be permitted by a
policy of the SEC, the Exchange Offer Registration Statement is not declared
effective within 90 calendar days after the Issue Date, (iii) neither the
Exchange Offer is consummated nor the Shelf Registration Statement is declared
effective within 120 calendar days after the Issue Date, or (iv) after a
Registration Statement is declared effective, such Registration Statement
thereafter ceases to be effective or usable (subject to certain exceptions) in
connection with resales of Transfer Restricted Securities during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then additional cash
interest will accrue on the Securities at a rate of 0.5% per annum from and
including the date on which any Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured calculated
on the principal amount of the Securities ("Liquidated Damages"). All accrued
Liquidated Damages will be paid by the Company in cash on the date interest is
payable for the Securities (the "Damages Payment Date"), to any holder of
Transfer Restricted Securities who has given wire transfer instructions to the
Company at least 10 Business Days prior to the Damages Payment Date by wire
transfer of immediately available funds and to all other holders of Transfer
Restricted Securities by mailing checks to their registered addresses. Following
the cure of all Registration Defaults, the accrual of Liquidated Damages will
cease.
The Company will pay interest semiannually in cash (or, on or
prior to May 15, 2003, in additional Securities at the option of the Company) in
arrears on each May 15 and November 15 commencing with the first such date after
the Exchange Date. 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 at the
rate borne by the Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
A-5
2. Method of Payment.
The Company will pay interest on the Securities (except
defaulted interest) to the persons who are registered holders of Securities at
the close of business on the May 1 or November 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will 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. Payments in respect of the Securities
represented by a Global Security (including principal and interest) will be made
by wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of the
Definitive Securities (including principal and interest), by mailing a check to
the registered address of each Holder thereof; provided, however, that payments
on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York
banking corporation ("Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to Holders. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Securities under an Exchange Indenture
dated as of _______, 199_ (the "Indenture"), between the Company and the
Trustee. 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. 'SS' 'SS' 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of those terms.
A-6
The Securities are general unsecured obligations of the
Company limited in the aggregate principal amount at maturity to the liquidation
preference of the Exchangeable Preferred Stock, plus, without duplication,
accumulated and unpaid dividends, on the Exchange Date (plus any additional
Exchange Debentures issued in lieu or cash interest) (subject to Section 2.07 of
the Indenture). The Indenture imposes certain limitations on the issuance of
additional debt by the Company and its Restricted Subsidiaries, the creation of
liens on the assets of the Company and its Restricted Subsidiaries, the Company
entering into sale and leaseback transactions, the issuance of debt and
preferred stock by its Restricted Subsidiaries (other than an encumbrance or
restriction with respect to distributions and dividends by Benedek Broadcasting
in connection with a senior bank financing), investments in certain affiliates,
the payment of dividends and other distributions and acquisitions or retirements
of the Capital Stock of the Company and Subordinated Obligations, the sale or
transfer of assets and Subsidiary stock, transactions with Affiliates, and
consolidations, mergers and transfers of all or substantially all of the
Company's assets. In addition, the Indenture limits the ability of the Company
and the Restricted Subsidiaries to restrict distributions and dividends from
Subsidiaries and requires the Company, under certain circumstances, to offer to
purchase Securities. The limitations are subject to a number of important
qualifications and exceptions.
5. Optional Redemption.
Except as set forth below, the Securities will not be redeemed
by the Company prior to May 15, 2003. Thereafter, the Securities will be
redeemable at the option of the Company in whole at any time or in part from
time to time at the following redemption prices (expressed in percentages of the
principal amount thereof) set forth below, plus, without duplication, accrued
and unpaid interest (if any) thereon to the redemption date, if redeemed during
the 12-month period beginning on May 15 of each of the years set forth below, at
the following redemption prices, plus, without duplication, in each case,
accrued and unpaid interest thereon to the date of redemption (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant interest payment date):
Year Percentage
---- -----------
2003 105.750%
2004 103.833%
2005 101.917%
2006 and thereafter 100.000%
Notwithstanding the foregoing, until May 15, 2001, the Company
may, at its option, redeem up to 25% of the aggregate of (i) the liquidation
preference of the Exchangeable Preferred Stock issued less the liquidation
preference of Exchangeable Preferred
A-7
Stock exchanged for Exchange Debentures and (ii) the principal amount of
Exchange Debentures issued, at 111.50% of the then effective principal amount,
with the net proceeds of one or more Public Equity Offerings or Strategic
Investments or a Required Disposition if at least $75,000,000 in principal
amount of the Securities remains outstanding after each such redemption;
provided, however, that such redemption occurs within 60 days of the date of the
closing of each such Public Equity Offering, Strategic Investment or Required
Disposition.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities having a principal amount larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If
money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions.
