Exhibit 4.44
EXECUTION COPY
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GRANITE BROADCASTING CORPORATION
TO
THE BANK OF NEW YORK,
Trustee
-----------------------------------
Indenture
Dated as of January 31, 1997
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$___________
12 3/4% SERIES A EXCHANGE DEBENTURES
DUE APRIL 1, 2009
12 3/4% EXCHANGE DEBENTURES
DUE APRIL 1, 2009
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GRANITE BROADCASTING CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- -------------
Section 310(a)(1) . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . Not
Applicable
(a)(4) . . . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . 610
Section 311(a) . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . 704
1017
(b) . . . . . . . . . . . . . . . Not
Applicable
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . Not
Applicable
(d) . . . . . . . . . . . . . . . Not
Applicable
(e) . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . 101
----------------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
-i-
Trust Indenture Indenture
Act Section Section
--------------- -------------
(a)(1)(A) . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . 107
-------------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
-ii-
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company. . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
7.75% Exchange Debenture Indenture . . . . . . . . . . 2
7.75% Exchange Debentures. . . . . . . . . . . . . . . 2
7.75% Exchangeable Preferred Stock . . . . . . . . . . 2
9 3/8% Note Indenture . . . . . . . . . . . . . . . . 2
9 3/8% Notes . . . . . . . . . . . . . . . . . . . . . 3
10 3/8% Note Indenture . . . . . . . . . . . . . . . 3
10 3/8% Notes . . . . . . . . . . . . . . . . . . . . 3
12.75% Debenture Indenture . . . . . . . . . . . . . . 3
12.75% Debentures . . . . . . . . . . . . . . . . . . 3
12 3/4% Exchangeable Preferred Stock . . . . . . . . . 3
Act . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Interest . . . . . . . . . . . . . . . . . 3
Affiliate. . . . . . . . . . . . . . . . . . . . . . . 3
Agent Bank . . . . . . . . . . . . . . . . . . . . . . 3
Asset Disposition . . . . . . . . . . . . . . . . . . 4
Attributable Value . . . . . . . . . . . . . . . . . . 4
Average Life . . . . . . . . . . . . . . . . . . . . . 5
Board of Directors . . . . . . . . . . . . . . . . . . 5
Board Resolution . . . . . . . . . . . . . . . . . . . 5
Business Day . . . . . . . . . . . . . . . . . . . . . 5
Capital Lease Obligation . . . . . . . . . . . . . . . 5
Capital Stock . . . . . . . . . . . . . . . . . . . . 5
Change of Control. . . . . . . . . . . . . . . . . . . 5
Commission . . . . . . . . . . . . . . . . . . . . . . 5
Common Stock . . . . . . . . . . . . . . . . . . . . . 6
Company. . . . . . . . . . . . . . . . . . . . . . . . 6
Company Request; Company Order . . . . . . . . . . . . 6
Consolidated Cash Flow . . . . . . . . . . . . . . . 6
Consolidated Income Tax Expense. . . . . . . . . . . . 6
Consolidated Interest Expense. . . . . . . . . . . . . 7
Consolidated Net Income . . . . . . . . . . . . . . . 7
---------------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-iii-
Page
Consolidated Subsidiaries. . . . . . . . . . . . . . . 7
Corporate Trust Office . . . . . . . . . . . . . . . . 8
corporation. . . . . . . . . . . . . . . . . . . . . . 8
Debt . . . . . . . . . . . . . . . . . . . . . . . . . 8
Defaulted Interest . . . . . . . . . . . . . . . . . . 8
Depositary . . . . . . . . . . . . . . . . . . . . . . 8
Designated Senior Debt . . . . . . . . . . . . . . . 8
Disqualified Stock . . . . . . . . . . . . . . . . . . 8
Event of Default . . . . . . . . . . . . . . . . . . . 8
Exchange Act . . . . . . . . . . . . . . . . . . . . . 8
Exchange Offer . . . . . . . . . . . . . . . . . . . . 8
Exchange Securities. . . . . . . . . . . . . . . . . . 8
Global Security . . . . . . . . . . . . . . . . . . . 9
Guarantee . . . . . . . . . . . . . . . . . . . . . . 9
Holder . . . . . . . . . . . . . . . . . . . . . . . . 9
Incur . . . . . . . . . . . . . . . . . . . . . . . . 10
Indenture. . . . . . . . . . . . . . . . . . . . . . . 10
Interest Payment Date. . . . . . . . . . . . . . . . . 10
Investment . . . . . . . . . . . . . . . . . . . . . . 10
Lien . . . . . . . . . . . . . . . . . . . . . . . . . 10
Local Marketing Agreement. . . . . . . . . . . . . . . 10
Major Asset Disposition . . . . . . . . . . . . . . . 11
Maturity . . . . . . . . . . . . . . . . . . . . . . . 11
Net Available Proceeds . . . . . . . . . . . . . . . 11
Offer to Purchase. . . . . . . . . . . . . . . . . . . 11
Officers' Certificate. . . . . . . . . . . . . . . . . 14
Opinion of Counsel . . . . . . . . . . . . . . . . . . 14
Outstanding. . . . . . . . . . . . . . . . . . . . . . 14
Paying Agent . . . . . . . . . . . . . . . . . . . . . 15
Payment Blockage Period . . . . . . . . . . . . . . . 15
Permitted Holder . . . . . . . . . . . . . . . . . . . 16
Permitted Television Investment. . . . . . . . . . . . 16
Person . . . . . . . . . . . . . . . . . . . . . . . . 16
Predecessor Security . . . . . . . . . . . . . . . . . 16
Preferred Stock . . . . . . . . . . . . . . . . . . . 16
Pro Forma Consolidated Cash Flow . . . . . . . . . . . 16
readily marketable cash equivalents. . . . . . . . . . 17
Redemption Date . . . . . . . . . . . . . . . . . . . 17
Redemption Price . . . . . . . . . . . . . . . . . . . 17
Regular Record Date. . . . . . . . . . . . . . . . . . 18
Responsible Officer. . . . . . . . . . . . . . . . . . 18
Rule 144A Securities . . . . . . . . . . . . . . . . . 18
Sale and Leaseback Transaction . . . . . . . . . . . . 18
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-iv-
Page
Second Step-Down Date . . . . . . . . . . . . . . . . 18
Second Step-Up . . . . . . . . . . . . . . . . . . . . 18
Securities . . . . . . . . . . . . . . . . . . . . . . 18
Securities Act . . . . . . . . . . . . . . . . . . . . 18
Securities Payment . . . . . . . . . . . . . . . . . . 18
Security Register; Security Registrar. . . . . . . . . 19
Senior Debt . . . . . . . . . . . . . . . . . . . . . 19
Senior Loan Agreement . . . . . . . . . . . . . . . 19
Senior Nonmonetary Default . . . . . . . . . . . . . . 19
Senior Payment Default . . . . . . . . . . . . . . . 19
Special Record Date. . . . . . . . . . . . . . . . . . 19
Stated Maturity. . . . . . . . . . . . . . . . . . . . 19
Step-Down Date . . . . . . . . . . . . . . . . . . . . 20
Step-Up . . . . . . . . . . . . . . . . . . . . . . . 20
Subordinated Debt. . . . . . . . . . . . . . . . . . . 20
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 20
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 20
Trust Indenture Act. . . . . . . . . . . . . . . . . . 21
Unrestricted Subsidiary. . . . . . . . . . . . . . . . 21
Vice President . . . . . . . . . . . . . . . . . . . . 22
Voting Stock . . . . . . . . . . . . . . . . . . . . . 22
Wholly Owned Subsidiary . . . . . . . . . . . . . . . 22
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 103. Form of Documents
Delivered to Trustee . . . . . . . . . . . . . . . . 23
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . 24
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . 26
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 27
SECTION 107. The Application of Trust
Indenture Act . . . . . . . . . . . . . . . . . . . . 28
SECTION 108. Effect of Headings and
Table of Contents . . . . . . . . . . . . . . . . . . 28
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . 28
---------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-v-
Page
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . 28
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . 28
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 29
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . 29
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . 30
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . 33
SECTION 204. Form of Trustee's
Certificate of Authentication. . . . . . . . . . . . . 38
ARTICLE THREE
The Securities
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . 39
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 303. Execution, Authentication,
Delivery and Dating. . . . . . . . . . . . . . . . . . 40
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . 42
SECTION 305. Registration, Registration of
Transfer and Exchange. . . . . . . . . . . . . . . . . 43
SECTION 306. Mutilated, Destroyed,
Lost and Stolen Securities . . . . . . . . . . . . . . . 45
SECTION 307. Payment of Interest;
---------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-vi-
Page
Interest Rights Preserved. . . . . . . . . . . . . . . 46
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 48
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 49
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and
Discharge of Indenture. . . . . . . . . . . . . . . . 49
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . 50
ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . 50
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . 53
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . 56
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 506. Application of Money Collected . . . . . . . . . . . . . 57
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . 57
--------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-vii-
Page
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 58
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . 58
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . 59
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . 59
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . 59
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 60
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 60
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . 60
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . 61
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . 61
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 61
SECTION 604. Not Responsible for Recitals
or Issuance of Securities. . . . . . . . . . . . . . . 63
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . 63
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . 64
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . 64
SECTION 608. Disqualification; Conflicting
Interests. . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . . . . . . . . . . . . . 65
-----------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-viii-
Page
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . 66
SECTION 611. Acceptance of Appointment by
Successor. . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business. . . . . . . . . . . . . . . 68
SECTION 613. Preferential Collection of
Claims Against Company . . . . . . . . . . . . . . . . 68
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . 68
SECTION 702. Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . 69
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . 69
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . 70
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates . . . . . . . . . . . . . . . 70
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets. . . . . . . . . . . . . . . . . . . . 70
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . 72
--------------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-ix-
Page
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 73
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . 74
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . 75
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . 75
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . 75
SECTION 906. Reference in Securities to
Supplemental Indentures. . . . . . . . . . . . . . . . 75
SECTION 907. Subordination Impaired . . . . . . . . . . . . . . . . . 76
SECTION 908. Other Amendments to the Indenture. . . . . . . . . . . . 76
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . 76
SECTION 1003. Money for Security Payments to
be Held in Trust . . . . . . . . . . . . . . . . . . . 77
SECTION 1004. Existence. . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . . . . . 79
SECTION 1006. Payment of Taxes and Other Claims. . . . . . . . . . . . 79
SECTION 1007. Maintenance of Insurance . . . . . . . . . . . . . . . . 80
-----------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-x-
Page
SECTION 1008. Limitation on Company Debt. . . . . . . . . . . . . . . . 80
SECTION 1009. Limitation on Certain Debt. . . . . . . . . . . . . . . . 82
SECTION 1010. Limitation on Restricted Payments . . . . . . . . . . . . 83
SECTION 1011. Limitations Concerning Distributions
by and Transfers to Subsidiaries. . . . . . . . . . . . 86
SECTION 1012. Limitation on Transactions with
Affiliates. . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1013. Limitation on Certain Asset
Dispositions. . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1014. Limitation on Issuances and Sales
of Capital Stock of Wholly
Owned Subsidiaries. . . . . . . . . . . . . . . . . . . 91
SECTION 1015. Limitation on Liens Securing
Company Subordinated Debt. . . . . . . . . . . . . . . 92
SECTION 1016. Limitation on Guarantees of
Company Subordinated Debt. . . . . . . . . . . . . . . 92
SECTION 1017. Change of Control . . . . . . . . . . . . . . . . . . . . 92
SECTION 1018. Provision of Financial Information. . . . . . . . . . . . 94
SECTION 1019. Statement by Officers as to Default . . . . . . . . . . . 94
SECTION 1020. Waiver of Certain Covenants . . . . . . . . . . . . . . . 95
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . . . . 95
SECTION 1102. Applicability of Article. . . . . . . . . . . . . . . . 95
SECTION 1103. Election to Redeem; Notice
----------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-xi-
Page
to Trustee. . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1104. Securities to Be Redeemed Pro Rata. . . . . . . . . . . . 96
SECTION 1105. Notice of Redemption. . . . . . . . . . . . . . . . . . . 97
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . . 98
SECTION 1107. Securities Payable on
Redemption Date . . . . . . . . . . . . . . . . . . . . 98
SECTION 1108. Securities Redeemed in Part . . . . . . . . . . . . . . . 99
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to
Senior Debt . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . . 99
SECTION 1203. No Payment When Senior Debt
in Default. . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 1204. Payment Permitted If No Default . . . . . . . . . . . . . 102
SECTION 1205. Subrogation to Rights of Holders
of Senior Debt . . . . . . . . . . . . . . . . . . . . 103
SECTION 1206. Provisions Solely to Define Relative
Rights. . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 1207. Trustee to Effectuate Subordination . . . . . . . . . . . 104
SECTION 1208. No Waiver of Subordination Provisions . . . . . . . . . . 104
SECTION 1209. Notice to Trustee . . . . . . . . . . . . . . . . . . . . 104
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . . . . . . . . . 105
---------------
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-xii-
Page
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt. . . . . . . . . . . . . . . . . . . . . . 106
SECTION 1212. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . 106
SECTION 1213. Article Applicable to Paying Agents . . . . . . . . . . . 106
SECTION 1214. Defeasance of this Article Twelve . . . . . . . . . . . . 107
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance
or Covenant Defeasance. . . . . . . . . . . . . . . . . 107
SECTION 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . 107
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . 108
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . 108
SECTION 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . . . . . 111
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . . . . . 113
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
-xiii-
INDENTURE, dated as of January 31, 1997 between Granite Broadcasting
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of up to
$350,000,000 aggregate principal amount of (A) its 12 3/4% Series A Exchange
Debentures due April 1, 2009 (the "Rule 144A Securities") and (B) its 12 3/4%
Exchange Debentures due April 1, 2009 (the "Exchange Securities" and,
collectively with the Rule 144A Securities, the "Securities") of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture. The Rule 144A
Securities and the Exchange Securities shall rank pari passu.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles (whether or not such is indicated herein) and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States as consistently applied
by the Company at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"7.75% Exchange Debenture Indenture" means the Indenture, to be
entered into between the Company and a Trustee to be designated by the Company.
