Exhibit 10.22
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YOUNG BROADCASTING INC.
As Issuer,
THE INITIAL GUARANTORS
named herein
AND
FIRST UNION NATIONAL BANK,
as Trustee
INDENTURE
Dated as of March 1, 2011
_______________
$500,000,000
10% SENIOR SUBORDINATED NOTES DUE 2011, SERIES A
10% SENIOR SUBORDINATED NOTES DUE 2011, SERIES B
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CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310 (a)(1)................................................................ 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.**
(a)(4)................................................................ N.A.
(a)(5)................................................................ 7.10
(b)................................................................... 7.10
(c)................................................................... N.A.
311 (a)................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312 (a)................................................................... 2.05
(b)................................................................... 12.03
(c)................................................................... 12.03
313 (a)................................................................... 7.06
(b)(1)................................................................ N.A.
(b)(2)................................................................ 7.06
(c)................................................................... 7.06; 12.02
(d)................................................................... 7.06
314 (a)................................................................... 4.02; 12.02
(b)................................................................... N.A.
(c)(1)................................................................ 12.04
(c)(2)................................................................ 12.04
(c)(3)................................................................ N.A.
(d)................................................................... N.A.
(e)................................................................... 12.05
(f)................................................................... N.A.
315 (a)................................................................... 7.01
(b)................................................................... 7.05
(c)................................................................... 7.01
(d)................................................................... 7.01
(e)................................................................... 6.11
316 (a)(last sentence).................................................... 2.09
(a)(1)(A)............................................................. 6.05
(a)(1)(B)............................................................. 6.04
(a)(2)................................................................ N.A.
(b)................................................................... 6.04;6.07
317 (a)(1)................................................................ 6.08
(a)(2)................................................................ 6.09
(b)................................................................... 2.04
318 (a)................................................................... 12.01
_______________________
* This Cross-Reference Table is not part of the Indenture.
** Not applicable.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Other Definitions......................................... 19
SECTION 1.03. Incorporation by Reference of TIA......................... 19
SECTION 1.04. Rules of Construction..................................... 20
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating........................................... 20
SECTION 2.02. Execution and Authentication.............................. 21
SECTION 2.03. Registrar and Paying Agent................................ 22
SECTION 2.04. Paying Agent to Hold Money in Trust....................... 22
SECTION 2.05. Holder Lists.............................................. 22
SECTION 2.06. Transfer and Exchange..................................... 23
SECTION 2.07. Replacement Notes......................................... 24
SECTION 2.08. Outstanding Notes......................................... 24
SECTION 2.09. Treasury Notes............................................ 24
SECTION 2.10. Temporary Notes........................................... 25
SECTION 2.11. Cancellation.............................................. 25
SECTION 2.12. Defaulted Interest........................................ 25
SECTION 2.13. Record Date............................................... 26
SECTION 2.14. CUSIP Number.............................................. 26
SECTION 2.15. Book-Entry Provisions for Global Notes.................... 26
SECTION 2.16. Special Transfer Provisions............................... 27
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Notice to Trustee......................................... 29
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased............ 30
SECTION 3.03. Notice of Redemption...................................... 31
SECTION 3.04. Effect of Notice of Redemption............................ 31
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SECTION 3.05. Deposit of Redemption Price.................................................................. 31
SECTION 3.06. Notes Redeemed in Part....................................................................... 32
SECTION 3.07. Redemption Provisions........................................................................ 32
SECTION 3.08. Procedures Relating to Mandatory Offers...................................................... 33
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium, and Interest.................................................. 34
SECTION 4.02. Reports...................................................................................... 34
SECTION 4.03. Compliance Certificate....................................................................... 35
SECTION 4.04. Stay, Extension and Usury Laws............................................................... 36
SECTION 4.05. Limitation on Restricted Payments............................................................ 36
SECTION 4.06. Corporate Existence.......................................................................... 37
SECTION 4.07. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock.................. 37
SECTION 4.08. Limitation on Transactions with Affiliates................................................... 39
SECTION 4.09. Limitation on Liens.......................................................................... 40
SECTION 4.10. Taxes........................................................................................ 40
SECTION 4.11. Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries..... 41
SECTION 4.12. Maintenance of Office or Agency.............................................................. 42
SECTION 4.13. Change of Control............................................................................ 42
SECTION 4.14. Limitation on Asset Sales.................................................................... 43
SECTION 4.15. Limitation on Guarantees of Company Indebtedness by Restricted Subsidiaries.................. 45
SECTION 4.16. Limitation on Incurrence of Senior Subordinated Debt......................................... 46
SECTION 4.17. Limitation on Subsidiary Capital Stock....................................................... 46
SECTION 4.18. Future Subsidiary Guarantors................................................................. 46
SECTION 4.19. Limitation on Certain Transfers of Assets.................................................... 47
SECTION 4.20. Maintenance of Properties.................................................................... 47
SECTION 4.21. Maintenance of Insurance..................................................................... 47
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets..................................................... 48
SECTION 5.02. Surviving Person Substituted................................................................. 49
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ARTICLE VI
DEFAULTS AND REMEDIES
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SECTION 6.01. Events of Default................................... 49
SECTION 6.02. Acceleration........................................ 52
SECTION 6.03. Other Remedies...................................... 52
SECTION 6.04. Waiver of Past Defaults............................. 53
SECTION 6.05. Control by Majority of Holders...................... 53
SECTION 6.06. Limitation of Suits by Holders...................... 53
SECTION 6.07. Rights of Holders to Receive Payment................ 54
SECTION 6.08. Collection Suit by Trustee.......................... 54
SECTION 6.09. Trustee May File Proofs of Claim.................... 54
SECTION 6.10. Priorities.......................................... 55
SECTION 6.11. Undertaking for Costs............................... 55
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee................................... 55
SECTION 7.02. Rights of Trustee................................... 57
SECTION 7.03. Individual Rights of Trustee........................ 57
SECTION 7.04. Trustee's Disclaimer................................ 58
SECTION 7.05. Notice to Holders of Defaults and Events of Default. 58
SECTION 7.06. Reports by Trustee to Holders....................... 58
SECTION 7.07. Compensation and Indemnity.......................... 58
SECTION 7.08. Replacement of Trustee.............................. 59
SECTION 7.09. Successor Trustee by Merger, Etc.................... 60
SECTION 7.10. Eligibility; Disqualification....................... 61
SECTION 7.11. Preferential Collection of Claims Against Company... 61
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance......... 61
SECTION 8.02. Conditions to Defeasance............................ 62
SECTION 8.03. Application of Trust Money.......................... 63
SECTION 8.04. Repayment to Company................................ 63
SECTION 8.05. Indemnity for U.S. Government Obligations........... 63
SECTION 8.06. Reinstatement....................................... 64
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ARTICLE IX
AMENDMENTS
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SECTION 9.01. Amendments and Supplements Permitted Without
Consent of Holders............................... 64
SECTION 9.02. Amendments and Supplements Requiring Consent of
Holders.......................................... 65
SECTION 9.03. Compliance with TIA................................. 66
SECTION 9.04. Revocation and Effect of Consents................... 66
SECTION 9.05. Notation on or Exchange of Notes.................... 66
SECTION 9.06. Trustee Protected................................... 67
SECTION 9.07. Amendments Requiring Consent of Holders of Senior
Debt............................................. 67
ARTICLE X
SUBORDINATION
SECTION 10.01. Agreement to Subordinate........................... 67
SECTION 10.02. Liquidation; Dissolution; Bankruptcy............... 68
SECTION 10.03. Default on Senior Debt............................. 69
SECTION 10.04. Acceleration of Notes.............................. 69
SECTION 10.05. When Distributions Must Be Paid Over............... 70
SECTION 10.06. Notice............................................. 70
SECTION 10.07. Subrogation........................................ 71
SECTION 10.08. Relative Rights.................................... 71
SECTION 10.09. The Company and Holders May Not Impair
Subordination................................... 72
SECTION 10.10. Distribution or Notice to Representative........... 72
SECTION 10.11. Rights of Trustee and Paying Agent................. 73
SECTION 10.12. Authorization to Effect Subordination.............. 73
SECTION 10.13. Payment............................................ 73
ARTICLE XI
INITIAL GUARANTEES
SECTION 11.01. Initial Guarantees................................. 74
SECTION 11.02. Trustee to Include Paying Agents................... 75
SECTION 11.03. Subordination of Initial Guarantees................ 75
SECTION 11.04. Senior Subordinated Debt of Initial Guarantors..... 76
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SECTION 11.05. Limits on Initial Guarantees.............................. 76
SECTION 11.06. Execution of Initial Guarantee............................ 76
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.............................. 77
SECTION 12.02. Notices................................................... 77
SECTION 12.03. Communication by Holders with Other Holders............... 78
SECTION 12.04. Certificate and Opinion as to Conditions Precedent........ 78
SECTION 12.05. Statements Required in Certificate or Opinion............. 78
SECTION 12.06. Rules by Trustee and Agents............................... 79
SECTION 12.07. Legal Holidays............................................ 79
SECTION 12.08. No Recourse Against Others................................ 79
SECTION 12.09. Counterparts.............................................. 79
SECTION 12.10. Initial Appointments, Compliance Certificates............. 79
SECTION 12.11. Governing Law............................................. 79
SECTION 12.12. No Adverse Interpretation of Other Agreements............. 80
SECTION 12.13. Successors................................................ 80
SECTION 12.14. Severability.............................................. 80
SECTION 12.15. Third Party Beneficiaries................................. 80
SECTION 12.16. Table of Contents, Headings, Etc.......................... 80
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THIS INDENTURE, dated as of March 1, 2001, is by and among (i) Young
Broadcasting Inc. (the "Company"), as issuer of the 10% Senior Subordinated
Notes due 2011 (the "Notes"), (ii) Young Broadcasting of Albany, Inc., Young
Broadcasting of Lansing, Inc., Winnebago Television Corporation, Young
Broadcasting of Nashville, Inc., YBT, Inc., WKRN, G.P., Young Broadcasting of
Louisiana, Inc., LAT, Inc., KLFY, L.P., Young Broadcasting of Richmond, Inc.,
Young Broadcasting of Green Bay, Inc., Young Broadcasting of Knoxville, Inc.,
Young Broadcasting of San Francisco, Inc., WATE, G.P., YBK, Inc., Young
Broadcasting of Xxxxxxxxx, Inc., Young Broadcasting of Sioux Falls, Inc., Young
Broadcasting of Rapid City, Inc., Young Broadcasting of Los Angeles, Inc.,
Fidelity Television, Inc., Honey Bucket Films, Inc. and Xxxx Xxxxx Inc., as
guarantors of the Company's obligations under this Indenture and the Notes (each
an "Initial Guarantor"), and (iii) First Union National Bank, as trustee (the
"Trustee").