Upon a Change of Control, any Holder of Securities will have the
right to cause the Company to repurchase all or any part of the Securities of
such Holder at a repurchase price equal to 101% of the principal amount thereof
plus, without duplication, accrued interest, if any, to the date of repurchase
as provided in, and subject to the terms of, the Indenture.
8. Subordination.
The Securities are subordinated to Senior Debt. To the extent
provided in the Indenture, Senior Debt must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a Security
agrees, to the subordination provisions contained in Article 10 and authorizes
the Trustee to give them effect and appoints the Trustee as attorney-in-fact for
such purpose.
9. Denominations; Transfer; Exchange.
A-8
The Securities are in fully registered form without coupons
only in principal amounts of $1,000 and integral multiples thereof and also will
be issued in principal amounts less than $1,000 so that each holder of
Exchangeable Preferred Stock will receive certificates representing the entire
amount of the Securities to which such holders of shares of Exchangeable
Preferred Stock entitle such holder; provided, however, that the Company may pay
cash in lieu of issuing a Security in a principal amount less than $1,000,
(other than with respect to additional Securities issued in lieu of cash). A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners.
The registered holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee cash in U.S. dollars, U.S. Government
Obligations or a combination thereof that, through the payment of interest and
principal in respect thereof, will be sufficient, in the opinion of a nationally
recognized firm of independent public accounts, to pay principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
A-9
13. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least two-thirds in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of two-thirds in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change in Article 10 that would limit or terminate the benefits
available to any holder of Senior Debt (or Representatives therefor) under
Article 10, or to add Guarantees with respect to the Securities or to secure the
Securities, or to add additional covenants of the Company for the benefit of the
Holders or surrender rights and powers conferred on the Company or to comply
with any request of the SEC in connection with qualifying the Indenture under
the Act or to make any change that does not adversely affect the rights of any
Securityholder. Notwithstanding the foregoing, no amendment may be made to the
subordination provisions of the Indenture that adversely affects the rights of
any holder of Debt then outstanding unless the holders of such Debt (or their
Representative) consent to such change.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph
5, upon required repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply for 30 days after notice thereof with any of its obligations
under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09 or 4.10; (iv)
failure by the Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (v) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Debt of the Company, Benedek Broadcasting, BLC or a
Significant Subsidiary if the amount accelerated or so unpaid exceeds $5,000,000
and continues for 10 days; (vi) certain events of bankruptcy or insolvency with
respect to the Company, Benedek Broadcasting, BLC or a Significant Subsidiary;
(vii) certain judgments or decrees for the payment of money in excess of
$5,000,000 and (viii) failure by the Company, Benedek Broadcasting, BLC or a
Significant Subsidiary to maintain any License with respect to any Television
Station owned by it which License is necessary for the continued transmission of
such Television Station's normal programming and the Operating Cash Flow for the
most recently completed four fiscal quarters of the Company of such Television
Station exceeds 10% of the Operating Cash Flow
A-10
of the Company for such period. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the Securities
may declare the principal amount and accrued but unpaid interest on all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities being due
and payable immediately upon the occurrence of such Events of Default. In
addition, if an Event of Default occurs within 12 calendar months after the
issuance of the Securities and so long as such Event of Default is continuing
the Holders will have voting rights, after a 10-day period during which such
Default shall not have been cured or such acceleration rescinded, then the
number of directors constituting the Board of Directors will be adjusted to
permit the Holders of a majority of the then outstanding Securities voting
separately and as a class, to elect the lesser of two directors and that number
of directors constituting 25% of the members of the Board of Directors. Such
voting rights shall continue until such time as any failure, breach or Default
giving rise to such voting rights is remedied or waived by Holders of at least a
majority of the Securities then outstanding, at which time the term of any
directors elected pursuant to the provisions set forth above shall terminate.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in their interest.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the Act, 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 and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company or the Trustee, respectively under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder
A-11
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. Authentication.