"7.75% Exchange Debentures" means the 7.75% Junior Subordinated
Convertible Debentures due 2005 that the Company may issue pursuant to the 7.75%
Exchange Debenture Indenture at its election in exchange for the 7.75%
Exchangeable Preferred Stock in accordance with the terms of the 7.75%
Exchangeable Preferred Stock as such terms exist on the date of this Indenture.
"7.75% Exchangeable Preferred Stock" means the Company's Cumulative
Convertible Exchangeable Preferred Stock, par value $.01 per share, that is
outstanding on the date of this Indenture.
"9 3/8% Note Indenture" means the Indenture, dated as of February 22,
1996, between the Company and The Bank of New York, as Trustee, as such
Indenture exists on the date of this Indenture.
-2-
"9 3/8% Notes" means the 9 3/8% Senior Subordinated Notes due December
1, 2005 of the Company issued pursuant to the 9 3/8% Note Indenture and
outstanding on the date of this Indenture.
"10 3/8% Note Indenture" means the Indenture, dated as of May 19,
1995, between the Company and United States Trust Company of New York, as
Trustee, as such Indenture exists on the date of this Indenture.
"10 3/8% Notes" means the 10 3/8% Senior Subordinated Notes due May
15, 2005 of the Company issued pursuant to the 10 3/8% Note Indenture and
outstanding on the date of this Indenture.
"12.75% Debenture Indenture" means the Indenture, dated as of
September 1, 1992, between the Company and United States Trust Company of New
York, as Trustee, as such Indenture exists on the date of this Indenture.
"12.75% Debentures" means the 12.75% Senior Subordinated Debentures
due September 1, 2002 of the Company issued pursuant to the 12.75% Debenture
Indenture and outstanding on the date of this Indenture.
"12 3/4% Exchangeable Preferred Stock" means the Company's 12 3/4%
Cumulative Convertible Exchangeable Preferred Stock, par value $.01 per share,
that is outstanding on the date of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" has the meaning set forth in the form of
Security contained in Section 202. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Additional
Interest.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Bank" shall mean initially Bankers Trust Company or such
successor bank or financial institution
-3-
designated as such (or equivalent thereof) under the Senior Loan Agreement (or
any successor credit facility).
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Subsidiaries
(including a consolidation or merger of any such Subsidiaries with or into
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside of the ordinary
course of business. Asset Disposition shall not include a Sale and Leaseback
Transaction to the extent that the Attributable Value of such Sale and Leaseback
Transaction does not exceed $2,000,000 and the aggregate Attributable Value of
all such Sale and Leaseback Transactions entered into since the date of this
instrument and then outstanding does not exceed $5,000,000.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. Attributable Value means, as to a Capital Lease
Obligation under which any Person is at the time liable and at any date as of
which the amount thereof is to be determined, the capitalized amount thereof
that would appear on the face of a balance sheet of
-4-
such Person in accordance with generally accepted accounting principles.
"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 the
numbers of years from the date of determination to the dates of each successive
scheduled principal payments of such Debt multiplied by the amount of such
principal payments by (ii) the sum of all such principal payments.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York, New York are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation 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,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Change of Control" has the meaning specified in Section 1017.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
perform-
-5-
ing the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Cash Flow" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of (i) Consolidated
Interest Expense of such Person and its Consolidated Subsidiaries for such
period, plus (ii) Consolidated Income Tax Expense of such Person and its
Consolidated Subsidiaries for such period, plus (iii) the consolidated
depreciation and amortization expense included in the income statement of such
Person and its Consolidated Subsidiaries for such period, plus (iv) other
non-cash charges deducted from consolidated revenues of such Person and its
Consolidated Subsidiaries (other than amortization of film and program assets)
in determining Consolidated Net Income for such period, minus (v) non-cash items
added to consolidated revenues of such Person and its Consolidated Subsidiaries
in determining Consolidated Net Income for such period; provided, however,
Consolidated Cash Flow shall not include Consolidated Net Income and the items
specified in Clauses (i) through (iv) above to the extent attributable to a
Consolidated Subsidiary of such Person that is subject to restrictions
preventing the payment of dividends and the making of distributions (by loans,
advances, intercompany transfers or otherwise) to such Person, but shall include
such payments and distributions as could be made in accordance with such
restrictions.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income
-6-
taxes of such Person and its Consolidated Subsidiaries for such period.
"Consolidated Interest Expense" for any Person means for any period
the consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person and its Consolidated
Subsidiaries for such period, including without limitation or duplication (or,
to the extent not so included, with the addition of), (i) the portion of any
rental obligation in respect of any Capital Lease Obligation allocable to inter-
est expense in accordance with generally accepted accounting principles,
(ii) the amortization of Debt discounts, (iii) any payments or fees with respect
to letters of credit, bankers acceptances or similar facilities, (iv) fees with
respect to interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements other than fees or charges related to the
acquisition or termination thereof which are not allocable to interest expense
in accordance with generally accepted accounting principles, (v) Preferred Stock
dividends declared and payable in cash and (vi) accrued Disqualified Stock
dividends, whether or not declared or paid.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (i) the
net income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to the
date of such transaction, (ii) the net income (or loss) of any Person that is
not a Consolidated Subsidiary of such Person, (iii) gains or losses on Asset
Dispositions by such Person or its Consolidated Subsidiaries and (iv) all
extraordinary gains and extraordinary losses; and provided further that there
shall be added thereto, to the extent not otherwise included in Consolidated Net
Income, the amount of any dividends or other distributions actually paid to such
Person during such period by a Person that is not a Consolidated Subsidiary of
such Person.
"Consolidated Subsidiaries" of any Person means all other Persons that
would be accounted for as Consolidated Persons in such Person's financial
statements in accordance with generally accepted accounting principles;
provided, however, Consolidated Subsidiaries shall not include any Unrestricted
Subsidiary created in accordance with the definition of Unrestricted Subsidiary.
-7-
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, New York, at which at any
particular time its corporate trust business shall be administered, which at the
date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000.
"corporation" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar facil
ities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable, film contract rights or accrued liabil
ities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Disqualified Stock of such Person at the time of determination, and
(vii) every obligation of the type referred to in Clauses (i) through (vi) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, The Depository
Trust Company for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Company shall designate from time to time
in an Officers' Certificate delivered to the Trustee.
"Designated Senior Debt" has the meaning set forth in Section 1203.
"Disqualified Stock" means any Capital Stock of the Company or any
Subsidiary of the Company which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or otherwise
-8-
(including upon the occurrence of an event), matures or is required to be
redeemed (pursuant to a sinking fund obligation or otherwise) or is redeemable
at the option of the holder thereof, in whole or in part (other than a
redemption which is conditioned upon a change of control of the Company), on or
prior to the final Stated Maturity of the Securities, excluding, however, the
12 3/4% Exchangeable Preferred Stock and the 7.75% Exchangeable Preferred Stock.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the Security
contained in Section 202.
"Exchange Securities" means the exchange securities designated as such
in the first paragraph of the RECITALS OF THE COMPANY.
"Global Security" means the security or securities that evidences all
or part of the Securities and bears the legend set forth in Section 202.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain work
ing capital, equity capital or other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such Debt (and
"Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
-9-
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution to (by means of transfers
of cash or other property to others or payments for property or services for the
account or use of others, or otherwise), or purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities or evidences of Debt issued
by any other Person, including any payment on a Guarantee of any obligation of
such other Person.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Local Marketing Agreement" means any agreement pursuant to which the
Company or any of its Subsidiaries agrees to provide television management
services, television broadcasting or assets related to the provision of televi
sion broadcasting in exchange for cash payments and/or the right to charge
others for the provision of advertising or other services or products.
-10-
"Major Asset Disposition" means any Asset Disposition or series of
related Asset Dispositions involving assets with a fair market value in excess
of $2,000,000.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of accel
eration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition or issuance of
Capital Stock by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Debt or other obligations relating
to such properties or assets or received in any other noncash form) therefrom by
such Person, 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 as a consequence of such
Asset Disposition or issuance, (ii) all payments made by such Person or its
Subsidiaries on any Debt which is secured by such assets in accordance with the
terms of any Lien upon or with respect to such assets or which must by the terms
of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or issuance or by applicable law be repaid out of the proceeds from
such Asset Disposition or issuance, (iii) all distributions and other payments
made to minority interest holders in Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition, and (iv) reserves established in
accordance with generally accepted accounting principles against any liabilities
associated with such assets and retained by such Person or any Subsidiary
thereof, as the case may be, after such Asset Disposition, including, without
limitation, liabilities under any indemnification obligations and severance and
other employee termination costs associated with such Asset Disposition, in each
case as determined by the Board of Directors, in its reasonable good faith
judgment evidenced by a Board Resolution; provided, however, that any reduction
in such reserve following the consummation of such Asset Disposition will be
treated for all purposes of this Indenture and the Securities as a new Asset
Disposition at the time of such reduction with Net Available Proceeds equal to
the amount of such reduction.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage
-11-
prepaid, to each Holder at its address appearing in the Security Register on the
date of the Offer, offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Offer Expiration Date") of the Offer to Purchase which shall be, subject
to any contrary requirements of applicable law, not less than 30 days or more
than 60 days after the date of such Offer and a settlement date (the "Purchase
Date") for the purchase of Securities within five Business Days after the Offer
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable such Holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum will include
(i) the most recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the documents required to be filed with the Trustee pursuant to
Section 1018 of this Indenture (which requirements may be satisfied by delivery
of such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase, and
(iv) any other information required by applicable law to be included therein).