The Company, each Initial Guarantor and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions.
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"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person (the "Acquired Person") existing at the time
the Acquired Person merges with or into, or becomes a Subsidiary of, such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, the Acquired Person merging with or into, or becoming a
Subsidiary of, such specified Person.
"Additional Guarantee" means any guarantee of the Company's
obligations under this Indenture and the Notes issued after the Issue Date
pursuant to Section 4.15.
"Additional Guarantor" means any Subsidiary of the Company that
guarantees the Company's obligations under this Indenture and the Notes issued
after the Issue Date pursuant to Section 4.15 or Section 4.18.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") of any Person
means the possession, directly or indirectly, of the power to direct or cause
the
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direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, or co-registrar.
"Asset Sale" means (i) any sale, lease, conveyance or other
disposition by the Company or any Restricted Subsidiary of any assets (including
by way of a sale-and-leaseback) other than in the ordinary course of business
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company shall not be an "Asset Sale" but
instead shall be governed by the provisions of Section 5.01), or (ii) the
issuance or sale of Capital Stock of any Restricted Subsidiary, in each case,
whether in a single transaction or a series of related transactions, to any
Person (other than to the Company or a Wholly-Owned Restricted Subsidiary) for
Net Proceeds in excess of $1,000,000.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors, or any amendment to, succession to or change in any such law.
"Board of Directors" means the Company's board of directors or any
authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" of any Person means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease for property leased by such Person that would at such time be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person, including any Preferred Stock.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition, issued, fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers' acceptances and repurchase
agreements issued by a Qualified Issuer having maturities of 270 days or less
from the date of acquisition, (c) commercial paper of an issuer rated at least
A-2 by Standard & Poor's Corporation or P-2 by Xxxxx'x Investors Service, Inc.,
or carrying an equivalent rating by a nationally recognized rating agency if
both of the two named
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rating agencies cease publishing ratings of investments and having maturities of
270 days or less from the date of acquisition, and (d) money market accounts or
funds with or issued by Qualified Issuers.
"Change of Control" means the occurrence of either of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 30% of the total outstanding Voting Stock of the Company; provided that the
Permitted Holders "beneficially own" (as so defined) a lesser percentage of such
Voting Stock than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Company, or (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors, or whose nomination for
election by the stockholders of the Company, was approved by a vote of 66 2/3 %
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of such Board of
Directors then in office.
"Commission" means the Securities and Exchange Commission.
"Company" means Young Broadcasting Inc., a Delaware corporation,
unless and until a successor replaces it in accordance with Article V and
thereafter means such successor.
"Consolidated Interest Expense" means, with respect to any period, the
sum of (i) the interest expense of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP
consistently applied, including, without limitation, (a) amortization of debt
discount, (b) the net payments, if any, under interest rate contracts (including
amortization of discounts), (c) the interest portion of any deferred payment
obligation and (d) accrued interest, plus (ii) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued
by the Company during such period, and all capitalized interest of the Company
and its Restricted Subsidiaries, in each case as determined on a consolidated
basis in accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any period, the net
income (or loss) of the Company and its Restricted Subsidiaries for such period,
determined on a con-
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solidated basis in accordance with GAAP consistently applied, adjusted, to the
extent included in calculating such net income (or loss), by excluding, without
duplication, (i) all extraordinary gains but not losses (less all fees and
expenses relating thereto), (ii) the portion of net income (or loss) of the
Company and its Restricted Subsidiaries allocable to interests in unconsolidated
Persons or Unrestricted Subsidiaries, except to the extent of the amount of
dividends or distributions actually paid to the Company or its Restricted
Subsidiaries by such other Person during such period, (iii) net income (or loss)
of any Person combined with the Company or any of its Restricted Subsidiaries on
a "pooling of interests" basis attributable to any period prior to the date of
combination, (iv) net gain but not losses (less all fees and expenses relating
thereto) in respect of dispositions of assets (including, without limitation,
pursuant to sale and leaseback transactions) other than in the ordinary course
of business, or (v) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income to the Company is not at the time permitted, directly
or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" means, with respect to any Person on any
date, the equity of the common and preferred stockholders of such Person and its
Restricted Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP consistently applied.
"Credit Agreement" means the $600 million Credit Agreement dated as of
June 26, 2000 between the Company, the banks listed therein, Bankers Trust
Company as Administrative Agent and the other parties thereto and the $200
million Second Amended and Restated Credit Agreement dated as of June 26, 2000
between the Company, the banks listed therein, Bankers Trust Company as
Administrative Agent and Issuing Bank as each of the same may be amended,
modified, renewed, refunded, replaced or refinanced from time to time, including
(i) any related notes, letters of credit, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time,
and (ii) any notes, guarantees, collateral documents, instruments and agreements
executed in connection with any such amendment, modification, renewal,
refunding, replacement or refinancing.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 12.02 or such other address as the Trustee may give notice
to the Company.
"Cumulative Consolidated Interest Expense" means, as of any date of
determination, Consolidated Interest Expense from October 1, 1994 to the end of
the Company's most recently ended full fiscal quarter prior to such date, taken
as a single accounting period.
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"Cumulative Operating Cash Flow" means, as of any date of
determination, Operating Cash Flow from October 1, 1994 to the end of the
Company's most recently ended full fiscal quarter prior to such date, taken as a
single accounting period.
"Custodian" means any custodian, receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Debt to Operating Cash Flow Ratio" means, with respect to any date of
determination, the ratio of (i) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Restricted Subsidiaries as of
such date on a consolidated basis, plus the aggregate liquidation preference or
redemption amount of all Disqualified Stock of the Company and its Restricted
Subsidiaries (excluding any such Disqualified Stock held by the Company or its
Wholly Owned Restricted Subsidiaries), to (ii) Operating Cash Flow of the
Company and its Restricted Subsidiaries on a consolidated basis for the four
most recent full fiscal quarters ending on or immediately prior to such date,
determined on a pro forma basis after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, at the
beginning of such four-quarter period; (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Company and its Restricted
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness was incurred, repaid or retired at the beginning of such four-
quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average balance of such Indebtedness at the end of each month during such
four-quarter period); (iii) in the case of Acquired Debt, the related
acquisition as if such acquisition had occurred at the beginning of such four-
quarter period; and (iv) any acquisition or disposition by the Company and its
Restricted Subsidiaries of any company or any business or any assets out of the
ordinary course of business, or any related repayment of Indebtedness, in each
case since the first day of such four-quarter period, assuming such acquisition
or disposition had been consummated on the first day of such four-quarter
period.
"Default" means any event that is, or after the giving of notice or
passage of time or both would be, an Event of Default.
"Designated Senior Debt" means (i) the Senior Bank Debt, and (ii) any
other Senior Debt of the Company permitted to be incurred under this Indenture
the principal amount of which is $20,000,000 or more at the time of the
designation of such Senior Debt as "Designated Senior Debt" by the Company in a
written instrument delivered to the Trustee.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviv-
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ing Person) or the sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of such Person's assets.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a change of control of the
Company in circumstances where the holders of the Notes would have similar
rights), in whole or in part on or prior to the stated maturity of the Notes.
"Dollars" and "$" means lawful money of the United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Notes" means each of the Company's (i) $125,000,000
aggregate principal amount of 9% Senior Subordinated Notes due 2006 and (ii)
$200,000,000 aggregate principal amount of 8 3/4% Senior Subordinated Notes due
2007.
"Existing Notes Indentures" means the Indentures dated as of January
1, 1996 and June 15, 1997 among the Company, the Initial Guarantors and State
Street Bank and Trust Company and First Union National Bank, respectively as
Trustees or successor Trustees, as the case may be, and pursuant to which the
Existing Notes were issued.
"Film Contracts" means contracts with suppliers that convey the right
to broadcast specified films, videotape motion pictures, syndicated television
programs or sports or other programming.
"Final Memorandum" means the Final Offering Memorandum of the Company
and the Initial Guarantors, dated February 20, 2001, which describes the Notes.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Note" means a Note evidencing all or a part of the Notes
issued to the Depository in accordance with Section 2.01 and bearing the legend
prescribed in Exhibit B.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner
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(including, without limitation, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness.
"Holder" means any person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, without duplication,
and whether or not contingent, (i) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services or which is
evidenced by a note, bond, debenture or similar instrument, (ii) all Capital
Lease Obligations of such Person, (iii) all obligations of such Person in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person, (iv) all Interest Rate Agreement Obligations of such
Person, (v) all liabilities secured by any Lien on any property owned by such
Person even if such Person has not assumed or otherwise become liable for the
payment thereof to the extent of the value of the property subject to such Lien,
(vi) all obligations to purchase, redeem, retire, or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (vii) to the extent not
included in (vi), all Disqualified Stock issued by such Person, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends thereon, and (viii) to the extent not otherwise
included, any guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (i) through (vii) above. "Indebtedness"
of the Company and the Restricted Subsidiaries shall not include current trade
payables incurred in the ordinary course of business and payable in accordance
with customary practices, and non-interest bearing installment obligations and
accrued liabilities incurred in the ordinary course of business which are not
more than 90 days past due. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by the fair market value of, such Disqualified Stock,
such fair market value is to be determined in good faith by the board of
directors of the issuer of such Disqualified Stock.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Independent Director" means a director of the Company other than a
director (i) who (apart from being a director of the Company or any Subsidiary)
is an employee, associate or Affiliate of the Company or a Subsidiary or has
held any such position during the previous five years, or (ii) who is a
director, employee, associate or Affiliate of another party to the transaction
in question.
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"Initial Guarantees" means the guarantees of the Company's obligations
under this Indenture and the Notes by the Initial Guarantors.
"Initial Guarantors" means (i) Young Broadcasting of Albany, Inc., a
Delaware corporation, (ii) Young Broadcasting of Lansing, Inc., a Michigan
corporation, (iii) Winnebago Television Corporation, an Illinois corporation,
(iv) Young Broadcasting of Nashville, Inc., a Delaware corporation, (v) YBT,
Inc., a Delaware corporation, (vi) WKRN, G.P., a Delaware general partnership,
(vii) Young Broadcasting of Louisiana, Inc., a Delaware corporation, (viii) LAT,
Inc., a Delaware corporation, (ix) KLFY, L.P., a Delaware limited partnership,
(x) Young Broadcasting of Richmond, Inc., a Delaware corporation, (xi) Young
Broadcasting of Green Bay, Inc., a Delaware corporation, (xii) Young
Broadcasting of Knoxville, Inc., a Delaware corporation, (xiii) WATE, G.P., a
Delaware general partnership, (xiv) YBK, Inc. a Delaware corporation, (xv) Young
Broadcasting of Xxxxxxxxx, Inc., a Delaware corporation, (xvi) Young
Broadcasting of Sioux Falls, Inc., a Delaware corporation, (xvii) Young
Broadcasting of Rapid City, Inc., a Delaware corporation, (xviii) Young
Broadcasting of Los Angeles, Inc., a Delaware corporation, (xix) Young
Broadcasting of San Francisco, Inc., a Delaware corporation, (xx) Honey Bucket
Films, Inc., a Delaware corporation, (xxi) Xxxx Xxxxx Inc., a Delaware
corporation, and (xxii) Fidelity Television, Inc., a California corporation.