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. 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 and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Governing Law.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
A-12
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture.
Requests may be made to:
Benedek Communications Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
A-13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: _____________________________ Your Signature: ____________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee: ___________________________________________________
(Signature must be guaranteed by an "eligible
guarantor institution" that is, a bank,
stockbroker, saving and loan association or
credit union meeting the requirements of the
Registrar, which requirements include
membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
The undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
(1) [ ] acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of the
Indenture); or
(2) [ ] transferred to the Company; or
(3) [ ] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as
amended; or
(4) [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933,
as amended; or
(5) [ ] transferred to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as
amended) and that the transferor is a
"subsequent investor" within the meaning of the
legend on the face of this Security; or
(6) [ ] transferred pursuant to another available
exemption from the registration requirements of
the Securities Act of 1933, as amended.
A-15
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (4), (5) or
(6) is checked, the Company or the Trustee may require evidence reasonably
satisfactory to them as to the compliance with the restrictions set forth in the
legend on the face of this Security.
________________________________
Signature
Signature Guarantee:________________________________________________
(Signature must be guaranteed by an "eligible
guarantor institution", that is, a bank ,
stockbroker, saving and loan association or
credit union meeting the requirements of the
Registrar, which requirements include
membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
A-16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 of the Indenture, state the
amount and check the box: $
[ ]
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
amount and check the box: $
[ ]
Date: __________________ Your Signature: ______________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:________________________________________________
(Signature must be guaranteed by an "eligible
guarantor institution", that is, a bank ,
stockbroker, saving and loan association or
credit union meeting the requirements of the
Registrar, which requirements include
membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
A-17
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount
Amount of Amount of at Maturity of Signature of
decrease in increase in this Global authorized
Principal Amount Principal Amount Security officer of
at Maturity of at Maturity of following such Trustee or
Date of this Global this Global decrease or Securities
Exchange Security Security increase Custodian
B-1
EXHIBIT B
TO INDENTURE
[FORM OF FACE OF EXCHANGE SECURITY]
No. $
CUSIP:
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS 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 DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.(1)
11 1/2% Exchange Debentures Series A Due 2008
BENEDEK COMMUNICATIONS CORPORATION, a Delaware corporation,
promises to pay to , or registered assigns, the principal sum
of Dollars on May 15, 2008.
--------
(1) This legend should only be added if the Security is issued in global form.
B-2
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1
Additional provisions of this Security are set forth on the
other side of this Security.
BENEDEK COMMUNICATIONS
CORPORATION,
by
-----------------------
President
-----------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
The IBJ Xxxxxxxx Bank &
Trust Company, as Trustee,
certifies that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
B-3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
BENEDEK COMMUNICATIONS CORPORATION
11 1/2% Exchange Debentures Series A due 2008
1. Interest.
Benedek Communications Corporation, a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above; from the Exchange Date or from the most recent interest payment date to
which interest has been paid or provided for or, if no interest has been paid or
provided for, from the Exchange Date; provided, however, if (i) the applicable
Registration Statement is not filed with the SEC within 45 calendar days after
the Issue Date, (ii) unless the Exchange Offer would not be permitted by a
policy of the SEC, the Exchange Offer Registration Statement is not declared
effective within 90 calendar days after the Issue Date, (iii) neither the
Exchange Offer is consummated nor the Shelf Registration Statement is declared
effective within 120 calendar days after the Issue Date, or (iv) after a
Registration Statement is declared effective, such Registration Statement
thereafter ceases to be effective or usable (subject to certain exceptions) in
connection with resales of Transfer Restricted Securities during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then additional cash
interest will accrue on the Securities at a rate of 0.5% per annum from and
including the date on which any Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured calculated
on the principal amount of the Securities ("Liquidated Damages"). All accrued
Liquidated Damages will be paid by the Company in cash on the date interest is
payable for the Securities (the "Damages Payment Date"), to any holder of
Transfer Restricted Securities who has given wire transfer instructions to the
Company at least 10 Business Days prior to the Damages Payment Date by wire
transfer of immediately available funds and to all other holders of Transfer
Restricted Securities by mailing checks to their registered addresses. Following
the cure of all Registration Defaults, the accrual of Liquidated Damages will
cease.