The Offer shall contain all instructions and materials necessary to enable such
Holder to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which
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such has been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture);
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Offer Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied
by a written instrument of transfer in form reasonably satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion
of Securities tendered if the Company (or its Paying Agent) receives,
not later than the close of business on the Offer Expiration Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such
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Holder is withdrawing all or a portion of such tender;
(11) that (i) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Securities and (ii) if Securities in an aggregate
principal amount in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Securities having an aggregate principal amount equal to the
Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Securities in denominations of $1,000
or integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall authen
ticate and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
applicable securities laws and regulations and the Offer for such Offer to
Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secre
tary, of the Company, and delivered to the Trustee and containing the statements
provided for in Section 102. One of the officers signing an Officers'
Certificate given pursuant to Section 1019 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee, and
containing the statements provided for in Section 102.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning specified in Section 1203.
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"Permitted Holder" has the meaning set forth in Section 1017.
"Permitted Television Investment" means an Investment in any Person
which is a Restricted Payment within the meaning of either Clause (iii) or (v)
of Section 1010 (i) with which the Company has entered into a Local Marketing
Agreement or (ii) (a) for the purpose of facilitating the delivery by the
Company or any of its Subsidiaries of advanced television service, including
high definition television, or interactive television or (b) to otherwise permit
the Company or any of its Subsidiaries to exploit any other emerging
technologies relating to television broadcasting. For purposes of calculating
the aggregate amount of outstanding Permitted Television Investments, any
Investment (a) in a Person which, subsequent to such Investment, becomes a
Wholly Owned Subsidiary of the Company, or (b) that otherwise, due to a change
in the status of such Person, would not, if then made, be deemed a Restricted
Payment, shall no longer be deemed outstanding as of the date such Person
becomes a Wholly Owned Subsidiary or otherwise changes its status, as the case
may be.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Pro Forma Consolidated Cash Flow" of any Person means for any period
the Consolidated Cash Flow for such period; provided that, in the event such
Person or its Subsidiaries has made Asset Dispositions or acquisitions of
assets, properties or franchises not in the ordinary course of business
(including acquisitions of other Persons by
-16-
merger, consolidation or purchase of Capital Stock) or has permitted an
encumbrance or restriction pursuant to Section 1011 during or after such period,
such computation shall be made on a pro forma basis (whether the acquisition is
treated as a purchase or a pooling under generally accepted accounting
principles) as if the Asset Dispositions or acquisitions or restrictions or
encumbrances had taken place on the first day of such period. If, during or
after the period for which such calculation is made, the Person or any of its
Subsidiaries has acquired or disposed of a television or radio broadcasting or
cable television franchise that does not constitute an existing business
(whether existing as a separate entity, subsidiary, division, unit or other
wise), the pro forma effect of such acquisition or disposition shall be deemed
to be the Consolidated Cash Flow attributable to such franchise (or a reasonable
estimate thereof) for the period for which such calculation is made prior to
such acquisition or disposition; provided that such estimated Consolidated Cash
Flow shall be determined on the basis of comparable franchises, evidenced in a
Board Resolution and reported on by a nationally recognized accounting firm.
"readily marketable cash equivalents" means (i) marketable securities
issued or directly and unconditionally guaranteed by the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof and, at the time of acquisition,
having the highest rating obtainable from either Standard & Poor's Ratings Group
or Xxxxx'x Investors Service, Inc.; (iii) commercial paper maturing no more than
180 days from the date of acquisition thereof and, at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's Ratings Group or at least
P-1 from Xxxxx'x Investors Service, Inc.; and (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia having
unimpaired capital and surplus of not less than $100,000,000.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Corporate Trust Office of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Rule 144A Securities" means the Rule 144A securities designated as
such in the first paragraph of the RECITALS OF THE COMPANY.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 270 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Second Step-Down Date" has the meaning set forth in the form of
Security contained in Section 202.
"Second Step-Up" has the meaning set forth in the form of Security
contained in Section 202.
"Securities" means the Exchange Securities and the Rule 144A
Securities designated as such in the first paragraph of the RECITALS OF THE
COMPANY.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Payment" has the meaning set forth in Section 1202.
18
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means (a) the principal of (premium, if any) 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
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, Debt outstanding pursuant to the Senior Loan Agreement,
(b) payment obligations of the Company under interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements, in each
case entered into to hedge Debt Incurred under the Senior Loan Agreement or any
renewal, refunding, refinancing or extension thereof, (c) all other Debt for
money borrowed of the Company referred to in the definition of Debt other than
Clause (vi) and (d) all renewals, extensions, modifications, refinancings,
refundings and amendments of any Debt referred to in Clause (a), (b) or (c)
above, unless but only to the extent, in the case of any particular Debt
referred to in Clause (a), (b) or (c) above, (A) such Debt is owed to a
Subsidiary of the Company, (B) the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such Debt is
not superior in right of payment to the Securities, (C) such Debt is Incurred in
violation of the Indenture, or (D) such Debt is subordinate in right of payment
in respect to any other Debt of the Company.
"Senior Loan Agreement" means the Second Amended and Restated Credit
Agreement, dated as of May 19, 1995, by and among the Company, the Banks named
therein and Bankers Trust Company, as Agent, as it may be amended, restated or
modified from time to time.
"Senior Nonmonetary Default" has the meaning specified in
Section 1203.
"Senior Payment Default" has the meaning specified in Section 1203.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
19
"Step-Down Date" has the meaning set forth in the form of the Security
contained in Section 202.
"Step-Up" has the meaning set forth in the form of the Security
contained in Section 202.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of
(or premium, if any) or interest on or otherwise due in respect of such Debt may
be permitted for so long as any default in the payment of principal (or premium,
if any) or interest on the Securities exists; and (ii) in the event that any
other default that with the passing of time or the giving of notice, or both,
would constitute an event of default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice. Notwithstanding the foregoing, the 7.75% Exchange Debentures shall
constitute Subordinated Debt unless and until the subordination provisions
thereof are amended or modified after the date of this Indenture.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof. Subsidiary shall not include an Unrestricted
Subsidiary created in accordance with the definition of Unrestricted Subsidiary.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
20
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as such
by the Board of Directors as set forth below where (a) neither the Company nor
any of its other Subsidiaries (other than another Unrestricted Subsidiary) (i)
provides credit support for, or Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any Debt of such Subsidiary, and (b)
no default with respect to any Debt of such Subsidiary (including any right
which the holders thereof may have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Debt of the Company and its other Subsidiaries (other than another
Unrestricted Subsidiary) to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity, (2) any Subsidiary of the Company (other than a Subsidiary existing as
of the date of this Indenture or successor to any such Subsidiary) which at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Board of Directors, as provided below) and (3) any Subsidiary of an Unrestricted
Subsidiary where Clauses (a) and (b) are true with respect to such Subsidiary.
The Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; provided that either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) immediately after giving effect to such
designation, the ratio of the aggregate principal amount of Debt of the Company
and its Subsidiaries outstanding as of the most recent available balance sheet
to Pro Forma Consolidated Cash Flow for the preceding four full fiscal quarters,
determined on a pro forma basis as if such Subsidiary had been an Unrestricted
Subsidiary at the beginning of such four fiscal quarters, would be less than 6.5
to 1. The Board of Directors may designate any Unrestricted Subsidiary to be a
Subsidiary; provided that immediately after giving effect to such designation,
the ratio of the aggregate principal amount of Debt of the Company and its
Subsidiaries outstanding as of the most recent available
21
balance sheet to Pro Forma Consolidated Cash Flow for the preceding four full
fiscal quarters, determined on a pro forma basis as if such Unrestricted
Subsidiary had been a Subsidiary at the beginning of such four fiscal quarters,
would be less than 6.5 to 1. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act and under this Indenture. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion
has read
22
such covenant or condition and the definitions herein relating thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate of an officer of the Company may be based, insofar as
it relates to legal matters, upon an opinion of counsel submitted therewith,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which his certificate is based
is erroneous. Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of an officer or officers of the Company
submitted therewith stating the information on which counsel is relying, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments
23
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
24
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities; provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Xxxxxxx 000, (xxx) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
25
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document
26
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if delivered in writing to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee Administration,
or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
27
SECTION 107. The Application of Trust Indenture Act.
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of the Senior Debt (subject to Article Twelve hereof) and
the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
28
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Purchase
Date or at the Stated Maturity; provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Rule 144A Securities, the Exchange Securities and the Trustee's
certificates of authentication thereof shall be in substantially the forms set
forth in this Article, with such appropriate legends, insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
29
SECTION 202. Form of Face of Security.
[If a Global Security, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security to be held by The Depository Trust Company, then
insert -- Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[If Rule 144A Securities, then insert -- THE SECURITIES EVIDENCED
HEREBY HAVE 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 A HOLDER WHO WAS AN INITIAL INVESTOR IN THE 12 3/4%
CUMULATIVE EXCHANGEABLE PREFERRED STOCK OF THE COMPANY, (1) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING 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 TRANSACTION COMPLYING WITH RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) AND (B) BY OTHER HOLDERS, AS SET FORTH IN (A) ABOVE, OR TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501 OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) AND, IN EACH CASE (A) AND
(B), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. SECURITIES OWNED BY AN INITIAL INVESTOR
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR DID NOT ACQUIRE SUCH SECURITIES
IN AN OFFSHORE TRANSACTION COMPLYING WITH
30
RULE 904 OF REGULATION S MAY NOT BE HELD IN BOOK-ENTRY FORM AND MAY NOT BE
TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.]
[If Rule 144A Securities, then insert -- 12 3/4% Series A Exchange
Debentures due April 1, 2009]
[If Exchange Securities, then insert -- 12 3/4% Exchange Debentures
due April 1, 2009]
No. __________ $________
CUSIP No. ________
Granite Broadcasting Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________ _________, or registered
assigns, the principal sum of _____________________ Dollars on April 1, 2009,
and to pay interest thereon from January 31, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on April 1 and October 1 in each year, commencing April 1, 1997,
at the rate of 12 3/4% per annum, until the principal hereof is paid or made
available for payment [If Rule 144A Securities, then insert -- provided,
however, that if (i) the Company has not filed a registration statement (the
"Exchange Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), registering a security substantially identical to this
Security pursuant to an exchange offer (the "Exchange Offer") by April 16, 1997,
or (ii) the Exchange Registration Statement relating to the Exchange Offer (or,
in lieu thereof, a registration statement registering this Security for resale
(a "Resale Registration Statement")) has not become or been declared effective
by June 30, 1997 or (iii) the Exchange Offer has not been consummated within 30
business days after the date on which the Exchange Registration Statement has
become or been declared effective initially or (iv) either the Exchange
Registration Statement or, if applicable, the Resale Registration Statement is
filed and declared effective but shall thereafter cease to be effective (except
as specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective, in each case (i)
through (iv) upon the terms and conditions set forth in the Exchange and
Registration Rights Agreement dated as of January 31, 1997, by and between the
Company and the Holders from time to time of the Securities (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the per
annum interest rate borne by the Securities shall increase
31
(the "Step-Up") by 0.5% per annum until such time (the "Step-Down Date") as no
Registration Default is in effect (after which such interest rate will be
restored to its initial rate) and provided, further, that if either the Exchange
Offer has not been consummated or, if applicable, the Resale Registration
Statement has not become or been declared effective, in each case by October 28,
1997, then the per annum rate of the Securities shall increase (the "Second
Step-Up") by an additional 0.5% per annum until such time (the "Second Step-Down
Date") as the Company consummates the Exchange Offer or, if applicable, the
Resale Registration Statement becomes or has been declared effective (after
which such interest rate will be restored to its initial rate). Interest
accruing as a result of the Step-Up or the Second Step-Up is referred to herein
as "Additional Interest." Accrued Additional Interest shall be paid
semi-annually on the Interest Payment Dates; and the amount of accrued
Additional Interest shall be determined on the basis of the number of days
actually elapsed. Any accrued and unpaid interest (including Additional
Interest) on this Security upon the issuance of an Exchange Security in exchange
for this Security shall cease to be payable to the Holder hereof but such
accrued and unpaid interest (including Additional Interest) shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date].