"Initial Purchaser" means Chase Securities Inc.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Differential" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company, the difference between the rate of
interest on the Notes and the rate of interest on the Senior Bank Debt
immediately prior to the commencement of such Insolvency or Liquidation
Proceeding, excluding in each case any increase in the rate of interest
resulting from any default or event of default.
"Interest Rate Agreement Obligations" means, with respect to any
Person, the Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
-9-
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates of such Person) in the form
of loans, Guarantees, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Capital Stock or other securities and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Issue" means create, issue, assume, guarantee, incur or otherwise
become, directly or indirectly, liable for any Indebtedness or Capital Stock, as
applicable; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by designation, merger, consolidation, acquisition or otherwise) shall be deemed
to be issued by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary. For this definition, the terms " issuing, issuer, "issuance" and
"issued" have meanings correlative to the foregoing.
"Issue Date" means the date of original issuance of the Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the designated
corporate trust office of the Trustee is located are not required to be open.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Net Proceeds" means, with respect to any Asset Sale by any Person,
the aggregate cash proceeds received by such Person and/or its Affiliates in
respect of such Asset Sale, which amount is equal to the excess, if any, of (i)
the cash received by such Person and/or its Affiliates (including any cash
payments received by way of deferred payment pursuant to, or monetization of, a
note or installment receivable or otherwise, but only as and when received) in
connection with such Asset Sale, over (ii) the sum of (a) the amount of any
Indebtedness that is secured by such asset and which is required to be repaid by
such Person in connection with such Asset Sale, plus (b) all fees, commissions
and other expenses incurred by such Person in connection with such Asset Sale,
plus (c) provision for taxes, including income taxes, attributable to the Asset
Sale or attributable to required prepayments or repayments of Indebtedness with
the proceeds of such Asset Sale, plus (d) a reasonable reserve for the after-tax
cost of any indemnification payments (fixed or contingent) attributable to
seller's indemnities to purchaser in respect of such Asset Sale undertaken by
the Company or any of
-10-
its Restricted Subsidiaries in connection with such Asset Sale plus (e) if such
Person is a Restricted Subsidiary, any dividends or distributions payable to
holders of minority interests in such Restricted Subsidiary from the proceeds of
such Asset Sale.
"Notes" means the Series A Notes and Series B Notes as amended or
supplemented from time to time in accordance with the terms hereof that are
issued pursuant to this Indenture.
"Obligations" means any principal, interest (including, without
limitation, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Offer" means a Change of Control Offer made pursuant to Section 4.13
or an Asset Sale Offer made pursuant to Section 4.14.
"Officer" means, with respect to any Person, the Chairman, the
President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed by two Officers of
the Company.
"Offshore Physical Notes" has the meaning set forth in Section 2.01.
"Operating Cash Flow" means, with respect to any period, the
Consolidated Net Income of the Company and its Restricted Subsidiaries for such
period, plus (i) extraordinary net losses and net losses realized on any sale of
assets during such period, to the extent such losses were deducted in computing
Consolidated Net Income, plus (ii) provision for taxes based on income or
profits, to the extent such provision for taxes was included in computing such
Consolidated Net Income, and any provision for taxes utilized in computing the
net losses under clause (i) hereof, plus (iii) Consolidated Interest Expense of
the Company and its Restricted Subsidiaries for such period, plus (iv)
depreciation, amortization and all other non-cash charges, to the extent such
depreciation, amortization and other non-cash charges were deducted in computing
such Consolidated Net Income (including amortization of goodwill and other
intangibles, including Film Contracts and write-downs of Film Contracts), minus
(v) any cash payments contractually required to be made with respect to Film
Contracts (to the extent not previously included in computing such Consolidated
Net Income).
"Opinion of Counsel" means a written opinion in form and substance
satisfactory to, and from legal counsel acceptable to, the Trustee (such counsel
may be an employee of or counsel to the Company or the Trustee).
-11-
"Permitted Holders" means (i) any of Xxxx Xxxxx or Xxxxxxx Xxxxx; (ii)
the spouse, ancestors, siblings, descendants (including children or
grandchildren by adoption) of any such siblings or the spouse of any of the
Persons described in clause (i); (iii) in the event of the incompetence or death
of any of the Persons described in clauses (i) and (ii), such Person's estate,
executor, administrator, committee or other personal representative, in each
case who at any particular date shall beneficially own or have the right to
acquire, directly or indirectly, Capital Stock of the Company; (iv) any trusts
created for the benefit of the Persons described in clause (i), (ii) or (iii) or
any trust for the benefit of any such trust; or (v) any Person controlled by any
of the Persons described in clause (i), (ii), (iii), or (iv). For purposes of
this definition, "control," as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
ownership of voting securities or by contract or otherwise.
"Permitted Investments" means (i) any Investment in the Company or any
Wholly Owned Restricted Subsidiary; (ii) any Investments in Cash Equivalents;
(iii) any Investment in a Person (an "Acquired Person") if, as a result of such
Investment, (a) the Acquired Person becomes a Wholly Owned Restricted Subsidiary
of the Company, or (b) the Acquired Person either (1) is merged, consolidated or
amalgamated with or into the Company or one of its Wholly Owned Restricted
Subsidiaries and the Company or such Wholly Owned Restricted Subsidiary is the
Surviving Person, or (2) transfers or conveys substantially all of its assets
to, or is liquidated into, the Company or one of its Wholly Owned Restricted
Subsidiaries; (iv) Investments in accounts and notes receivable acquired in the
ordinary course of business; (v) notes from employees issued to the Company
representing (x) loans for the payment of the exercise price of options to
purchase Capital Stock of the Company or (y) loans to satisfy federal income tax
withholding requirements relating to the issuance of Capital Stock of the
Company pursuant to the Company's Incentive Stock Grant Program, in an aggregate
amount not to exceed $2,000,000 outstanding at any one time; (vi) any securities
received in connection with an Asset Sale that complies with Section 4.14; (vii)
Interest Rate Agreement Obligations permitted pursuant to Section 4.07(b);
(viii) any Guarantee issued by any Subsidiary of the Company in respect of
Senior Debt and any Subsidiary Guarantee; and (ix) any other Investments that do
not exceed $5,000,000 in amount in the aggregate at any one time outstanding.
"Permitted Liens" means (i) Liens on assets or property of the Company
that secure Senior Debt of the Company and Liens on assets or property of a
Restricted Subsidiary that secure Senior Debt of such Restricted Subsidiary, in
each case in which such Senior Debt is permitted under the provisions of Section
4.07 and provided that the provisions described under Section 4.15 are complied
with; (ii) Liens securing Indebtedness of a Person existing at the time that
such Person is merged into or consolidated with the Company or a Restricted
Subsidiary; provided that such Liens were in existence prior to the
contemplation of such
-12-
merger or consolidation and do not extend to any assets other than those of such
Person; (iii) Liens on property acquired by the Company or a Restricted
Subsidiary; provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any other property; (iv)
Liens arising from Capital Lease Obligations permitted under this Indenture; (v)
Liens arising from Purchase Money Indebtedness permitted under this Indenture;
(vi) Liens in respect of Interest Rate Agreement Obligations permitted under
this Indenture; (vii) Liens in favor of the Company or any Restricted
Subsidiary; (viii) Liens incurred, or pledges and deposits in connection with,
workers' compensation, unemployment insurance and other social security
benefits, and leases, appeal bonds and other obligations of like nature incurred
by the Company or any Restricted Subsidiary in the ordinary course of business;
(ix) Liens imposed by law, including, without limitation, mechanics', carriers',
warehousemen's, materialmen's, suppliers' and vendors' Liens, incurred by the
Company or any Restricted Subsidiary in the ordinary course of business; and (x)
Liens for ad valorem, income or property taxes or assessments and similar
charges which either are not delinquent or are being contested in good faith by
appropriate proceedings for which the Company has set aside on its books
reserves to the extent required by GAAP.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Notes" has the meaning set forth in Section 2.01.
"Post-Petition Interest" means, with respect to any Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding.
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth on Exhibit A-1.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Stock) of the Company, pursuant to an
effective registration
-13-
statement filed under the Securities Act, the net proceeds of which to the
Company (after deducting any underwriting discounts and commissions) exceed
$25,000,000.
"Purchase Agreement" means the purchase agreement dated February 16,
2001 by and among the Company, the Initial Guarantors and the Initial Purchaser
of the Notes.
"Purchase Date" means (i) in the case of a Change of Control Offer
pursuant to Section 4.13, the Change of Control Purchase Date and (ii) in the
case of an Asset Sale Offer pursuant to Section 4.14, the Asset Sale Offer
Purchase Date.
"Purchase Money Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries incurred in connection with the purchase of property
or assets for the business of the Company and its Restricted Subsidiaries.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Qualified Issuer" means (A) any lender that is a party to the Credit
Agreement; and (B) any commercial bank (i) which has capital and surplus in
excess of $100,000,000, and (ii) the outstanding short-term debt securities of
which are rated at least A-2 by Standard & Poor's Corporation or at least P-2 by
Xxxxx'x Investors Service, Inc., or carry an equivalent rating by nationally
recognized rating agency if both the two named rating agencies cease publishing
ratings of investments.
"Registered Exchange Offer" means the offer to exchange the Series B
Notes for all of the outstanding Series A Notes in accordance with the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Company, the Initial Guarantors and the Initial
Purchaser, relating to the Notes and dated as of the Issue Date, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Reorganization Securities" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company, Capital Stock or other securities
of the Company as reorganized or readjusted (or Capital Stock or any other
securities of any other Person provided for by a plan of reorganization or
readjustment) that are subordinated, at least to the same extent as the Notes,
to the payment of all outstanding Senior Debt after giving effect to such plan
of reorganization or readjustment; provided, however, that if debt securities
(i) such securities shall not provide for amortization (including sinking fund
and mandatory prepay-
-14-
ment provisions) commencing prior to six months following the final scheduled
maturity of all Senior Debt of the Company (as modified by such plan of
reorganization or readjustment), (ii) if the rate of interest on such securities
is fixed, such rate of interest shall not exceed the greater of (x) the rate of
interest on the Notes and (y) the sum of the rate of interest on the Senior Bank
Debt on the effective date of such plan of reorganization or readjustment and
the Interest Differential, (iii) if the rate of interest on such securities
floats, such interest rate shall not exceed at any time the sum of the interest
rate on the Senior Bank Debt at such time and the Interest Differential, and
(iv) such securities shall not have covenants or default provisions materially
more beneficial to Holders than those in effect with respect to the Notes on the
Issue Date.