The Company will pay interest semiannually in cash (or, on or
prior to May 15, 2003, in additional Securities at the option of the Company) in
arrears on each May 15 and November 15 commencing with the first such date after
the Exchange Date. 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 at the
rate borne by the Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
B-4
2. Method of Payment.
The Company will pay interest on the Securities (except
defaulted interest) to the persons who are registered holders of Securities at
the close of business on the May 1 or November 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will 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. Payments in respect of the Securities
represented by a Global Security (including principal and interest) will be made
by wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of the
Definitive Securities (including principal and interest), by mailing a check to
the registered address of each Holder thereof; provided, however, that payments
on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York
banking corporation ("Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to Holders. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Securities under an Exchange Indenture
dated as of _______, 199_ (the "Indenture"), between the Company and the
Trustee. 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. 'SS' 'SS' 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of those terms.
B-5
The Securities are general unsecured obligations of the
Company limited in the aggregate principal amount at maturity to the liquidation
preference of the Exchangeable Preferred Stock, plus, without duplication,
accumulated and unpaid dividends, on the Exchange Date (plus any additional
Exchange Debentures issued in lieu or cash interest) (subject to Section 2.07 of
the Indenture). The Indenture imposes certain limitations on the issuance of
additional debt by the Company and its Restricted Subsidiaries, the creation of
liens on the assets of the Company and its Restricted Subsidiaries, the Company
entering into sale and leaseback transactions, the issuance of debt and
preferred stock by its Restricted Subsidiaries (other than an encumbrance or
restriction with respect to distributions and dividends by Benedek Broadcasting
in connection with a senior bank financing), investments in certain affiliates,
the payment of dividends and other distributions and acquisitions or retirements
of the Capital Stock of the Company and Subordinated Obligations, the sale or
transfer of assets and Subsidiary stock, transactions with Affiliates, and
consolidations, mergers and transfers of all or substantially all of the
Company's assets. In addition, the Indenture limits the ability of the Company
and the Restricted Subsidiaries to restrict distributions and dividends from
Subsidiaries and requires the Company, under certain circumstances, to offer to
purchase Securities. The limitations are subject to a number of important
qualifications and exceptions.
5. Optional Redemption.
Except as set forth below, the Securities will not be redeemed
by the Company prior to May 15, 2003. Thereafter, the Securities will be
redeemable at the option of the Company in whole at any time or in part from
time to time at the following redemption prices (expressed in percentages of the
principal amount thereof) set forth below, plus, without duplication, accrued
and unpaid interest (if any) thereon to the redemption date, if redeemed during
the 12-month period beginning on May 15 of each of the years set forth below, at
the following redemption prices, plus, without duplication, in each case,
accrued and unpaid interest thereon to the date of redemption (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant interest payment date):
Year Percentage
---- ----------
2003 105.750%
2004 103.833
2005 101.917
2006 and thereafter 100.000
Notwithstanding the foregoing, until May 15, 2001, the Company
may, at its option, redeem up to 25% of the aggregate of (i) the liquidation
preference of the Exchangeable Preferred
B-6
Stock issued less the liquidation preference of Exchangeable Preferred Stock
exchanged for Exchange Debentures and (ii) the principal amount of Exchange
Debentures issued, at 111.50% of the then effective principal amount, with the
net proceeds of one or more Public Equity Offerings or Strategic Investments or
a Required Disposition if at least $75,000,000 in principal amount of the
Securities remains outstanding after each such redemption; provided, however,
that such redemption occurs within 60 days of the date of the closing of each
such Public Equity Offering, Strategic Investment or Required Disposition.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities having a principal amount larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If
money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions.
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to 101% of the principal amount
thereof plus, without duplication, accrued interest, if any, to the date of
repurchase as provided in, and subject to the terms of, the Indenture.