On any Interest Payment Date for this Security on or prior to April 1,
2002, the Company may, in lieu of payment of interest in cash, pay such interest
(i) in additional Securities having a principal amount equal to the cash
interest otherwise payable or (ii) a combination of cash and additional
Securities. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be
32
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, New York, in
additional Securities or such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of cash
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
GRANITE BROADCASTING CORPORATION
By______________________________
Attest:
______________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its [If Rule 144A Securities, then insert -- 12 3/4%
Series A Exchange Debentures due April 1, 2009 (the "Rule 144A Securities")
issued under an Indenture, dated as of January 31, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee",
33
which term includes any successor trustee under the Indenture), together with
the 12 3/4% Exchange Debentures due April 1, 2009 of the Company (the "Exchange
Securities" and, collectively with the Rule 144A Securities, the "Securities")]
[If Exchange Securities, then insert -- 12 3/4% Exchange Debentures due April 1,
2009 (the "Exchange Securities") issued under an Indenture, dated as of January
31, 1997 (herein called the "Indenture"), between the Company and The Bank of
New York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), together with the 12 3/4% Series A
Exchange Debentures due April 1, 2009 of the Company (the "Rule 144A Securities"
and, collectively with the Exchange Securities, the "Securities"]. The
Securities are limited in aggregate principal amount to $350,000,000. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of the Senior Debt (as defined in the Indenture) and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail in the event that on or before April 1, 2000
the Company receives net proceeds from any Major Asset Disposition or sale of
its Capital Stock (other than Disqualified Stock) in one or more offerings, in
which case the Company may, at its option and from time to time, use all or a
portion of any such net proceeds to redeem Securities in a principal amount of
up to an aggregate of $75,000,000; provided, however, that Securities in an
amount equal to at least $75,000,000 remain outstanding after each such
redemption. Any such redemption must occur on a Redemption Date within 90 days
of any such sale at a Redemption Price of 112.75% of the principal amount of the
Securities plus accrued interest to but excluding the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
In addition, the Securities are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time on or after April 1,
2002, as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount), if
redeemed during the 12-month period beginning April 1 of each of the years
indicated below:
34
Redemption
Year Price
---- ----------
2002.......................... 106.375%
2003.......................... 104.250%
2004.......................... 102.125%
2005.......................... 100.000%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if (i) a
Change of Control (as defined in the Indenture) occurs or (ii) certain Net
Available Proceeds are available to the Company as a result of any Asset
Disposition, the Company shall be required to make an Offer to Purchase for all
or a specified portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of like
tenor for the unredeemed or unpurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
The Exchange Securities and the Rule 144A Securities shall rank pari passu.
35
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Security, (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein or (iii) the subordination
provisions contained in the Indenture.
Unless the context otherwise requires, the Rule 144A Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the form, coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, duly endorsed by,
36
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Exchange Securities are issuable only in registered form without
coupons in denominations of $1.00 and any integral multiple thereof, and the
Rule 144A Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple of $1.00 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like tenor and aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles thereof.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months; provided, however, that Additional Interest shall
be computed on the basis of a 365- or 366-day year, as the case may be, and the
number of days actually elapsed.
37
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 1013 or 1017 of the Indenture, check the box:
/ /
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Sections 1013 or 1017 of the Indenture, state the
amount: $___________
Dated:________________ Your Signature:____________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:________________________________________
Signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Security Registrar, which requirements
include membership or participation in the
Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee
program" as may be determined by the Security
Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
SECTION 204. Form of Trustee's Certificate of
Authentication.
Dated:____________________
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By ____________________
Authorized Signatory
38
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $350,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1013 or 1017. The Company may issue Securities or Exchange Securities
from time to time pursuant to an Exchange Offer or otherwise, in each case
pursuant to a Board Resolution, subject to Section 303, included in an Officers'
Certificate delivered to the Trustee, in authorized denominations in exchange
for a like principal amount of Rule 144A Securities. Upon any such exchange the
Rule 144A Securities shall be cancelled in accordance with Section 309 and shall
no longer be deemed Outstanding for any purpose. In no event shall the aggre
gate principal amount of Rule 144A Securities and Exchange Securities
Outstanding exceed $350,000,000.
he Rule 144A Securities shall be known and designated as the "12 3/4%
Series A Exchange Debentures due April 1, 2009" of the Company and the Exchange
Securities shall be known and designated as the "12 3/4% Exchange Debentures due
April 1, 2009" of the Company. The Stated Maturity of the Securities shall be
April 1, 2009. The Securities shall bear interest at the rate of 12 3/4% per
annum (subject, in the case of the Rule 144A Securities, to increase at the rate
of 0.50% or 1.00% per annum, as provided in such Security), from January 31,
1997 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable semi-annually on April 1
and October 1 until the principal thereof is paid or made available for payment.
On any Interest Payment Date for any Security on or prior to April 1, 2002, the
Company may, in lieu of payment of interest in cash, pay such interest (i) in
additional Securities having a principal amount equal to the cash interest
otherwise payable or (ii) a combination of cash and additional Securities.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Company for
39
such purpose; provided, however, that at the option of the Company payment of
cash interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1013 and 1017 of the Indenture.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subordinated in right of payment of Senior
Debt as provided in Article Twelve and the Rule 144A Securities and the Exchange
Securities shall rank pari passu.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
Unless the context otherwise requires, the Rule 144A Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
SECTION 302. Denominations.
The Rule 144A Securities shall be issuable only in registered form
without coupons and only in denominations of $100,000 and any integral multiple
of $1.00 in excess thereof and the Exchange Securities shall be issuable only in
registered form without coupons and only in denominations of $1.00 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
40
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of an Exchange Registration Statement
or a Resale Registration Statement under the Securities Act with respect
thereto, the Company may deliver Exchange Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Exchange Securities and a like principal
amount of Rule 144A Securities for cancellation in accordance with Section 309
of this Indenture, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. In authenticating such Exchange
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Exchange Securities has been established by
or pursuant to Board Resolution as permitted by Section 301, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Exchange Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that such Exchange Securities have been duly and validly issued
in accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein;
41
(d) that all conditions precedent to the authentication and delivery
of such Exchange Securities have been complied with and that such Exchange
Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles; and
(e) that the issuance of the Exchange Securities in exchange for the
Rule 144A Securities has been effected in compliance with the Securities
Act of 1933, as amended.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Exchange Securities if the issue of such Exchange
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Exchange Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
42
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like tenor and principal amount of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. Such Security Register shall
distinguish between Rule 144A Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like tenor and aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid
43
obligations of the Company, evidencing the same debt, and (subject to the
provisions in the Rule 144A Securities regarding the payment of Additional
Interest) entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1108 or in accordance with any
Offer to Purchase pursuant to Section 1013 and 1017 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
All Rule 144A Securities initially issued hereunder shall, upon
issuance, bear the legend specified in Section 202 to be applied to such a
Security and such required legend shall not be removed unless the Company shall
have delivered to the Trustee (and the Securities Registrar, if other than the
Trustee) a Company Order which states that the Security may be issued without
such legend thereon. If such legend required for a Rule 144A Security has been
removed from a Security as provided above, no other Security issued in exchange
for all or any part of such Security shall bear such legend, unless the Company
has reasonable cause to believe that such other Security is a "restricted
security" within the meaning of Rule 144 and instructs the Trustee to cause a
legend to appear thereon.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
44
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee thereof and
delivered to the Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary or a nominee
thereof unless (A) Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act,
(B) there shall have occurred and be continuing an Event of Default with
respect to the Securities evidenced by such Global Security or (C) the
Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable and the transfer thereof so
registrable.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906,
1013, 1017 or 1108 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
45
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. On any
Interest Payment Date for any Security on or prior to April 1, 2002, the Company
may, in lieu of payment of interest in cash, pay such interest (i) in additional
Securities having a principal amount equal to
46
the cash interest otherwise payable or (ii) a combination of cash and additional
Securities.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee 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 Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor
47
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or pursuant to any Offer to Purchase pursuant to Section
1013 or 1017 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in
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any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Securities held by
the Trustee shall be disposed of as directed by a Company Order; provided,
however, that the Trustee may, but shall not be required to, destroy such
cancelled Securities.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months; provided, however, that Additional
Interest on Rule 144A Securities shall be computed on the basis of a 365- or
366-day year, as the case may be, and the number of days actually elapsed.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money
shall have been deposited
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with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be 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):
(1) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) default in the payment of principal and interest pursuant to an
Offer to Purchase pursuant to Sections 1013 or 1017; or
(4) default in the performance, or breach, of Section 801; or
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(5) default in the performance, or breach, of clause (i) or (ii) of
Section 1017(d); or
(6) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(7) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of indebtedness by the Company or any Subsidiary of
the Company or under any mortgage(s), indenture(s) or instrument(s) under
which there may be issued or by which there may be secured or evidenced
any indebtedness of such type by the Company or any such Subsidiary with
a principal amount then outstanding, individually or in the aggregate, in
excess of $4 million, whether such indebtedness now exists or shall
hereafter be created, which default or defaults shall constitute a
failure to pay in excess of $4 million of the principal of such
indebtedness when due at the final maturity thereof (which, for purposes
of the Senior Loan Agreement or any successor credit facility shall not
include any interim amortization payment on any term indebtedness prior
to the final maturity of such term indebtedness), or shall have resulted
in excess of $4 million of indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due
and payable; or
(8) a final judgment or final judgments for the payment of money
are entered against the Company or any Subsidiary in an aggregate amount
in excess of $1 million by a court or courts of competent jurisdiction,
which judgments remain undischarged or unbonded for a period (during
which execution shall not be effectively stayed) of 60 days after the
right to appeal all such judgments has expired; or
(9) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any of its
Subsidiaries in an
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involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any of its Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company or any of its Subsidiaries under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any of
its Subsidiaries or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(10) the commencement by the Company or any of its Subsidiaries of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in respect
of the Company or any of its Subsidiaries in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any of its Subsidiaries or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any of its
Subsidiaries in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(9) or (10)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
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Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 501(9) or (10) occurs, the principal of and any
accrued interest on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made
by the Company) and interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) and on any overdue interest,
at the rate provided by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed
in any such proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys, securities or other property payable or
deliverable upon the exchange of the Securities or upon any such claims and
to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disburse ments and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal (or premium, if any) or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the extent provided in Article Twelve, to the holders of
Senior Debt in accordance with Article Twelve; and
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided
to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer and, if requested, provision of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 508. Unconditional Right of Holders
to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to Sec
tion 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required
to be accepted as to such Security, on the Purchase Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or expose the Trustee to personal liability (as
determined in the sole discretion of the Trustee), and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities by
written notice to the Trustee waive any past default hereunder and its conse
quences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been made
by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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, suffered
or omitted by it as Trustee, a court may require any party litigant in such
suit to file an undertaking to pay the costs of such suit, and may assess
costs, including reasonable counsel fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Trustee or the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will 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
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expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by this Indenture and the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly so
provided, 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.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(5),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
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xxxx, xxxxxxxxx, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction reasonably satisfactory to the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either
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directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in accordance with the
direction of Holders of Outstanding Securities as provided in Sections
502, 512 and 513 hereof;
(i) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(j) for all purposes under this Indenture, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may other wise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or wilful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Company (including, without
limitation, this Section 607) and of defending itself against any claim
(whether asserted by any Holder or the Company) or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The provisions of this Section 607 shall survive any
termination of this Indenture and the resignation or removal of the
Trustee.