"Representative" means, with respect to any Designated Senior Debt,
the indenture trustee or other trustee, agent or other representative(s), if
any, of holders of such Designated Senior Debt.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" means (i) any dividend or other distribution
declared or paid on any Capital Stock of the Company or any of its Restricted
Subsidiaries (other than dividends or distributions payable solely in Capital
Stock (other than Disqualified Stock) of the Company or such Restricted
Subsidiary or dividends or distributions payable to the Company or any Wholly
Owned Restricted Subsidiary); (ii) any payment to purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company or any Restricted
Subsidiary or other Affiliate of the Company (other than any Capital Stock owned
by the Company or any Wholly Owned Restricted Subsidiary); (iii) any payment to
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated in right of payment to the Notes other than a
purchase, redemption, defeasance or other acquisition or retirement for value
that is paid for with the proceeds of Refinancing Indebtedness that is permitted
under Section 4.07(b); or (iv) any Restricted Investment.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to request
and conclusively rely upon an Opinion of Counsel with respect to whether any
Note is a Restricted Security.
"Restricted Subsidiary" means each direct or indirect Subsidiary of
the Company other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
-15-
"Senior Bank Debt" means (i) the Indebtedness outstanding or arising
under the Credit Agreement up to a maximum principal amount of $500,000,000,
less any required repayments which result in a permanent reduction in the
commitments thereunder, (ii) all Obligations incurred by or owing to the holders
of such Indebtedness outstanding or arising under the Credit Agreement
(including, but not limited to, all fees and expenses of counsel and all other
charges, fees and expenses), and (iii) all Interest Rate Agreement Obligations
arising pursuant to the (x) Interest Rate Swap Agreement dated as of June 6,
2000 among the Company, Deutsche Bank and CIBC Investment Banking Products (or
their assigns), any schedule thereto or any confirmation of an interest rate
swap transaction thereunder, as the same may be amended or modified from time to
time and the (y) Interest Rate Swap Agreement dated as of July 3, 2000 between
the Company and Deutsche Bank (or its assigns), any schedule thereto or any
confirmation of an interest rate swap transaction thereunder, as the same may be
amended or modified from time to time.
"Senior Debt" means (A) with respect to the Company, the principal of
and interest (including Post-Petition Interest) on, and all other amounts owing
in respect of, (i) Senior Bank Debt, (ii) any other Indebtedness permitted to be
incurred by the Company under the terms of this Indenture (including, but not
limited to, reasonable fees and expenses of counsel and all other charges, fees
and expenses incurred in connection with such Indebtedness), unless the
instrument creating or evidencing such Indebtedness or pursuant to which such
Indebtedness is outstanding expressly provides that such Indebtedness is on a
parity with or subordinated in right of payment to the Notes, and (B) with
respect to any Subsidiary Guarantor, the principal of and interest (including
Post-Petition Interest) on, and all other amounts owing in respect of, (i) such
Subsidiary Guarantor's obligations in respect of the Senior Bank Debt, including
its obligations as guarantor thereof, and (ii) any other Indebtedness permitted
to be incurred by such Subsidiary Guarantor under the terms of this Indenture
(including, but not limited to, reasonable fees and expenses of counsel and all
other charges, fees and expenses incurred in connection with such Indebtedness),
unless the instrument creating or evidencing such Indebtedness or pursuant to
which such Indebtedness is outstanding expressly provides that such Indebtedness
is on a parity with or subordinated in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor. Notwithstanding the foregoing, Senior
Debt shall not include (i) any Indebtedness for federal, state, local or other
taxes, (ii) any Indebtedness among or between the Company, any Restricted
Subsidiary and/or their Affiliates, (iii) any Indebtedness incurred for the
purchase of goods or materials, or for services obtained, in the ordinary course
of business or any Obligations in respect of any such Indebtedness, (iv) any
Indebtedness that is incurred in violation of this Indenture, (v) Indebtedness
evidenced by the Notes or the Subsidiary Guarantees, or (vi) Indebtedness of a
Person that is expressly subordinate or junior in right of payment to any other
Indebtedness of such Person.
-16-
"Senior Subordinated Indebtedness" means (A) with respect to the
Company, all Indebtedness of the type referred to in clause (A)(ii) of the
definition of Senior Debt unless the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding expressly
provides that such Indebtedness is either Senior Debt of the Company or is
subordinated in right of payment to the Notes, and (B) with respect to each
Subsidiary Guarantor, all Indebtedness of the type referred to in clause (B)(ii)
of the definition of Senior Debt unless the instrument creating or evidencing
such Indebtedness or pursuant to which such Indebtedness is outstanding
expressly provides that such Indebtedness is either Senior Debt of such
Subsidiary Guarantor or subordinated in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor. Notwithstanding the foregoing, Senior
Subordinated Indebtedness shall not include any Indebtedness of the type
referred to in clauses (i), (ii), (iii) and (iv) at the end of the definition of
Senior Debt.
"Series A Notes" means the 10% Senior Subordinated Notes due 2011
being issued and sold pursuant to the Purchase Agreement and this Indenture.
"Series B Notes" means the 10% Senior Subordinated Notes due 2011 (the
terms of which are identical to the Series A Notes except that the Series B
Notes shall be registered under the Securities Act, and shall not contain the
restrictive legend on the face of the form of the Series A Notes), to be issued
in exchange for the Series A Notes pursuant to the Registered Exchange Offer and
this Indenture.
"Subordinated Indebtedness" means any Indebtedness of the Company or a
Subsidiary Guarantor of the type referred to in clause (A)(ii) or (B)(ii) of the
definition of Senior Debt if the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding expressly
provides that such Indebtedness is (A) if incurred by the Company, subordinated
in right of payment to the Notes, or (B) if incurred by a Subsidiary Guarantor,
subordinated in right of payment to the Subsidiary Guarantee of such Subsidiary
Guarantor.
"Subsidiary" of any Person means (i) any corporation more than 50% of
the outstanding Voting Stock of which is owned or controlled, 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
limited partnership of which such Person or any Subsidiary of such Person is a
general partner, or (iii) any other Person (other than a corporation or limited
partnership) 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 more than 50% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof.
-17-
"Subsidiary Guarantees" means the Initial Guarantees and any
Additional Guarantees.
"Subsidiary Guarantors" means the Initial Guarantors and any
Additional Guarantors.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Television Stations" means the Television Stations presently known as
WKRN-TV, Nashville, Tennessee, WTEN-TV, Albany, New York, WLNS-TV, Lansing,
Michigan, KLFY-TV, Lafayette, Louisiana, WTVO-TV, Rockford, Illinois, WRIC-TV,
Richmond, Virginia, WATE-TV, Knoxville, Tennessee, WBAY-TV, Green Bay,
Wisconsin, KWQC-TV, Davenport, Iowa, KELO-TV, Sioux Falls, South Dakota, KCAL-
TV, Los Angeles, California and XXXX-TV, San Francisco, California.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb), as amended from time to time.
"Trustee" means First Union National Bank until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means such successor.
"Trust Officer" means any vice president, assistant vice president,
treasurer, assistant treasurer, assistant secretary, trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, in each case assigned by the
Trustee to administer this Indenture, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as an Unrestricted Subsidiary by the Board of Directors of the
Company; provided that (i) if such Subsidiary is formed or created by the
Company, such Subsidiary (a) is designated as an Unrestricted Subsidiary prior
to such formation or creation, (b) has total assets at the time of such
formation or creation with a fair market value not exceeding $1,000, and (c)
does not own any Capital Stock of the Company or any Restricted Subsidiary, (ii)
if such Subsidiary is acquired by the Company, such Subsidiary is designated as
an Unrestricted Subsidiary prior to the consummation of such acquisition, (iii)
no portion of any Indebtedness or any other obligation (contingent or otherwise)
of such Subsidiary (a) is guaranteed by, or is otherwise the subject of credit
support provided by the Company or any of its Restricted Subsidiaries (b) is
recourse to or obligates the Company or any of its Restricted Subsidiaries in
any way, or (c) subjects
-18-
any property or asset of the Company or any of its Restricted Subsidiaries
directly or indirectly, contingently or otherwise, to the satisfaction of such
Indebtedness or other obligation, (iv) neither the Company nor any of its
Restricted Subsidiaries has any contract, agreement, arrangement or
understanding with such Subsidiary other than on terms as favorable to the
Company or such Restricted Subsidiary as those that might be obtained at the
time from Persons that are not Affiliates of the Company, and (v) neither the
Company nor any of its Restricted Subsidiaries has any obligation (a) to
subscribe for additional shares of Capital Stock of such Subsidiary, or (b) to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve certain levels of operating results. Any such designation
by the Company's Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Company's Board of
Directors giving effect to such designation and a certificate stating that such
designation complies with the foregoing conditions. Notwithstanding the
foregoing or any other provision of this Indenture to the contrary, no assets of
the Television Stations may be held at any time by any Unrestricted Subsidiary,
other than assets transferred to Unrestricted Subsidiaries that in the aggregate
are not material to such broadcasting operations. In the event of any
Disposition involving the Company in which the Company is not the Surviving
Person, the Board of Directors of the Surviving Person may (x) prior to such
Disposition, designate any of its Subsidiaries, and any of the Company's
Subsidiaries being acquired pursuant to such Disposition that are not Restricted
Subsidiaries, as Unrestricted Subsidiaries, and (y) after such Disposition,
designate any of its direct or indirect Subsidiaries as an Unrestricted
Subsidiary under the same conditions and in the same manner as the Company under
the terms of this Indenture.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged; provided that no U.S. Government Obligation
shall be callable at the Issuer's option prior to the stated maturity date of
the Notes.
"U.S. Physical Notes" shall have the meaning set forth in Section
2.01.
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
-19-
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
with respect to which all of the outstanding voting securities (other than
directors' qualifying shares) of which are owned, directly or indirectly, by the
Company or a Surviving Person of any Disposition involving the Company, as the
case may be.