8. Subordination.
The Securities are subordinated to Senior Debt. To the extent
provided in the Indenture, Senior Debt must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a Security
agrees, to the subordination provisions contained in Article 10 and authorizes
the Trustee to give them effect and appoints the Trustee as attorney-in-fact for
such purpose.
9. Denominations; Transfer; Exchange.
B-7
The Securities are in fully registered form without coupons
only in principal amounts of $1,000 and integral multiples thereof and also will
be issued in principal amounts less than $1,000 so that each holder of
Exchangeable Preferred Stock will receive certificates representing the entire
amount of the Securities to which such holders of shares of Exchangeable
Preferred Stock entitle such holder; provided, however, that the Company may pay
cash in lieu of issuing a Security in a principal amount less than $1,000,
(other than with respect to additional Securities issued in lieu of cash). A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners.
The registered holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee cash in U.S. dollars, U.S. Government
Obligations or a combination thereof that, through the payment of interest and
principal in respect thereof, will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
B-8
13. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least two-thirds in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of two-thirds in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change in Article 10 that would limit or terminate the benefits
available to any holder of Senior Debt (or Representatives therefor) under
Article 10, or to add Guarantees with respect to the Securities or to secure the
Securities, or to add additional covenants of the Company for the benefit of the
Holders or surrender rights and powers conferred on the Company or to comply
with any request of the SEC in connection with qualifying the Indenture under
the Act or to make any change that does not adversely affect the rights of any
Securityholder. Notwithstanding the foregoing, no amendment may be made to the
subordination provisions of the Indenture that adversely affects the rights of
any holder of Debt then outstanding unless the holders of such Debt (or their
Representative) consent to such change.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph
5, upon required repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply for 30 days after notice thereof with any of its obligations
under with Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09 or 4.10; (iv)
failure by the Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (v) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Debt of the Company, Benedek Broadcasting, BLC or a
Significant Subsidiary if the amount accelerated or so unpaid exceeds $5,000,000
and continues for 10 days; (vi) certain events of bankruptcy or insolvency with
respect to the Company, Benedek Broadcasting, BLC or a Significant Subsidiary;
(vii) certain judgments or decrees for the payment of money in excess of
$5,000,000 and (viii) failure by the Company, Benedek Broadcasting, BLC or a
Significant Subsidiary to maintain any License with respect to any Television
Station owned by it which License is necessary for the continued transmission of
such Television Station's normal programming and the Operating Cash Flow for the
most recently completed four fiscal quarters of the Company of such Television
Station exceeds 10% of the Operating Cash Flow
B-9
of the Company for such period. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the Securities
may declare the principal amount and accrued but unpaid interest on all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities being due
and payable immediately upon the occurrence of such Events of Default. In
addition, if an Event of Default occurs within 12 calendar months after the
issuance of the Securities and so long as such Event of Default is continuing
the Holders will have voting rights, after a 10-day period during which such
Default shall not have been cured or such acceleration rescinded, then the
number of directors constituting the Board of Directors will be adjusted to
permit the Holders of a majority of the then outstanding Securities voting
separately and as a class, to elect the lesser of two directors and that number
of directors constituting 25% of the members of the Board of Directors. Such
voting rights shall continue until such time as any failure, breach or Default
giving rise to such voting rights is remedied or waived by Holders of at least a
majority of the Securities then outstanding, at which time the term of any
directors elected pursuant to the provisions set forth above shall terminate.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in their interest.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the Act, 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 and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company or the Trustee, respectively under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder
B-10
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. Authentication.
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. 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 and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Governing Law.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
B-11
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture.
Requests may be made to:
Benedek Communications Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
B-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: _______________________ Your Signature: __________________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee: ______________________________________________
(Signature must be guaranteed by an "eligible
guarantor institution" that is, a bank,
stockbroker, saving and loan association or
credit union meeting the requirements of the
Registrar, which requirements include
membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.)
B-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 of the Indenture, state the
principal amount at maturity and check the box: $
[ ]
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
[ ]
B-14
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
principal amount at maturity and check the box: $
[ ]
Date: ________________________ Your Signature: ______________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:___________________________________________________
(Signature must be guaranteed by an
"eligible guarantor institution", that is, a
bank, stockbroker, saving and loan
association or credit union meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may
be determined by the Registrar in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.)