As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the Securities
upon all property and
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funds held or collected by the Trustee, except funds held in trust for the
payment of principal of (and premium, if any) or interest on particular
Securities. The Trustee's right to receive payment of any amounts due under
this Section 607 shall not be subordinate to any other liability or
indebtedness of the Company (even though the Securities may be so
subordinated), except that such rights of the Trustee under this Section 607
shall be subordinated in right and time of payment to the payment in full of
all obligations of the Company under the Senior Loan Agreement including,
without limitation, the payment of all principal, interest, fees and expenses
thereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(9) or Section 501(10), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency
or other similar law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office in the Borough of Manhattan, The City of New York, New
York. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
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SECTION 610. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611, at
which time the retiring Trustee shall be fully discharged from its
obligations hereunder. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of notice of resignation or removal, the Trustee resigning or being removed
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on request of the Company or the suc cessor Trustee, such retiring Trustee
shall, upon payment of all sums owing to the Trustee under Section 607,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided that such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613. Preferential Collection
of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and ad-
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dresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed
with the Commission.
Delivery of such reports, information and documents to the Trustee
shall be 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 705. Officers' Certificate with Respect
to Change in Interest Rates.
Within five days after any Step-Up, a Second Step-Up or Step-Down
Date, the Company shall deliver an Officers' Certificate to the Trustee
stating the new interest rate and the date on which it became effective.
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets.
The Company (i) shall not consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the
Company or any Subsidiary of the Company in a transaction in which such
Subsidiary
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remains a Subsidiary of the Company and (ii) shall not, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety, unless, in any
such transaction specified in Clause (i) or (ii):
(1) immediately after giving effect to such transaction and
treating any Debt that becomes an obligation of the Company or a
Subsidiary of the Company, as a result of such transaction, as having
been Incurred by the Company or such Subsidiary at the time of the
transaction, no Event of Default, and no event that, with the passing of
time or the giving of notice, or both, would become an Event of Default,
shall have occurred and be continuing;
(2) in case the Company shall consolidate with or merge with or
into another Person or shall directly or indirectly transfer, convey,
sell, lease or otherwise dispose of all or substantially all of its
properties or assets as an entirety, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by transfer, con veyance, sale, lease or otherwise the assets
of the Company substantially as an entirety (for purposes of this
Section 801, a "Successor Company") shall be a corporation, partnership,
or trust and shall be organized and validly existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(3) immediately after giving effect to such transaction, the
Company or, if applicable, the Successor to the Company would have a
ratio of aggregate principal amount of Debt of the Company and its
Subsidiaries outstanding as of the most recent available balance sheet
to Pro Forma Consolidated Cash Flow for the preceding four fiscal
quarters, determined on a pro forma basis as if such transaction had
taken place and the proceeds therefrom had been applied at the beginning
of such four fiscal quarters, of less than 6.5 to 1;
(4) if, as a result of any such transaction, property and assets
of the Company or any Subsidiary of
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the Company would become subject to a Lien which would not be permitted
by Section 1015, the Company or, if applicable, the Successor Company,
as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior
to) Debt secured by such Lien; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance
satisfactory to the Trustee stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and, with respect to such Officers'
Certificate, setting forth the manner of determination of the Pro Forma
Consolidated Cash Flow in accordance with Clause (3) of Section 801, of
the Company or, if applicable, of the Successor Company as required
pursuant to the foregoing.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company with or into, any other Person or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.
At any time after any Securities have been issued under this
Indenture, without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) 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; or
(3) to secure the Securities pursuant to the requirements of
Section 1015 or otherwise; or
(4) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to comply with any
requirement of the Commission in order to effect qualification of this
Indenture under the Trust Indenture Act in connection with the issuance
of Exchange Securities or thereafter to maintain the qualification of
this Indenture under the Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture; provided that such action pursuant to this Clause (5)
shall not adversely affect the interests of the Holders in any material
respect.
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SECTION 902. Supplemental Indentures
with Consent of Holders.
At any time after any Securities have been issued under this
Indenture, with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supple mental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon,
or change the place of payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase Date, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1020, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders, or
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(5) following the making of an Offer with respect to an Offer to
Purchase pursuant to Sections 1013 or 1017, modify the provisions of
this Indenture with respect to such Offer to Purchase in a manner
adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities
to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
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provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 907. Subordination Impaired.
No such supplemental indenture shall directly or indirectly modify
the provisions of Article Twelve in any manner which might terminate or
impair the rights of the Senior Debt pursuant to such subordination
provisions.
SECTION 908. Other Amendments to the Indenture.
At any time prior to the issuance of any Securities under this
Indenture, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indenture supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York, New York, an office or agency where Securities may be presented or
sur rendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any
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change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York, New York) where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, New York for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Security
Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee in writing of its action or failure so to act.
As provided in Section 504, upon any bankruptcy or reorganization proceeding
relative to the Company, the Trustee shall serve as the Paying Agent for the
Securities.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest
on any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee in writing of its action or failure
so to act. As provided in Section 504, upon any bankruptcy or reorganization
proceeding relative to the Company, the Trustee shall serve as the Paying
Agent for the Securities.
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The Company will cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any)
or interest;
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) acknowledge, accept and agree to comply in all
respects with the provisions of this Indenture relating to
the duties, rights and obligations of such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of (and premium, if any) or interest on any Security and remaining unclaimed
for two years after such principal (and premium, if any) or interest has
become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof,
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shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any
such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful
in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined in the good faith
judgment of the Board of Directors evidenced by a Board Resolution, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
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(1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any of its Subsidiaries or upon the income, profits or property of
the Company or any of its Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or dis
charged any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries
to, keep at all times all of their properties which are of an insurable
nature insured against loss or damage with insurers believed by the Company
to be responsible to the extent that property of similar character is usually
so insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 1008. Limitation on Company Debt.
The Company shall not, and shall not permit any
Subsidiary of the Company to, Incur any Debt unless the ratio of (a) the
aggregate principal amount of Debt of the Company and its Subsidiaries
outstanding as of the most recent available balance sheet, after giving pro
forma effect to the Incurrence of such Debt and any other Debt Incurred since
such balance sheet date and the receipt and application of the proceeds
thereof, to (b) Pro Forma Consolidated Cash Flow for the preceding four full
fiscal quarters, determined on a pro forma basis as if such Debt and any
other Debt Incurred since such balance sheet date had been Incurred and the
proceeds therefrom had been applied at the beginning of such four fiscal
quarters, would be less than 6.5 to 1.
Notwithstanding the foregoing paragraph, the Company
or any Subsidiary may Incur the following without regard to the foregoing
limitation:
(i) Debt under the Senior Loan Agreement not to
exceed $300 million aggregate principal amount at any one
time outstanding, and any renewal, extension, refinancing
or refunding thereof in an amount which, together with
any amount remaining outstanding or
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available under the Senior Loan Agreement, does not exceed
$300 million;
(ii) Debt evidenced by the 12.75% Debentures, the
10 3/8% Notes and the 9 3/8% Notes, as well as the
Securities if the Securities are issued in exchange for
the 12 3/4% Exchangeable Preferred Stock;
(iii) Debt owed by the Company to any Wholly Owned
Subsidiary of the Company or Debt owed by a Subsidiary of
the Company to the Company or a Wholly Owned Subsidiary of
the Company; provided, however, that for purposes of this
Section 1008, upon either (x) the transfer or other
disposition by such Wholly Owned Subsidiary or the Company
of any Debt so permitted to a Person other than the Company
or another Wholly Owned Subsidiary of the Company or (y)
the issuance (other than directors' qualifying shares),
sale, transfer or other disposition of shares of Capital
Stock (including by consolidation or merger) of such Wholly
Owned Subsidiary to a Person other than the Company or
another such Wholly Owned Subsidiary, the provisions of
this Clause (iii) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been Incurred at
the time of such transfer or other disposition;
(iv) Debt Incurred or Incurrable in respect of letters
of credit, bankers' acceptances or similar facilities not
to exceed $2 million at any one time outstanding;
(v) Capital Lease Obligations whose Attributable
Value will not exceed $5 million at any one time
outstanding;
(vi) Debt arising from the honoring by a bank or other
financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary
course of business; provided that such Debt is extinguished
within two Business Days of its Incurrence;
(vii) Debt Incurred by a Person prior to the time (A)
such Person became a Subsidiary of the Company, (B) such
Person merges into or consolidates with a Subsidiary of
the Company, (C) another Subsidiary of the Company merges
into or consolidates with such Person (in each case in a
transaction in which such Person becomes a Subsidiary of
the Company) or (D) such Person sells any of its property
consisting of operating
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assets to a Subsidiary of the Company subject to such Debt
(whether such Debt is recourse or non-recourse to such
Subsidiary); provided that in any such case such Debt was
not Incurred in anticipation of such transaction;
(viii) Debt evidenced by the 7.75% Exchange Debentures
if the 7.75% Exchange Debentures are issued in exchange for
the 7.75% Exchangeable Preferred Stock;
(ix) renewals, refundings, replacement or extensions
(collectively, "refinancings") of the Senior Loan
Agreement, the 12.75% Debentures, the 10 3/8% Notes, the
9 3/8% Notes, the 7.75% Exchange Debentures, the Securities
or any other outstanding Debt that was Incurred in
compliance with this Indenture (other than Debt referred to
in Clauses (i) through (vi) above) in an aggregate
principal amount not to exceed the principal amount of the
Debt so refinanced plus the amount of any premium required
to be paid in connection with such refinancing pursuant to
the terms of the Debt refinanced or the amount of any
premium reasonably determined by the Company as necessary
to accomplish such refinancing by means of a tender offer
or privately negotiated repurchase, plus the amount of
expenses of the Company Incurred in connection with such
refinancing; provided that (A) unless such refinancing Debt
is Senior Debt, such refinancing Debt does not have an
Average Life less than the Average Life of the Debt being
refinanced and (B) if such Debt is subordinated in right of
payment to the Securities such refinancing Debt is
subordinated in right of payment to the Securities at least
to the extent that the Debt to be refinanced is
subordinated to the Securities; and
(x) Debt not otherwise permitted to be Incurred
pursuant to Clauses (i) through (ix) above, which, together
with any other outstanding Debt Incurred pursuant to this
Clause (x), has an aggregate principal amount not in excess
of $15 million at any one time outstanding.
SECTION 1009. Limitation on Certain Debt.
The Company shall not Incur or permit to exist any
Debt that is by its terms both (i) subordinate in right of payment to any
Senior Debt and (ii) senior in right of payment to the Securities, in each
case other than by reason of its maturity. The Company shall not Incur or
permit to
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exist any Debt that is by its terms subordinate in right of payment to the
Securities unless such Debt constitutes Subordinated Debt.