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
"Additional Guarantee" 4.15
"Asset Sale Offer" 4.14
"Asset Sale Offer Purchase Date" 4.14
"Asset Sale Offer Trigger Date" 4.14
"Change of Control Offer" 4.13
"Change of Control Purchase Date" 4.13
"Covenant Defeasance Option" 8.01
"Event of Default" 6.01
"Excess Proceeds" 4.14
"Legal Defeasance Option" 8.01
"Notice of Default" 6.01
"Other Indebtedness" 4.15
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Payment Blockage Period" 10.03
"Permitted Indebtedness" 4.07
"Permitted Payments" 4.05
"Purchase Date" 3.08
"Refinancing Indebtedness" 4.07
"Registrar" 2.03
"Required Filing Dates" 4.02
"Trustee Expenses" 6.08
SECTION 1.03. Incorporation by Reference of TIA.
----------------------------------
Whenever this Indenture refers to a provision of the Trust Indenture
Act of 1939, as amended ("TIA" the provision is incorporated by reference in,
and made a part of, this Indenture. Any terms incorporated by reference in this
Indenture that are defined by the
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TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires: (1) a term has the meaning
assigned to it in this Indenture; (2) an accounting term not otherwise defined
herein has the meaning assigned to it under GAAP; (3) "or" is not exclusive; (4)
words in the singular include the plural, and in the plural include the
singular; (5) provisions apply to successive events and transactions; and (6)
any reference to a Section or Article refers to such Section or Article of this
Indenture.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
---------------
The Series A Notes and the Series B Notes, the notation thereon
relating to the Subsidiary Guarantees and the Trustee's certificate of
authentication shall be substantially in the form of Exhibits A-1 and A-2,
respectively. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company and the Trustee shall approve
the form of the Notes and any notation, legend or endorsement on them. Each
Note shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes and the Subsidiary
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Subsidiary Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent Global Notes in registered form,
substantially in the form set forth in Exhibit A-1 ("Global Notes"), deposited
with the Trustee, as custodian for the Depository, and shall bear the legend set
forth on Exhibit B. The aggregate principal amount of any Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated Notes in registered
form set forth in Exhibit A-1(the "Offshore Physical Notes"). Notes offered and
sold in reliance on any other exemption from registration under the Securities
Act other than as described in the preceding paragraph shall
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be issued, and Notes offered and sold in reliance on Rule 144A may be issued, in
the form of certificated Notes in registered form in substantially the form set
forth in Exhibit A-1(the "U.S. Physical Notes"). The Offshore Physical Notes and
the U.S. Physical Notes are sometimes collectively herein referred to as the
"Physical Notes."
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers of the Company shall sign each Note for the Company by
manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid. The Company's seal shall be reproduced on each Note.
Each Subsidiary Guarantor shall execute the Subsidiary Guarantee in the manner
set forth in Section 11.06.
A Note shall not be valid until authenticated by the manual signature
of the Trustee, and the Trustee's signature shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A-1. The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or any of its Affiliates.
The Trustee shall authenticate (i) Series A Notes for original issue
in the aggregate principal amount of $500,000,000 and (ii) Series B Notes from
time to time for issue only in exchange for a like principal amount of Series A
Notes, in each case upon receipt of a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall specify the amount
of Notes to be authenticated and the date on which the Notes are to be
authenticated. The aggregate principal amount of Notes outstanding at any time
may not exceed $500,000,000, except as provided in Section 2.07. Upon receipt of
a written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Notes in substitution of Notes originally issued to
reflect any name change of the Company.
The Trustee shall not be required to authenticate or to cause an
authenticating agent to authenticate any Notes if the issue of such Notes
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Notes or this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not be lawfully taken.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
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SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (the "Registrar") where
Notes may be presented for registration of transfer or for exchange and an
office or agency (the "Paying Agent") where Notes may be presented for payment.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change the Paying Agent, Registrar or co-
registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this Indenture. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, and
such agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes. The
Company or any of its Affiliates may act as Paying Agent, Registrar or co-
registrar. If the Company fails to appoint or maintain a Registrar and/or
Paying Agent, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07.
SECTION 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the Holders'
benefit or the Trustee all money the Paying Agent holds for the redemption or
purchase of the Notes or for the payment of principal of, or premium, if any, or
interest on, the Notes, and will notify the Trustee of any default by the
Company in providing the Paying Agent with sufficient funds to redeem or
purchase Notes or make any payment on the Notes as and to the extent required to
be redeemed, purchased or paid under the terms of this Indenture. While any
such default continues, the Trustee may require the Paying Agent to pay all
money it holds to the Trustee. The Company at any time may require the Paying
Agent to pay all money it holds to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or any of its Affiliates)
shall have no further liability for the money it delivered to the Trustee. If
the Company or any of its Subsidiaries acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the Holders' benefit all money it holds as
Paying Agent.
SECTION 2.05. Holder Lists.
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall
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furnish to the Trustee, at least fifteen Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require that
sets forth the names and addresses of, and the aggregate principal amount of
Notes held by, each Holder, and the Company shall otherwise comply with Section
312(a) of the TIA.
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to Sections 2.15 and 2.16 when Notes are presented to the
Registrar or a co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met; provided, however, that any Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder of such Note or by its
attorney duly authorized in writing. To permit registrations of transfers and
exchanges, the Company shall Issue (and the Subsidiary Guarantors shall execute
the Subsidiary Guarantee endorsed thereon), and the Trustee shall authenticate,
Notes at the Registrar's request. The Trustee shall notify the Company of all
such registered transfers and exchanges.
Neither the Company nor the Registrar shall be required to issue,
register the transfer of or exchange any Note (i) during a period beginning at
the opening of business on the day that the Trustee receives notice of any
redemption from the Company and ending at the close of business on the day the
notice of redemption is sent to Holders, (ii) selected for redemption, in whole
or in part, except the unredeemed portion of any Note being redeemed in part may
be transferred or exchanged, and (iii) during a Change of Control Offer or an
Asset Sale Offer if such Note is tendered pursuant to such Change of Control
Offer or Asset Sale Offer and not withdrawn.
No service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchange pursuant to
Section 2.10, 3.06 or 9.05, which the Company shall pay).
Prior to due presentment for registration of transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing on such Note made by anyone other than the Company, the Registrar or any
co-registrar) for the purpose of receiving pay-
-24-
ment of principal of, and premium, if any, and interest on, such Note and for
all other purposes, and notice to the contrary shall not affect the Trustee, any
Agent or the Company.
SECTION 2.07. Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee, or if the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee shall, upon
receipt of a written order signed by two Officers of the Company, authenticate a
replacement Note if the Trustee's requirements are met, and each such
replacement Note shall be an additional obligation of the Company. If the
Trustee or the Company requires, the Holder must supply an indemnity bond that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for its reasonable expenses in replacing a Note.
SECTION 2.08. Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes the Trustee has
authenticated except those it has cancelled, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding. If a
Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that a bona fide purchaser holds
the replaced Note. If the entire principal of, and premium, if any, and accrued
interest on, any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue. Subject to Section 2.09, a
Note does not cease to be outstanding because the Company or any Affiliate of
the Company holds such Note.
SECTION 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company shall be considered as though they are
not outstanding; provided, however, that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that a Trust Officer of the Trustee actually knows are so
owned shall be so disregarded. Notwithstanding the foregoing, Notes that the
Company or any Affiliate of the Company offers to purchase or acquires pursuant
to an exchange offer, tender offer or otherwise shall not be deemed to be owned
by the Company or any Affiliate of the Company until legal title to such Notes
passes to the Company or such Affiliate, as the case may be.
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SECTION 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee, upon receipt of a written order
signed by two Officers of the Company, shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, any co-registrar, the Paying Agent, the Company
and its Subsidiaries shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange, replacement, payment (including all
Notes called for redemption and all Notes accepted for payment pursuant to an
Offer) or cancellation, and the Trustee shall cancel all such Notes and shall
destroy all cancelled Notes (subject to the record retention requirements of the
Exchange Act) and deliver a certificate of their destruction to the Company
unless, by written order signed by two Officers of the Company, the Company
shall direct that cancelled Notes be returned to it. The Company may not issue
new Notes to replace any Notes that have been cancelled by the Trustee or that
have been delivered to the Trustee for cancellation. If the Company or any
Affiliate of the Company acquires any Notes (other than by redemption pursuant
to Section 3.07 or an Offer pursuant to Section 4.13 or 4.14), such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until such Notes are delivered to the
Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Notes and Section
4.01. The Company shall, with the Trustee's consent, fix or cause to be fixed
each such special record date and payment date. At least 15 days before the
special record date, the Company (or, at the request of the Company, the Trustee
in the name of, and at the expense of, the Company) shall mail a notice that
states the special record date, the related payment date and the amount of
interest to be paid.
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SECTION 2.13. Record Date.
-----------
The record date for purposes of determining the identity of holders of
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in Section
316(c) of the TIA.
SECTION 2.14. CUSIP Number.
------------
A "CUSIP" number will be printed on the Notes, and the Trustee shall
use the CUSIP number in notices of redemption, purchase or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.15. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.16. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue Physical Notes.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred or exchanged,
and the Company shall execute (and the Subsidiary Guarantors shall execute the
Subsidiary Guarantee endorsed thereon), and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer or exchange of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute (and the Subsidiary Guarantors shall execute the Subsidiary
Guarantee endorsed thereon), and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) or (c)
shall, except as otherwise provided by paragraph (c) of Section 2.16, bear the
legend regarding transfer restrictions applicable to the Physical Notes set
forth in Exhibit A-1.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.16. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
---------------------------------------------------------------
U.S. Persons. The following provisions shall apply with respect to the
------------
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after March 1, 2003 or
(y) (1) in the case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the proposed transferee
has delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto and the transferor has delivered to the Trustee and the
Company such certifications, legal opinions and other information as the
Trustee and the Com-
-28-
pany may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act or (2) in the case of a
transfer to a Non-U.S. Person, the transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of (x)
the certificate, certifications, legal opinions and other information, if
any, required by paragraph (i) above and (y) instructions given in
accordance with the Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Company shall execute, the Subsidiary Guarantors shall execute the
Subsidiary Guarantee endorsed thereon and the Trustee shall authenticate and
deliver one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Note constituting a
Restricted Note to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes
to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall re-
-29-
flect on its books and records the date and an increase in the principal
amount of the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the Physical
Notes so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstances contemplated by paragraph (a)(i)(x) of this Section
2.16 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Note has been sold pursuant to an effective registration statement under
the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Notice to Trustee.
-----------------
If the Company elects to redeem Notes pursuant to Section 3.07 it
shall furnish to the Trustee, at least 30 but not more than 60 days before
notice of any redemption is to be mailed to Holders (or such shorter times as
may be satisfactory to the Trustee), an Officers' Certificate stating that the
Company has elected to redeem Notes pursuant to Section 3.07, the date notice of
redemption is to be mailed to Holders, the redemption date, the aggregate
principal amount of Notes to be redeemed, the redemption price for such Notes,
the amount of accrued and unpaid interest on such Notes as of the redemption
date and the manner in which Notes are to be selected for redemption if less
than all outstanding Notes are to be redeemed. If the Trustee is not the
Registrar, the Company shall, concurrently with delivery of its notice to the
Trustee of a redemption, cause the Registrar to deliver to the Trustee a
certificate (upon
-30-
which the Trustee may rely) setting forth the name of, and the aggregate
principal amount of Notes held by each Holder.
If the Company is required to offer to purchase Notes pursuant to
Section 4.13 or 4.14, it shall furnish to the Trustee, at least two Business
Days before notice of the corresponding Offer is to be mailed to Holders, an
Officers' Certificate setting forth that the Offer is being made pursuant to
Section 4.13 or 4.14, as the case may be, the Purchase Date, the maximum
principal amount of Notes the Company is offering to purchase pursuant to such
Offer, the purchase price for such Notes, and the amount of accrued and unpaid
interest on such Notes as of the Purchase Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased.
----------------------------------------------
If less than all outstanding Notes are to be redeemed or if less than
all Notes tendered pursuant to an Offer are to be accepted for payment, the
Company shall select the outstanding Notes to be redeemed or accepted for
payment in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not listed
on such an exchange, on a pro rata basis, by lot or by any other method that the
Trustee deems fair and appropriate; provided that Notes redeemed or accepted for
payment in part shall only be purchased in integral multiples of $1,000. If the
Company elects to mail notice of a redemption to Holders, the Company shall at
least five days prior to the date notice of redemption is to be mailed, (i)
select the Notes to be redeemed from Notes outstanding not previously called for
redemption, and (ii) notify the Trustee of the names of each Holder of Notes
selected for redemption, the principal amount of Notes held by each such Holder
and the principal amount of such Holder's Notes that are to be redeemed. If
less than all Notes tendered pursuant to an Offer are to be accepted for
payment, the Company shall select on or prior to the Purchase Date for such
Offer the Notes to be accepted for payment. The Company shall select for
redemption or purchase Notes or portions of Notes in principal amounts of $1,000
or integral multiples of $1,000; except that if all of the Notes of a Holder are
selected for redemption or purchase, the aggregate principal amount of the Notes
held by such Holder, even if not a multiple of $1,000, may be redeemed or
purchased. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption or tendered pursuant to an
Offer also apply to portions of Notes called for redemption or tendered pursuant
to an Offer. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be called for redemption or selected for purchase.
-31-
SECTION 3.03. Notice of Redemption.
--------------------
(a) At least 30 days but not more than 60 days before any redemption
date, the Company shall mail by first class mail a notice of redemption to each
Holder of Notes or portions thereof that are to be redeemed. With respect to
any redemption of Notes, the notice shall identify the Notes or portions thereof
to be redeemed and shall state: (1) the redemption date; (2) the redemption
price for the Notes and the amount of unpaid and accrued interest on such Notes
as of the date of redemption; (3) the paragraph of the Notes pursuant to which
the Notes called for redemption are being redeemed; (4) if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued; (5) the name and address of the Paying Agent; (6) that Notes called for
redemption must be surrendered to the Paying Agent to collect the redemption
price for, and any accrued and unpaid interest on, such Notes; (7) that, unless
the Company defaults in making such redemption payment, interest on Notes called
for redemption ceases to accrue on and after the redemption date; and (8) that
no representation is made as to the correctness or accuracy of the CUSIP number
listed in such notice and printed on the Notes.
(b) At the Company's request, the Trustee shall (at the Company's
expense) give the notice of any redemption to Holders; provided, however, that
the Company shall deliver to the Trustee, at least 45 days prior to the date of
redemption and at least 10 days prior to the date that notice of the redemption
is to be mailed to Holders, an Officers' Certificate that (i) requests the
Trustee to give notice of the redemption to Holders, (ii) sets forth the
information to be provided to Holders in the notice of redemption, as set forth
in the preceding paragraph, and (iii) sets forth the aggregate principal amount
of Notes to be redeemed and the amount of accrued and unpaid interest thereon as
of the redemption date. If the Trustee is not a Registrar, the Company shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, the address of, and the aggregate principal amount of Notes held by, each
Holder; provided, further, that any such Officers' Certificate may be delivered
to the Trustee on a date later than permitted under this Section 3.03(b) if such
later date is acceptable to the Trustee.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the redemption date at the price set forth in the
Note.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
(a) On or prior to 11:00 a.m. Eastern Standard Time on any redemption
date, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay
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the redemption price of, and accrued interest on, all Notes to be redeemed on
that date. After any redemption date, the Trustee or the Paying Agent shall
promptly return to the Company any money that the Company deposited with the
Trustee or the Paying Agent in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
(b) If the Company complies with the preceding paragraph, interest on
the Notes to be redeemed will cease to accrue on such Notes on the applicable
redemption date, whether or not such Notes are presented for payment. If a Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business of such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest will be paid on the unpaid principal, premium,
if any, and interest from the redemption date until such principal, premium and
interest is paid, at the rate of interest provided in the Notes and Section
4.01.
SECTION 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the Company's expense
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07. Redemption Provisions.
---------------------
Except as set forth below, the Notes are not redeemable at the
Company's option prior to March 1, 2006. Thereafter, the Notes will be subject
to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of the principal amount of the
Notes) set forth below, plus accrued and unpaid interest to the date of
redemption, if redeemed during the twelve-month period beginning on March 1, of
the years indicated below.
Year Percentage
---- ----------
2006.......................... 105.000%
2007.......................... 103.333%
2008.......................... 101.667%
2009 and thereafter........... 100.000%
Notwithstanding the foregoing, at any time prior to March 1, 2004, the
Company, at its option, may redeem the Notes, in part, with the net proceeds of
one or more Public
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Equity Offerings, at a redemption price equal to 110% of the principal amount
thereof, together with accrued and unpaid interest to the date of redemption;
provided, however, that after any such redemption the aggregate principal amount
of the Notes outstanding must equal at least 66 2/3% of the aggregate principal
amount of the Notes originally issued.
SECTION 3.08. Procedures Relating to Mandatory Offers.
---------------------------------------
(a) On the Purchase Date for any Offer, the Company will (i) in the
case of an Offer resulting from a Change of Control, accept for payment all
Notes or portions thereof tendered pursuant to such Offer and, in the case of an
Offer resulting from one or more Asset Sales, accept for payment the maximum
principal amount of Notes or portions thereof tendered pursuant to such Offer
that can be purchased out of Excess Proceeds from such Asset Sales to the extent
provided in Section 4.14(c), (ii) deposit with the Paying Agent the aggregate
purchase price of all Notes or portions thereof accepted for payment and any
accrued and unpaid interest on such Notes as of the Purchase Date, and (iii)
deliver, or cause to be delivered, to the Trustee all Notes tendered pursuant to
the Offer, together with an Officers' Certificate setting forth the name of each
Holder that tendered Notes and the principal amount of the Notes or portions
thereof tendered by each such Holder.
(b) With respect to any Offer, (i) if less than all of the Notes
tendered pursuant to an Offer are to be accepted for payment by the Company for
any reason consistent with this Indenture, the Trustee shall select on or prior
to the Purchase Date the Notes or portions thereof to be accepted for payment
pursuant to Section 3.02, and (ii) if the Company deposits with the Paying Agent
on or prior to the Purchase Date an amount sufficient to purchase all Notes
accepted for payment, interest shall cease to accrue on such Notes on the
Purchase Date; provided, however, that if the Company fails to deposit an amount
sufficient to purchase all Notes accepted for payment, the deposited funds shall
be used to purchase on a pro rata basis all Notes accepted for payment and
interest shall continue to accrue on all Notes not purchased.
(c) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Notes, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Note equal in principal amount
to the unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply with the
applicable tender offer
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rules, including the requirements of Rule 14e-1 under the Exchange Act, and all
other securities laws and regulations in connection with any Offer.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium, and Interest.
-------------------------------------------
Subject to the provisions of Article X, the Company shall pay the
principal of, and premium, if any, and interest on, the Notes on the dates and
in the manner provided in the Notes. Holders must surrender their Notes to the
Paying Agent to collect principal payments. Principal, premium, or interest
shall be considered paid on the date due if, by 11 a.m. Eastern Standard Time on
such date, the Company has deposited with the Paying Agent money in immediately
available funds designated for and sufficient to pay such principal, premium or
interest; provided, however, that principal, premium or interest shall not be
considered paid within the meaning of this Section 4.01 if money intended to pay
such principal, premium or interest is held by the Paying Agent for the benefit
of holders of Senior Debt of the Company pursuant to the provisions of Article
X. The Paying Agent shall return to the Company, no later than five days
following the date of payment, any money (including accrued interest) that
exceeds the amount then due and payable on the Notes.
To the extent lawful, the Company shall pay interest (including Post-
Petition Interest) on overdue principal, premium and interest (without regard to
any applicable grace period) at a rate equal to 2 % per annum in excess of the
then applicable interest rate on the Notes, compounded semiannually.
SECTION 4.02. Reports.
-------
Whether or not the Company is then subject to Section 13(a) or 15(d)
of the Exchange Act, the Company will file with the Commission, so long as any
Notes are outstanding, the annual reports, quarterly reports and other periodic
reports which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) if the Company were so subject, and such
documents shall be filed with the Commission 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. The Company will also in
any event (i) within 15 days of each Required Filing Date, (a) transmit by mail
to all holders of Notes, as their names and addresses appear in the Note
register, without cost to such holders and (b) file with the Trustee copies of
the annual reports, quarterly reports and other periodic reports which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to
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such Sections and (ii) if filing such documents by the Company with the
Commission is prohibited under the Exchange Act, promptly upon written request
and payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder at the Company's cost.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee, within 135 days after the
end of each fiscal year of the Company, an Officers' Certificate, one of the
signers of which shall be the principal executive, principal financial or
principal accounting officer of the Company stating that (i) a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made to determine whether the Company has kept, observed, performed and
fulfilled all of its obligations under this Indenture and the Notes, (ii) such
review was supervised by the Officers of the Company signing such certificate,
and (iii) that to the best knowledge of each Officer signing such certificate,
(a) the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default occurred, describing all such Defaults or
Events of Default of which each such Officer may have knowledge and what action
the Company has taken or proposes to take with respect thereto), and (b) no
event has occurred and remains in existence by reason of which payments on
account of the principal of, or premium, if any, or interest on, the Notes are
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.02 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation reasonably satisfactory to the Trustee) that
in making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Sections 4.01, 4.05, 4.07, 4.08,
4.09, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 or Article V or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
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The Company will, so long as any of the Notes are outstanding, deliver
to the Trustee, promptly after any Officer of the Company becomes aware of any
Default or Event of Default, an Officers' Certificate specifying such Default,
Event of Default or default or event of default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.04. Stay, Extension and Usury Laws.