SECTION 1010. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly,
declare or pay any dividend or make any distribution in respect of any class
of its Capital Stock or to the holders thereof (including pursuant to a
merger or consolidation of the Company, but excluding (a) any dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock) and (b) dividends in accordance
with the terms of the 7.75% Exchangeable Preferred Stock or the 12 3/4%
Exchangeable Preferred Stock, as such terms exist on the date of this
Indenture), (ii) shall not, and shall not permit any Subsidiary of the
Company, directly or indirectly, to purchase, redeem or otherwise acquire or
retire for value (a) any Capital Stock of the Company or (b) any options,
warrants or rights to purchase or acquire shares of Capital Stock of the
Company (in the case of either (a) or (b) other than in exchange for the
Company's Capital Stock (other than Disqualified Stock) or options, warrants
or other rights to purchase the Company's Capital Stock (other than
Disqualified Stock)), (iii) shall not make, or permit any Subsidiary of the
Company to make, any loan, advance, capital contribution to or Investment in,
or payment on a Guarantee of any obligation of, any Affiliate, other than the
Company or a Wholly Owned Subsidiary, (iv) shall not, and shall not permit
any Subsidiary of the Company to, redeem, defease, repurchase, retire or
otherwise acquire or retire for value prior to any scheduled maturity,
repayment or sinking fund payment, Debt of the Company which is subordinated
in right of payment to the Securities (other than in exchange for the
Company's Capital Stock (other than Disqualified Stock) or options, warrants
or other rights to purchase the Company's Capital Stock (other than
Disqualified Stock)), and (v) may not make any Investment in any Subsidiary
that is subject to an encumbrance or restriction prohibited under Section
1011 or any Investments in any Unrestricted Subsidiary (the transactions
described in Clauses (i) through (v) being referred to herein as "Restricted
Payments"), if at the time thereof:
(1) an Event of Default, or an event that with the
lapse of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is
continuing, or
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(2) upon giving effect to such Restricted Payment,
the aggregate of all Restricted Payments from December 31,
1996 exceeds the sum of:
(a) the remainder of (x) 100% of cumulative
Consolidated Cash Flow (or, in the case
Consolidated Cash Flow shall be negative, less
100% of such deficit) from December 31, 1996
through the last day of the last full fiscal
quarter immediately preceding such Restricted
Payment minus (y) the product of 1.4 times the
cumulative Consolidated Interest Expense from
December 31, 1996 through the last day of the
last full fiscal quarter immediately preceding
such Restricted Payment; plus
(b) 100% of the aggregate net proceeds received by
the Company since December 31, 1996, including
the fair value of property other than cash (as
determined in good faith by the Board of
Directors and evidenced by a Board Resolution),
from the issuance (other than to a Subsidiary of
the Company) of Capital Stock of the Company
(other than Disqualified Stock) and options,
warrants, or other rights to purchase or acquire
Capital Stock of the Company (other than
Disqualified Stock and other than by a
Subsidiary) and the principal amount of Debt of
the Company that has been converted into Capital
Stock of the Company (other than Disqualified
Stock and other than by a Subsidiary) since
December 31, 1996; plus
(c) an amount equal to the net reduction in
Investments made by the Company and its
Subsidiaries subsequent to the date of original
issue of the Securities pursuant to Clauses (iii)
and (v) above in any Affiliate or Unrestricted
Subsidiary or a Subsidiary of the Company that is
subject to an encumbrance or restriction
prohibited under Section 1011 upon the
disposition, liquidation, or repayment (including
by way of dividends) thereof, from redesignations
of Unrestricted Subsidiaries as Subsidiaries or
from the removal of such encumbrance or
restriction, but only to the extent such amounts
are not included in Consolidated Net Income and
not to exceed in the case of any Person the
amount of
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Investments previously made by the Company and
its Subsidiaries in such Person; plus
(d) $15 million.
Notwithstanding the foregoing, so long as no Event
of Default, or event that with the passing of time or the giving of notice,
or both, would constitute an Event of Default, shall have occurred and is
continuing or would result therefrom, the Company and any Subsidiary of the
Company may (i) pay any dividend within 60 days after declaration thereof if
at the declaration date such payment would have complied with the foregoing
provision; (ii) make any payment in redemption of Capital Stock of the
Company or options to purchase such Capital Stock granted to officers or
employees of the Company pursuant to the Company's Stock Option Plan (or any
successor plan) in connection with the severance or termination of officers
or employees (other than W. Xxx Xxxxxxxx and Xxxxxx X. Xxxx) not to exceed $1
million in the aggregate; (iii) make Investments not to exceed $10 million in
the aggregate at any one time outstanding, in (A) any Subsidiary which is
subject to any encumbrance or restriction prohibited under Section 1011 or
(B) any Unrestricted Subsidiary; (iv) exchange 7.75% Exchangeable Preferred
Stock in accordance with its terms (as such terms exist on the date of this
Indenture) for the 7.75% Exchange Debentures and exchange 12 3/4%
Exchangeable Preferred Stock in accordance with its terms (as such terms
exist on the date of this Indenture) for the Securities and make payments of
principal (premium, if any) and interest thereon in accordance with the 7.75%
Exchange Debenture Indenture or this Indenture, as the case may be; (v)
refinance any Debt otherwise permitted to be refinanced by Clause (ix) of the
second paragraph of Section 1008 or solely in exchange for or out of the
proceeds of the substantially concurrent sale (other than from or to a
Subsidiary of the Company) of shares of Capital Stock of the Company (other
than Disqualified Stock) (vi) purchase, redeem, acquire or retire any shares
of Capital Stock of the Company solely in exchange for or out of the proceeds
of the substantially concurrent sale (other than from or to a Subsidiary of
the Company) of shares of Capital Stock (other than Disqualified Stock) of
the Company; (vii) purchase or redeem any Debt from Net Available Proceeds to
the extent permitted or required under Section 1013; and (viii) make
Permitted Television Investments in an aggregate amount at any one time
outstanding not to exceed $25 million. Any payment or Investment made
pursuant to Clause (i), (ii) or (iii) of this paragraph shall be a Restricted
Payment for purposes of calculating aggregate Restricted Payments under the
first paragraph of this Section 1010.
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SECTION 1011. Limitations Concerning Distributions
by and Transfers to Subsidiaries.
The Company shall not, and shall not permit any
Subsidiary of the Company to, suffer to exist any consensual encumbrance or
restriction on the ability of any Subsidiary of the Company: (i) to pay,
directly or indirectly, dividends or make any other distributions in respect
of its Capital Stock or pay any Debt or other obligation owed to the Company
or any other Subsidiary of the Company; (ii) to make loans or advances to the
Company or any Subsidiary of the Company; or (iii) to transfer any of its
property or assets to the Company. Notwithstanding the foregoing limitation,
the Company may permit a Subsidiary to suffer to exist any such encumbrance
or restriction (A) included in any instrument governing Debt Incurred by such
Subsidiary pursuant to the first paragraph of Section 1008 of the Indenture
for the purpose of financing all or part of the purchase price or cost of
construction or improvements of property; provided, however, that the
principal amount of the Debt so Incurred does not exceed the purchase price
or cost of construction or improvements of such property; (B) included in the
Senior Loan Agreement; (C) imposed by virtue of applicable corporate law or
regulation and relating solely to the payment of dividends or distributions
to shareholders; (D) pursuant to an agreement relating to any Debt Incurred
by a Person prior to the date on which such Person became a Subsidiary of the
Company and outstanding on such date and not Incurred in anticipation of
becoming a Subsidiary; (E) with respect to restrictions of the nature
described in Clause (iii) above, included in a contract entered into in the
ordinary course of business and consistent with past practices that contains
provisions restricting the assignment of such contract; (F) pursuant to an
agreement effecting a refinancing of Debt Incurred pursuant to an agreement
referred to in Clause (A), (B) or (D) above; provided, however, that the
provi sions contained in such refinancing agreement relating to such
encumbrance or restriction are no more restrictive in any material respect
than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a Board
Resolution, or (G) included in any instrument governing Capital Lease
Obligations whose Attributable Value will not exceed $5 million in the
aggregate at any one time outstanding or included in any instrument governing
a Sale and Leaseback Transaction whose Attributable Value does not exceed $2
million and the Attributable Value of all such Sale and Leaseback
Transactions entered into since the date of this Indenture does not exceed $5
million in the aggregate;
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provided that in each case, after giving effect to the Incurrence of such
Capital Lease Obligation or Sale and Leaseback Transaction and the receipt and
application of the proceeds thereof, the ratio of the aggregate principal amount
of Debt of the Company and its Subsidiaries outstanding as of the most recent
available balance sheet to Pro Forma Consolidated Cash Flow for the preceding
four full fiscal quarters, determined on a pro forma basis as if such Capital
Lease Obligation had been Incurred, or such Sale and Leaseback Transaction had
taken place, and the proceeds therefrom had been applied at the beginning of
such four fiscal quarters, would be less than 6.5 to 1.
SECTION 1012. Limitation on Transactions with
Affiliates.
The Company shall not, and shall not permit any
Subsidiary of the Company to, directly or indirectly, enter into any
transaction after the date of this Indenture (including, without limitation,
the purchase, sale, lease or exchange of property, the rendering of any
service or the making of any loan or advance, but excluding transactions
between the Company and Wholly Owned Subsid iaries), with any Affiliate,
unless a majority of the disinterested members of the Board of Directors
determines in its reasonable good faith judgment and which determination
shall be evidenced by a Board Resolution that:
(1) the terms of such transaction are in the best
interests of the Company or such Subsidiary; and
(2) such transaction is on terms no less favorable to
the Company or such Subsidiary than those that could be
obtained in a comparable arm's-length transaction with an
entity that is not an Affiliate.
Notwithstanding the foregoing, the Company shall not
be required to file any Board Resolution referred to in the preceding
paragraph with respect to matters solely concerning the compensation of
employees.
SECTION 1013. Limitation on Certain Asset Dispositions.
(a) The Company shall not, and shall not permit any
Subsidiary to, make an Asset Disposition in one or more transactions in any
fiscal year unless (i) the Company (or the Subsidiary, as the case may be)
receives consideration at the time of such sale or other disposition at least
equal to the fair market value for the assets sold or otherwise
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disposed of (which shall be as determined in good faith by the Board of
Directors, evidenced by a Board Resolution), (ii) at least 85% of the
considera tion for such disposition shall consist of cash or readily
marketable cash equivalents or the assumption of Debt of the Company or a
Subsidiary or other obligations relating to such assets and a release from
all liability on the Debt or other obligations assumed, and (iii) all Net
Available Proceeds of such disposition and from the sale of any marketable
cash equivalents received thereby, less any amounts invested as described in
the second sentence of the following paragraph, are applied (A) first, within
120 days of such disposition, to the reduction of any obligations then
outstanding under the Senior Loan Agreement (or any successor credit
facility) to the extent the terms of such Senior Loan Agreement (or
successor credit facility) require such application or prohibit prepayment
of the Securities; (B) second, within 120 days of such disposition, to the
repayment of any other Senior Debt to the extent the terms of such Senior
Debt require such application or prohibit prepayment of the Securities; (C)
third, to the extent of any remaining Net Available Proceeds and so long as
any 12.75% Debentures are outstanding, to make an offer to purchase the
12.75% Debentures in accordance with the requirements of the 12.75% Debenture
Indenture; (D) fourth, to the extent of any remaining Net Available Proceeds
and so long as any 10 3/8% Notes are outstanding, to make an offer to
purchase the 10 3/8% Notes in accordance with the requirements of the 10 3/8%
Note Indenture; (E) fifth, to the extent of any remaining Net Available
Proceeds and so long as any 9 3/8% Notes are outstanding, to make an offer to
purchase the 9 3/8% Notes in accordance with the requirements of the 9 3/8%
Note Indenture; (F) sixth, to the extent more than $5,000,000 of Net
Available Proceeds are not required to be applied to the repayments as
specified in Clauses (A), (B), (C), (D) and (E), to purchases of Outstanding
Securities pursuant to an Offer to Purchase at a purchase price equal to 100%
of their principal amount plus accrued interest to the date of purchase; (G)
seventh, to the extent of any remaining Net Available Proceeds following the
completion of the Offer to Purchase Securities required by Clause (F), to the
repayment of other Debt of the Company or Debt of a Subsidiary of the
Company, to the extent permitted under the terms thereof; and (H) eighth, to
the extent of any remaining Net Available Proceeds, to any other use as
determined by the Company which is not otherwise prohibited by this Indenture.