------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the covenants
or the performance of its obligations under this Indenture and Notes; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power granted to
the Trustee pursuant to this Indenture, but will suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.05. Limitation on Restricted Payments.
---------------------------------
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless at
the time of and immediately after giving effect to the proposed Restricted
Payment (with the value of any such Restricted Payment, if other than cash, to
be determined by the Board of Directors of the Company, whose determination
shall be conclusive and evidenced by a board resolution), (i) no Default or
Event of Default (and no event that, after notice or lapse of time, or both,
would become an "event of default" under the terms of any indebtedness of the
Company or its Restricted Subsidiaries) shall have occurred and be continuing or
would occur as a consequence thereof, (ii) the Company could incur at least
$1.00 of additional Indebtedness pursuant to the provisions of Section 4.07(a)
and (iii) the aggregate amount of all Restricted Payments made after September
30, 1994 shall not exceed the sum of (a) an amount equal to the Company's
Cumulative Operating Cash Flow less 1.4 times the Company's Cumulative
Consolidated Interest Expense, plus (b) the aggregate amount of all net cash
proceeds received after September 30, 1994 by the Company (but excluding the net
cash proceeds received by the Company from its initial public offering of Class
A Common Stock on or about November 14, 1994) from the issuance and sale (other
than to a Restricted Subsidiary) of Capital Stock (other than Disqualified
Stock) to the extent that such proceeds are not used to redeem, repurchase,
retire or otherwise acquire Capital Stock or any Indebtedness of the Company or
any Restricted Subsidiary pursuant to clause (ii) of Section 4.05(b).
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(b) The provisions of Section 4.05(a) will not prohibit, so long as
there is no Default or Event of Default continuing, the following actions
(collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such payment would have
been permitted under this Indenture, and such payment shall be deemed to
have been paid on such date of declaration for purposes of clause (iii) of
Section 4.05(a); and
(ii) the redemption, repurchase, retirement or other acquisition of
any Capital Stock or any Indebtedness of the Company in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than to a
Restricted Subsidiary) of Capital Stock of the Company (other than any
Disqualified Stock).
SECTION 4.06. Corporate Existence.
-------------------
Subject to Section 4.14 and Article V, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each of
its Restricted Subsidiaries in accordance with the respective organizational
documents of each of its Restricted Subsidiaries and the rights (charter and
statutory), licenses and franchises of the Company and each of its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Restricted Subsidiary, 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 its Restricted Subsidiaries taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders.
SECTION 4.07. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
--------------------------------------------------------
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Debt) or issue any Disqualified Stock if, at
the time of and immediately after giving pro forma effect to such incurrence of
Indebtedness or issuance of Disqualified Stock, the Debt to Operating Cash Flow
Ratio of the Company and its Restricted Subsidiaries is more than 7.0:1;
provided that any Indebtedness that is not Senior Debt that is permitted to be
incurred hereunder by the Company or any Restricted Subsidiary shall, at the
time of incurrence, have a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of the Notes.
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(b) Section 4.07(a) will not apply to the incurrence of any of the
following (collectively, "Permitted Indebtedness"):
(i) Senior Bank Debt arising under the Credit Agreement;
(ii) Indebtedness of any Restricted Subsidiary consisting of a
guarantee of the Company's Senior Bank Debt under the New Credit Agreement;
(iii) Indebtedness of the Company represented by the Notes and
Indebtedness of any Subsidiary Guarantor represented by a Subsidiary
Guarantee;
(iv) Indebtedness owed by any Wholly Owned Restricted Subsidiary
to the Company or to another Wholly Owned Restricted Subsidiary, or owed by
the Company to any Wholly Owned Restricted Subsidiary; provided that any
such Indebtedness shall be at all times held by a Person which is either
the Company or a Wholly Owned Restricted Subsidiary of the Company; and
provided, further, that upon either (a) the transfer or other disposition
of any such Indebtedness to a Person other than the Company or another
Wholly Owned Restricted Subsidiary or (b) the sale, lease, transfer or
other disposition of shares of Capital Stock (including by consolidation or
merger) of any such Wholly Owned Restricted Subsidiary to a Person other
than the Company or another Wholly Owned Restricted Subsidiary, the
incurrence of such Indebtedness shall be deemed to be an incurrence that is
not permitted by this clause (iv);
(v) guarantees of any Restricted Subsidiary that are made in
accordance with the provisions of Section 4.15;
(vi) Indebtedness arising with respect to Interest Rate Agreement
Obligations incurred for the purpose of fixing or hedging interest rate
risk with respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding;
(vii) Purchase Money Indebtedness and Capital Lease Obligations
which do not exceed, as determined in accordance with GAAP, $10,000,000 in
the aggregate at any one time outstanding;
(viii) any Indebtedness incurred in connection with or given in
exchange for the renewal, extension, substitution, refunding, defeasance,
refinancing or replacement of any Indebtedness described in clauses (i),
(ii) and (iii) above ("Refinancing Indebtedness"); provided that (a) the
principal amount of such Refinancing Indebtedness shall not exceed the
principal amount of the Indebtedness so renewed, extended, sub-
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stituted, refunded, defeased, refinanced or replaced (plus the premiums
paid in connection therewith (which shall not exceed the stated amount of
any premium or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being renewed,
extended, substituted, refunded, defeased, refinanced or replaced) and the
expenses incurred in connection therewith); (b) with respect to Refinancing
Indebtedness of any Indebtedness other than Senior Debt, the Refinancing
Indebtedness shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness
being renewed, extended, substituted, refunded, defeased, refinanced or
replaced; and (c) with respect to Refinancing Indebtedness of Indebtedness
other than Senior Debt incurred by (1) the Company, such Refinancing
Indebtedness shall rank no more senior, and shall be at least as
subordinated, in right of payment to the Notes as the Indebtedness being
renewed, extended, substituted, refunded, defeased, refinanced or replaced,
and (2) a Subsidiary Guarantor, such Refinancing Indebtedness shall rank no
more senior, and shall be at least as subordinated, in right of payment to
the Subsidiary Guarantee as the Indebtedness being renewed, extended,
substituted, refunded, defeased, refinanced or replaced;
(ix) Indebtedness of the Company in addition to that described
in clauses (i) through (viii) above, and any renewals, extensions,
substitutions, refinancings or replacements of such Indebtedness, so long
as the aggregate principal amount of all such Indebtedness incurred
pursuant to this clause (ix) does not exceed $15,000,000 at any one time
outstanding.
SECTION 4.08. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any Affiliate
of the Company (other than the Company or a Wholly Owned Restricted Subsidiary)
unless (i) such transaction or series of transactions is on terms that are no
less favorable to the Company or such Restricted Subsidiary, as the case may be,
than would be available in a comparable transaction in arm's-length dealings
with an unrelated third party, and (ii) (a) with respect to any transaction or
series of transactions involving aggregate payments in excess of $1,000,000, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (i) above and
such transaction or series of related transactions has been approved by a
majority of the members of the Board of Directors of the Company (and approved
by a majority of the Independent Directors or, in the event there is only one
Independent Director, by such Independent Director), and (b) with respect to any
transaction or series of transactions involving aggregate payments in excess of
$5,000,000, an opinion as to the fairness to the Company or
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such Restricted Subsidiary from a financial point of view issued by an
investment banking firm of national standing. Notwithstanding the foregoing,
this provision will not apply to (i) employment agreements or compensation or
employee benefit arrangements with any officer, director or employee of the
Company entered into in the ordinary course of business (including customary
benefits thereunder), (ii) any transaction entered into by or among the Company
or one of its Wholly Owned Restricted Subsidiaries with one or more Wholly Owned
Restricted Subsidiaries of the Company, and (iii) the national advertising
representation agreements between the Company (or any of its Restricted
Subsidiaries) and Xxxx Xxxxx, Inc. existing on the date of this Indenture (and
any renewals, extensions or replacements thereof, and any future such agreements
with respect to television stations acquired by the Company or its Restricted
Subsidiaries after the date of this Indenture, so long as such renewals,
extensions, replacements or future agreements are on terms substantially similar
to those of such existing agreements) and other transactions in existence on the
date of this Indenture and described or referred to in the Final Memorandum,
under the caption "Certain Transactions."
SECTION 4.09. Limitation on Liens.
-------------------
The Company will not, and will not permit any Subsidiary Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien (other
than Permitted Liens) on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom to secure any Indebtedness; provided that in addition to creating
Permitted Liens on its properties or assets, (i) the Company may create any Lien
upon any of its properties or assets (including, but not limited to, any Capital
Stock of its Subsidiaries) if the Notes are equally and ratably secured thereby,
and (ii) a Subsidiary Guarantor may create any Lien upon any of its properties
or assets (including, but not limited to, any Capital Stock of its Subsidiaries)
if its Subsidiary Guarantee is equally and ratably secured thereby; provided,
however, that if (a) the Company creates any Lien on its assets to secure any
Subordinated Indebtedness of the Company, the Lien securing such Subordinated
Indebtedness shall be subordinated and junior to the Lien securing the Notes
with the same or lesser priorities as the Subordinated Indebtedness shall have
with respect to the Notes, and (b) a Subsidiary Guarantor creates any Lien on
its assets to secure any Subordinated Indebtedness of such Subsidiary Guarantor,
the Lien securing such Subordinated Indebtedness shall be subordinated and
junior to the Lien securing the Subsidiary Guarantee of such Subsidiary
Guarantor with the same or lesser priorities as the Subordinated Indebtedness
shall have with respect to the Subordinated Guarantee.
SECTION 4.10. Taxes.
-----
The Company shall, and shall cause each of its Restricted Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies the
failure of which to pay
-41-
could reasonably be expected to result in a material adverse effect on the
condition (financial or otherwise), business or results of operations of the
Company and its Restricted Subsidiaries taken as a whole, except for those taxes
contested in good faith by appropriate proceedings.