Notwithstanding Clause (ii) above, all or a portion
of the consideration for any such disposition may consist of all or
substantially all of the assets or a majority of the Voting Stock of an
existing television or
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radio broadcasting or cable television business or franchise (whether
existing as a separate entity, subsidiary, division, unit or otherwise) if
after giving effect to any such disposition and related acquisition of
assets, (x) the ratio of the aggregate principal amount of Debt of the
Company and its Subsidiaries outstanding as of the most recent available
balance sheet to Pro Forma Consolidated Cash Flow for the preceding four
fiscal quarters, determined on a pro forma basis as if such transaction had
taken place and the proceeds therefrom had been applied at the beginning of
such four fiscal quarters, would be less than 6.5 to 1; (y) no Event of
Default or event that, with the passing of time or the giving of notice, or
both, will constitute an Event of Default shall have occurred or be
continuing; and (z) the Net Available Proceeds, if any, are invested in
accordance with the next sentence of this paragraph. Notwithstanding Clause
(iii) above, the Company shall not be required to repurchase or redeem any
Debt to the extent that the Net Available Proceeds from any Asset Disposition
are invested within 120 days of such disposition in television or radio
broadcasting or cable television assets or franchises or the Company shall
have entered into a definitive agreement to acquire such assets subject only
to customary conditions, including, without limitation, the approval of the
Federal Communications Commission (but excluding any conditions with respect
to the financing of such acquisition or due diligence) and such acquisition
shall have been consummated within 240 days of such disposition.
Notwithstanding the foregoing two sentences, the Company shall not be
entitled to take as consideration for an Asset Disposition, or invest Net
Available Proceeds in lieu of repurchasing or redeeming Debt in, any
television or radio broadcasting or cable television assets, business or
franchise unless the majority of the assets (including intangibles) so
acquired or the majority of the assets (including intangibles) of the
business or franchise so acquired are related to television or radio
broadcasting.
(b) The Company will mail the Offer for an Offer to
Purchase required pursuant to Section 1013(a) not more than 120 days after
consummation of the disposition referred to in Section 1013(a), unless the
Company shall have entered into a definitive agreement to acquire such assets
as described above, in which case the Company will mail the Offer for the
Offer to Purchase not later than the earlier of (A) 240 days after such
disposition and (B) 30 days after the termination of any such definitive
acquisition agreement. The aggregate principal amount of the Securities to
be offered to be purchased pursuant to the Offer to Purchase shall equal the
Net Available Proceeds available therefor pursuant to Clause (iii)(D) of
Section 1013(a) (rounded down
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to the next lowest integral multiple of $1,000). Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount.
The Company shall not be entitled to any credit
against its obligations under this Section 1013 for the principal amount of
any Securities acquired or redeemed by the Company otherwise than pursuant to
the Offer to Purchase pursuant to this Section 1013.
(c) Not later than the date of the Offer with
respect to an Offer to Purchase pursuant to this Section 1013, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the Purchase
Amount, (ii) the allocation of the Net Available Proceeds from the Asset
Disposition pursuant to which such Offer is being made, including, if amounts
are invested in assets related to the business, the actual assets acquired
and (iii) the compliance of such allocation with the provisions of Section
1013(a).
The Company and the Trustee shall perform their
respective obligations specified in the Offer for the Offer to Purchase. On
or prior to the Purchase Date, the Company shall (i) accept for payment (on a
pro rata basis, if neces sary) Securities or portions thereof tendered
pursuant to the Offer, (ii) deposit with the paying agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) money sufficient to pay the purchase price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to
the Trustee all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the
Company. The Paying Agent (or the Company, if so acting) shall promptly mail
or deliver to Holders of Securities so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security of like tenor equal in principal
amount to any unpurchased portion of the Security surrendered. Any Security
not accepted for payment shall be promptly mailed or delivered by the Company
to the Holder thereof.
(d) Notwithstanding the foregoing, this Section
1013 shall not apply to any Asset Disposition which constitutes a transfer,
conveyance, sale, lease or other disposition of all or substantially all of
the Company's
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properties or assets within the meaning of Section 801 hereof.
SECTION 1014. Limitation on Issuances and Sales of
Capital Stock of Wholly Owned Subsidiaries.
The Company (i) shall not and shall not permit any
Wholly Owned Subsidiary to transfer, convey, sell or otherwise dispose of
Capital Stock of such or any other Wholly Owned Subsidiary to any Person
(other than the Company or a Wholly Owned Subsidiary) unless such transfer,
conveyance, sale or other disposition is of all the Capital Stock of such
Wholly Owned Subsidiary and the Net Available Proceeds from such transfer,
conveyance, sale or other disposition are applied in accordance with Section
1013 and (ii) will not permit any Wholly Owned Subsidiary to issue shares of
Capital Stock (other than directors' qualifying shares), or securities
convertible into, or warrants, rights or options to subscribe for or purchase
shares of, its Capital Stock to any Person other than to the Company or a
Wholly Owned Subsidiary unless in the case of either Clause (i) or (ii) above
(A) after giving effect to any such sale, disposition or issuance, the ratio
of the aggregate principal amount of Debt of the Company and its Subsidiaries
outstanding as of the most recent available balance sheet to Pro Forma
Consolidated Cash Flow for the preceding four fiscal quarters, determined on
a pro forma basis as if such sale, disposition or issuance had taken place
and the Net Available Proceeds therefrom had been applied at the beginning of
such four fiscal quarters, would be less than 6.5 to 1; (B) immediately after
giving effect to such sale, disposition or issuance (including any
acquisition of assets with Net Available Proceeds) no Event of Default or
event that with the passing of time or the giving of notice, or both, will
constitute an Event of Default shall have occurred or be continuing; (C) the
assets acquired pursuant to such sale, disposition or issuance, are either
(x) at least 85% cash or readily marketable cash equivalents and the Net
Available Proceeds from such sale, disposition or issuance are applied in
accordance with Section 1013 (including the provisions thereof relating to
the application of Net Available Proceeds therefrom) or (y) all or
substantially all of the assets or a majority of the Voting Stock of an
existing television or radio broadcasting or cable television business or
franchise (whether existing as a separate entity, subsidiary, division, unit
or otherwise) (subject to the restrictions described in the last sentence of
the second paragraph of Section 1013(a)); (D) after giving effect to any such
sale, disposition or issuance, such Wholly Owned Subsidiary shall be a
Subsidiary of the Company and (E) the
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Company (or the Subsidiary, as the case may be) receives consideration at the
time of the issuance, sale or disposition of the Capital Stock at least equal
to the fair value for the Capital Stock issued or sold (which shall be
determined in good faith by the Board of Directors, evidenced by a Board
Resolution).
SECTION 1015. Limitation on Liens Securing Company
Subordinated Debt.
The Company may not, and may not permit any
Subsidiary of the Company to, Incur or suffer to exist any Lien on or with
respect to any property or assets now owned or hereafter acquired to secure
any Debt of the Company that is expressly by its terms subordinate or junior
in right of payment (other than by reason of maturity) to any other Debt of
the Company without making, or causing such Subsidiary to make, effective
provision for securing the Securities (x) equally and ratably with such Debt
as to such property or assets for so long as such Debt will be so secured or
(y) in the event such Debt is subordinate in right of payment (other than by
reason of maturity) to the Securities, prior to such Debt as to such property
or assets for so long as such Debt will be so secured.
SECTION 1016. Limitation on Guarantees of Company
Subordinated Debt.
The Company may not permit any Subsidiary, directly
or indirectly, to assume, Guarantee or in any other manner become liable with
respect to any Debt of the Company that is expressly by its terms subordinate
or junior in right of payment (other than by reason of maturity) to any other
Debt of the Company.
SECTION 1017. Change of Control.
(a) Upon the occurrence of a Change of Control (as
defined below), each Holder of a Security shall have the right to have such
Security repurchased by the Company on the terms and conditions precedent set
forth in this Sec tion 1017 and this Indenture. The Company shall, within 30
days following the date of the consummation of a transaction resulting in a
Change of Control, mail an Offer with respect to an Offer to Purchase all
Outstanding Securities at a purchase price equal to 101% of their aggregate
principal amount plus accrued interest to the Purchase Date; provided,
however, that installments of interest whose Stated Maturity
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is on or prior to the Purchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307. Each Holder shall be entitled to tender all
or any portion of the Securities owned by such Holder pursuant to the Offer
to Purchase, subject to the requirement that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount.
(b) The Company and Trustee shall perform their
respective obligations specified in the Offer for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment
Securities or portions thereof tendered pursuant to the Offer, (ii) deposit
with the Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) money sufficient to
pay the purchase price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for
payment shall be promptly mailed or delivered by the Company to the Holder
thereof.
(c) A "Change of Control" shall be deemed to have
occurred in the event that, after the date of this Indenture, either (A) any
Person or any Persons (other than one or more Permitted Holders) acting
together which would constitute a "group" (a "Group") for purposes of Section
13(d) of the Exchange Act, or any successor provision thereto, together with
any Affiliates, shall beneficially own (as defined in Rule 13d-3 of the
Exchange Act or any successor provision thereto) at least 50% of the
aggregate voting power of all classes of Voting Stock of the Company; or (B)
any Person or Group (other than Permitted Holders), together with any
Affiliates, shall succeed in having sufficient of its or their nominees
elected to the Board of Directors of the Company such that such nominees,
when added to any existing director remaining on the Board of Directors of
the Company after such election who is an Affiliate, shall constitute a
majority of the Board of Directors of the Company. "Permitted Holder" means
(i) W. Xxx Xxxxxxxx and Xxxxxx X. Xxxx, (ii) the members of the immediate
family of
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either of the persons referred to in Clause (i) above, (iii) any trust
created for the benefit of the persons described in Clause (i) or (ii) above
or any of their estates or (iv) any corporation that is controlled by any
person described in Clause (i), (ii) or (iii) above.
(d) Prior to the time required for the mailing of
an Offer with respect to an Offer to Purchase pursuant to paragraph (a), the
Company will (i) to the extent then required to be repaid, pay in full all
outstanding Senior Debt so as to permit the making of the Offer to Purchase
or (ii) obtain the requisite consents then required under the agreements
governing any Senior Debt. The failure by the Company to satisfy either
clause (i) or clause (ii) above shall not relieve the Company of its
obligation to make an Offer to Purchase required by paragraph (a) of this
Section 1017 in accordance with such paragraph.
SECTION 1018. Provision of Financial Information.
So long as any of the Securities are Outstanding,
and in addition to and without limitation of the Company's obligations
pursuant to Section 704, whether or not the Company is subject to Section
13(a) or 15(d) of the Exchange Act, the Company shall file with the
Commission the annual reports, quarterly reports and other documents that the
Company would have been required to file with the Commission pursuant to such
Sections 13(a) and 15(d) of the Exchange Act if the Company were so subject,
such documents to be filed with the Commis sion on or prior to the respective
dates (the "Required Filing Dates") by which the Company would have been
required so to file such documents if the Company were so subject; provided
that the Commission permits such filing. The Company shall also in any event
(x) within 15 days of each Required Filing Date (i) transmit by mail to all
Holders, as their names and addresses appear in the Security Register,
without cost to such Holders and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13(a) and
15(d) of the Exchange Act if the Company were subject to such Sections and
(y) if filing such documents by the Company with the Commission is not per
mitted under the Exchange Act, promptly upon written request supply copies of
such documents to any prospective Holder.
SECTION 1019. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the
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Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of Sections 1004 to 1018, inclusive, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the Company becomes
aware of the occurrence of an Event of Default or an event which, with notice
or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default and the action which the Company proposes to take with respect
thereto.
SECTION 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1004 to 1017,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the election
of the Company from time to time in the event that on or before April 1, 2002
the Company receives net proceeds from any Major Asset Disposition or sale of
its Capital Stock (other than Disqualified Stock) in one or more offerings,
in which case the Company may, at its option and from time to time, use all
or a portion of any such net proceeds to redeem Securities in a principal
amount of up to aggregate amount of $75,000,000; provided, however, that
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Securities in an amount equal to at least $75,000,000 remain outstanding
after each such redemption. Any such redemption must occur on a Redemption
Date within 90 days of any such sale at a Redemption Price of 112.75% of the
principal amount of the Securities plus accrued interest to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that
is on or prior to the Redemption Date).
(b) In addition, the Securities may be redeemed at
the election of the Company, as a whole or from time to time in part, at any
time on or after April 1, 2002, at the Redemption Prices specified in the
form of Security hereinbefore set forth, together with accrued interest to
the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the
Company, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution. In case
of any redemption at the election of the Company of the Securities, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
SECTION 1104. Securities to Be Redeemed Pro Rata.
If less than all the Securities are to be redeemed
in any redemption, the Securities to be redeemed shall be selected from the
Outstanding Securities not previously called for redemption, not more than 60
days prior to the Redemption Date by the Trustee pro rata, by lot or by such
other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Securities of a
denomination larger than $1,000.
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The Trustee shall promptly notify the Company and
each Security Registrar in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall identify the
Securities to be redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to
Section 1101(a) or (b) and, if being made pursuant to
either Section 1101(a), a brief statement setting forth the
Company's right to effect such redemption and the Company's
basis therefor,
(4) if less than all the Outstanding Securities are
to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on
and after said date,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
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(7) that in the case that a Security is only redeemed
in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities in an
aggregate amount equal to the unredeemed portion of the
Security.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate
provided by the Security.
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SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of like tenor,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of
a Security, by his acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article, the
indebtedness repre sented by the Securities and the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Debt.
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy
case or proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the Company
or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshalling of assets
and liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a
"Proceeding") the holders of Senior Debt
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shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character, whether in
cash, property or securities (including any payment or distribution which may
be payable or deliverable by reason of the payment of any other Debt of the
Company subordinated to the payment of the Securities, such payment or
distribution being hereinafter referred to as a "Junior Subordinated
Payment"), on account of principal of (or premium, if any) or interest on the
Securities or on account of purchase or other acquisition of Securities by
the Company or any Subsidiary (all such payments, distributions, purchases
and acquisitions herein referred to individually and collectively, as a
"Securities Payment"), and to that end the holders of Senior Debt shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or
securities which may be payable or deliverable in respect of the Securities
in any such Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any Security shall
have received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, then and in such
event such payment or distribution shall be paid over or delivered forthwith
to the trustee in bank ruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other Person making payment or distribution of assets of
the Company for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all Senior Debt in full in cash or
cash equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt unless the Trustee shall
have knowledge, as provided in Section 1209, that the Senior Debt has been
paid in full or payment provided for in cash or cash equivalents or otherwise
in a manner satisfactory to the holder of Senior Debt.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by a plan of
reorganization or read justment or of any other corporation provided for by
such plan of reorganization or readjustment which stock or securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially the same extent as the Securities are so subordinated as
provided in this
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Article (any such stock or securities hereinafter called "Subordinated
Consideration"). The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in
Default.
In the event that any Senior Payment Default (as
defined below) shall have occurred and be continuing, then no Securities
Payment (other than in Subordinated Consideration) shall be made unless and
until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of Senior
Debt shall have been paid in full, or provision shall have been made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt. "Senior Payment Default" means any default in the
payment of principal of (or premium, if any) or interest with respect to the
Senior Debt when due, whether at the Stated Maturity of any such payment or
by declaration of acceleration, call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the receipt
by the Company and the Trustee of written notice of such Senior Nonmonetary
Default from the Agent Bank for the Senior Loan Agreement (or any successor
credit facility) or such other holder of Senior Debt as the Company shall
have designated in an Officers' Certificate delivered to the Trustee (the
"Designated Senior Debt"), no Securities Payment (other than in Subordinated
Consideration) shall be made during the period (the "Payment Blockage
Period") commencing on the date of such receipt of such written notice and
ending on the earlier of (i) the date on which such Senior Nonmonetary
Default shall have been cured or waived or shall have ceased to exist and any
acceleration of Senior Debt shall have been rescinded or annulled or the
Senior Debt to which such Senior Nonmonetary
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Default relates shall have been discharged or (ii) the 179th day after the
date of such receipt of such written notice; provided, however, that no more
than one Payment Blockage Period may be commenced with respect to the
Securities during any 360-day period and there shall be a period of at least
181 consecutive days in each such 360-day period when no Payment Blockage
Period is in effect. For all purposes of this paragraph, no Senior
Nonmonetary Default that existed or was continuing on the date of
commencement of any Payment Blockage Period shall be, or be made, the basis
for the commencement of a subsequent Payment Blockage Period by holders of
Senior Debt or their representatives unless such Senior Nonmonetary Default
shall have been cured or waived for a period of not less than 90 consecutive
days. "Senior Nonmonetary Default" means the occurrence or existence of any
event, circumstance, condition or state of facts that, by the terms of any
instrument pursuant to which any Senior Debt is outstanding, permits one or
more holders of such Senior Debt (or a trustee or agent on behalf of the
holders thereof) then to declare such Senior Debt due and payable prior to
the date on which it would otherwise become due and payable, other than a
Senior Payment Default.
In the event that, notwithstanding the foregoing,
the Company shall make any payment to the Trustee or any Holder prohibited by
the foregoing provi sions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee as
provided in Section 1209 or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to
any payment with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in
this Indenture or in any of the Securities shall prevent (a) the Company, at
any time except during the pendency of any Proceeding referred to in Section
1202 or under the conditions described in Section 1203, from making
Securities Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Securities Payments or the retention of such
payment by the Holders, if, at the time of such application by the Trustee,
it did not have knowledge that such payment would have been prohibited by the
provisions of this Article.
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SECTION 1205. Subrogation to Rights of Holders
of Senior Debt.
Subject to the payment in full of all amounts due or
to become due on or in respect of Senior Debt, or provision being made for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article, and
no payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of
the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Debt.
SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders on the
one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Debt and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional (and which, subject to
the rights under this Article of the holders of Senior Debt, is intended to
rank equally with all other general obligations of the Company) to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
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SECTION 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Debt to enforce 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, regard less 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 Holders
of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities 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, Senior Debt, or otherwise amend or supplement in any manner
Senior Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding; (ii) sell, exchange, 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.
SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture,
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the Trustee shall not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from
any trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if a
Responsible Officer of the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose, the notice with respect to such money
provided for in this Section 1209, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the
Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Debt (or a trustee
therefor); provided, however, that failure to give such notice to the Company
shall not affect in any way the ability of the Trustee to rely on such
notice. In the event that the Trustee determines in good faith that further
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, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, 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.
SECTION 1210. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such
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Proceeding, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent
or other Person making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, 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.
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt.
With respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Debt, shall be
read into this Indenture against the Trustee. 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 in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other
Person cash, property or securities to which any holders of Senior Debt shall
be entitled by virtue of this Article or otherwise.
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article 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 this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and
including such
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Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of
the Trustee; provided, however, that Section 1212 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1214. Defeasance of this Article Twelve.
The subordination of the Securities provided by this
Article Twelve is expressly made subject to the provisions for defeasance or
covenant defeasance in Article Thirteen hereof and, anything herein to the
contrary notwithstanding, upon the effectiveness of any such defeasance or
covenant defeasance, the Securities then outstanding shall thereupon cease to
be subordinated pursuant to this Article Twelve.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may at its option by Board Resolution,
at any time (subject to 10-day prior written notification to the Trustee),
elect to have either Section 1302 or Section 1303 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this
Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided
in Section 1301 applicable to this Section, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until
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otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to
such Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided
in Section 1301 applicable to this Section (i) the Company shall be released
from its obligations under Sections 1005 through 1018, inclusive, and Clauses
(3) and (4) of Section 801, (ii) the occurrence of an event specified in
Sections 501(3), 501(4) (with respect to Clauses (3) and (4) of Section 801
and Sections 1005 through 1018, inclusive), 501(5) and 501(6) shall not be
deemed to be an Event of Default and (iii) the provisions of Article Twelve
shall cease to be effective, on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or Article, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application
of either Section 1302 or Section 1303 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree
to comply with the provisions of this Article Thirteen
applicable to it) as trust funds in
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trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized
accounting firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of,
premium, if any, and each installment of interest on the
Securities on the Stated Maturity of such principal or
installment of interest on the day on which such payments
are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, "U.S.
Government Obligations" means securities that are (x)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act)
as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such
depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository
receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default
shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 501(8) and (9) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit
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(it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest as defined
in Section 608 and for purposes of the Trust Indenture Act
with respect to any securities of the Company.
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound.
(5) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to either the defeasance under Section 1302 or the covenant
defeasance under Section 1303 (as the case may be) have
been complied with.
(6) In the case of an election under Section 1302,
the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (x) the Company has received from,
or there has been published by, the Internal Revenue
Service a ruling, or (y) 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 shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge 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
deposit, defeasance and discharge had not occurred.
(7) In the case of an election under Section 1303,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the
Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
covenant defeasance had not occurred.
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(8) The Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that such deposit and
defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940,
as amended, or such trust shall be qualified under such act
or exempt from regulation thereunder.
(9) At the time of such deposit: (A) no default in
the payment of all or a portion of principal of (or
premium, if any) or interest on any Senior Debt shall have
occurred and be continuing, and no event of default with
respect to any Senior Debt shall have occurred and be
continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the
date on which it would otherwise have become due and
payable and (B) no other event of default with respect to
any Senior Debt shall have occurred and be continuing
permitting (after notice or the lapse of time, or both)
the holders of such Senior Debt (or a trustee on behalf of
the holders thereof) to declare such Senior Debt due and
payable prior to the date on which it would otherwise have
become due and payable, or, in the case of either Clause
(A) or Clause (B) above, each such default or event of
default shall have been cured or waived or shall have
ceased to exist.
SECTION 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively, for purposes of this Section 1305, the "Trustee")
pursuant to Section 1304 in respect of the Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
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against the U.S. Government Obligations deposited pursuant to Section 1304 or
the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
the Out standing Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Sec tion 1304 which, in the opinion of a nationally recognized
accounting firm expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance.
---------------
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first above
written.
GRANITE BROADCASTING CORPORATION
By /s/ XXXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President -- Finance
and Controller
[SEAL]
Attest:
/s/ XXXXXXXX X. XXXXXX
---------------------------
THE BANK OF NEW YORK, as Trustee
By /s/ XXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
[SEAL]
Attest:
/s/
---------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 1997, before me
personally came Xxxxx X. Xxxxx, to me known, who, being by me duly
--------------
sworn, did depose and say that he is the
Vice President--Finance and Controller of Granite
-------------------------------------
Broadcasting Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ XXXXXXX X. XXXXXXXX
----------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 1997, before me
personally came Xxxxxxx X. Xxxxxxxxx, to me known, who, being by me
--------------------
duly sworn, did depose and say that he is a
Assistant Vice President of The Bank of New
------------------------
York, one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the By-Laws of said corporation; and that he signed his name
thereto by like authority.
/s/ XXXXXXX X. XXXXXXX
----------------------------