SECTION 4.11. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
----------------------------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions to
the Company or any other Restricted Subsidiary on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
or pay any Indebtedness owed to the Company or any other Restricted Subsidiary,
(ii) make loans or advances to the Company or any other Restricted Subsidiary,
or (iii) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (a) the Credit Agreement as in effect on the Issue Date,
and any amendments, restatements, renewals, replacements or refinancings
thereof; provided that such amendments, restatements, renewals, replacement or
refinancings are no more restrictive in the aggregate with respect to such
dividend and other payment restrictions than those contained in the Credit
Agreement (or, if more restrictive, than those contained in this Indenture)
immediately prior to any such amendment, restatement, renewal, replacement or
refinancing, (b) applicable law, (c) any instrument governing Indebtedness or
Capital Stock of an Acquired Person by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with such acquisition); provided
that (1) such restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Acquired Person, and (2) the consolidated
net income of an Acquired Person for any period prior to such acquisition shall
not be taken into account in determining whether such acquisition was permitted
by the terms of this Indenture, (d) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (e) Purchase Money Indebtedness for property
acquired in the ordinary course of business that only impose restrictions on the
property so acquired, (f) an agreement for the sale or disposition of the
Capital Stock or assets of such Restricted Subsidiary; provided that such
restriction is only applicable to such Restricted Subsidiary or assets, as
applicable, and such sale or disposition otherwise is permitted under the
covenant described under Section 4.14; and provided, further, that such
restriction or encumbrance shall be effective only for a period from the
execution and delivery of such agreement through a termination date not later
than 270 days after such execution and delivery, (g) Refinancing Indebtedness
permitted under this Indenture; provided that the restrictions contained in the
agreements governing such Refinancing Indebtedness are no more
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restrictive in the aggregate than those contained in the agreements governing
the Indebtedness being refinanced immediately prior to such refinancing or (h)
this Indenture.
SECTION 4.12. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or an agency (which may be an office of any Agent) where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
any change in the location of such office or agency. If at any time the Company
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.
The Company may also from time to time designate one or more other
offices or agencies where the Notes 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 matter relieve the
Company of its obligations to maintain an office or agency in the Borough of
Manhattan, the City of 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.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
SECTION 4.13. Change of Control.
-----------------
(a) In the event of a Change of Control, each Holder will have the
right, subject to Section 4.13(c) and the other terms and conditions of this
Indenture, to require the Company to offer to repurchase all or any portion
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest to the date of purchase (a "Change of Control
Offer").
(b) Within 30 days following the occurrence of any Change of Control,
the Company shall mail to each holder of Notes at such holder's registered
address a notice stating: (i) that a Change of Control has occurred and that
such holder has the right to require the Company to repurchase all or a portion
(equal to $1,000 or an integral multiple thereof) of such holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest to the date of purchase (the "Change of Control
Purchase Date"), which shall be a Business Day, specified in such notice, that
is not
-43-
earlier than 30 days or later than 60 days from the date such notice is mailed,
(ii) the amount of accrued and unpaid interest as of the Change of Control
Purchase Date, (iii) that any Note not tendered will continue to accrue
interest, (iv) that, unless the Company defaults in the payment of the purchase
price for the Notes payable pursuant to the Change of Control Offer, any Notes
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date, (v) that Holders
electing to tender any Note or portion thereof will be required to surrender
their Note, with a form entitled "Option of Holder to Elect Purchase" completed,
to the Paying Agent. at the address specified in the notice prior to the close
of business on the Business Day preceding the Change of Control Purchase Date;
provided that Holders electing to tender only a portion of any Note must tender
a principal amount of $1,000 or integral multiples thereof; (vi) that Holders
will be entitled to withdraw their election to tender Notes if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Note purchased; and (vii) that Holders
whose Notes are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered; provided that
only Notes in a principal amount of $1,000 or integral multiples thereof will be
accepted for payment in part.
(c) In the event that a Change of Control occurs at a time when the
Company is prohibited from repurchasing the Notes by the New Credit Agreement or
any other agreement governing Senior Debt of the Company, the Company will seek
to either repay such Senior Debt or obtain the requisite consents of the holders
of such Senior Debt to commence a Change of Control Offer to repurchase the
Notes within 30 days of the occurrence of the Change of Control; provided,
however, that the failure of the Company either to repay such Senior Debt or to
obtain such consents shall in no way affect the right of each Holder to have its
Notes repurchased or relieve the Company of its obligation hereunder to commence
such a Change of Control Offer and to repurchase the Notes pursuant to Sections
4.13(a) and 4.13(b) hereof.
SECTION 4.14. Limitation on Asset Sales.
-------------------------
(a) The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value (as evidenced by a resolution of
the Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the assets or other property sold or disposed of in the Asset Sale,
and (ii) at least 75% of such consideration is in the form of cash or Cash
Equivalents; provided that for purposes of this covenant "cash" shall include
the amount of any liabilities (other than liabilities that are by their terms
subordinated to the Notes or any Subsidiary Guarantee) of the
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Company or such Restricted Subsidiary (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto) that
are assumed by the transferee of any such assets or other property in such Asset
Sale (and excluding any liabilities that are incurred in connection with or in
anticipation of such Asset Sale), but only to the extent that such assumption is
effected on a basis under which there is no further recourse to the Company or
any of its Restricted Subsidiaries with respect to such liabilities.
(b) Within 360 days after any Asset Sale, the Company may elect to
apply the Net Proceeds from such Asset Sale to (i) permanently reduce any Senior
Debt of the Company, and/or (ii) make an investment in, or acquire assets
directly related to, the television broadcasting business. Pending the final
application of any such Net Proceeds, the Company may temporarily reduce Senior
Bank Debt of the Company or temporarily invest such Net Proceeds in any manner
permitted by this Indenture. Any Net Proceeds from an Asset Sale not applied or
invested as provided in the first sentence of this paragraph within 360 days of
such Asset Sale will be deemed to constitute "Excess Proceeds."
(c) As soon as practical, but in no event later than 10 Business Days
after any date (an "Asset Sale Offer Trigger Date") that the aggregate amount of
Excess Proceeds exceeds $5,000,000, the Company shall, if and to the extent
permitted by the agreements governing any Senior Debt of the Company and the
Existing Notes Indenture as in existence on the Issue Date, commence an offer to
purchase the maximum principal amount of Notes and other Indebtedness of the
Company that ranks pari passu in right of payment with the Notes (to the extent
required by the instrument governing such other Indebtedness) that may be
purchased out of the Excess Proceeds (an "Asset Sale Offer"); provided that
prior to making any such Asset Sale Offer the Company may, to the extent
required pursuant to the Existing Notes Indentures as in existence on the Issue
Date, use all or a portion of such Excess Proceeds to redeem Existing Notes.
Any Notes and other Indebtedness to be purchased pursuant to an Asset Sale Offer
shall be purchased pro rata based on the aggregate principal amount of Notes and
such other Indebtedness outstanding and all Notes shall be purchased at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest to the date of purchase. To the extent that any
Excess Proceeds remain after completion of an Asset Sale Offer, the Company may
use the remaining amount for general corporate purposes. In the event that the
Company is prohibited under the terms of any agreement governing outstanding
Senior Debt of the Company from repurchasing Notes with Excess Proceeds pursuant
to an Asset Sale Offer as set forth in the first sentence of this Section
4.14(c), the Company shall promptly use all Excess Proceeds to permanently
reduce such outstanding Senior Debt of the Company.
(d) Within 30 days following the occurrence of any Asset Sale Offer
Trigger Date, the Company shall mail to each holder of Notes at such holder's
registered address a notice stating: (i) that an Asset Sale Offer Trigger Date
has occurred and that the Company is
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offering to purchase the maximum principal amount of Notes that may be purchased
out of the Excess Proceeds (to the extent provided in the foregoing clause (c)),
at an offer price in cash in an amount equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to the date of purchase (the "Asset
Sale Offer Purchase Date"), which shall be a Business Day, specified in such
notice, that is not earlier than 30 days or later than 60 days from the date
such notice is mailed, (ii) the amount of accrued and unpaid interest as of the
Asset Sale Offer Purchase Date, (iii) that any Note not tendered will continue
to accrue interest, (iv) that, unless the Company defaults in the payment of the
purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Asset Sale Offer Purchase Date, (v) that Holders electing to
tender any Note or portion thereof will be required to surrender their Note,
with a form entitled "Option of Holder to Elect Purchase" completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Asset Sale Offer Purchase Date;
provided that Holders electing to tender only a portion of any Note must tender
a principal amount of $1,000 or integral multiples thereof, (vi) that Holders
will be entitled to withdraw their election to tender Notes if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Asset Sale Offer Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Note purchased; and (vii) that Holders
whose Notes are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered; provided that
only Notes in a principal amount of $1,000 or integral multiples thereof will be
accepted for payment in part.
SECTION 4.15. Limitation on Guarantees of Company Indebtedness by Restricted
Subsidiaries.
--------------------------------------------------------------
(a) In the event that any Restricted Subsidiary, directly or
indirectly, guarantees any Indebtedness of the Company other than the Notes (the
"Other Indebtedness") the Company shall cause such Restricted Subsidiary to
concurrently guarantee (an "Additional Guarantee") the Company's Obligations
under this Indenture and the Notes to the same extent that such Restricted
Subsidiary guaranteed the Company's Obligations under the Other Indebtedness
(including waiver of subrogation, if any); provided that if such Other
Indebtedness is (i) Senior Debt, the Additional Guarantee shall be subordinated
in right of payment to the guarantee of such Other Indebtedness, in the same
manner and to the same extent as the Notes are subordinated to Senior Debt
pursuant to the subordination provisions of this Indenture, and such Additional
Guarantee shall be on the same terms and subject to the same conditions as the
Initial Guarantees given under this Indenture, (ii) Senior Subordinated
Indebtedness, the Additional Guarantee shall be pari passu in right of payment
with the guarantee of the Other Indebtedness, or (iii) Subordinated
Indebtedness, the Additional Guarantee shall be
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senior in right of payment to the guarantee of the Other Indebtedness; provided,
however, that each Additional Guarantee shall by its terms provide that the
Additional Guarantor making such Additional Guarantee will be automatically and
unconditionally released and discharged from its obligations under such
Additional Guarantee upon the release or discharge of the guarantee of the Other
Indebtedness that resulted in the creation of such Additional Guarantee, except
a discharge or release by, or as a result of, any payment under the guarantee of
such Other Indebtedness by such Additional Guarantor.
(b) To the extent that any Restricted Subsidiary is required to become
an Additional Guarantor pursuant to Section 4.15(a), the Company and each
Subsidiary Guarantor shall cause such Restricted Subsidiary to execute such
instruments and take such actions as the Trustee may require to evidence the
Additional Guarantee required under Section 4.15(a).
SECTION 4.16. Limitation on Incurrence of Senior Subordinated Debt.
----------------------------------------------------
(a) The Company will not, directly or indirectly, incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness that is
subordinated or junior in right of payment to any Senior Debt of the Company and
senior in any respect in right of payment to the Notes, and (b) the Company will
not, directly or indirectly, permit any Subsidiary Guarantor to incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness that is
subordinated or junior in right of payment to its Senior Debt and senior in any
respect in right of payment to its Subsidiary Guarantee.
SECTION 4.17. Limitation on Subsidiary Capital Stock.
--------------------------------------
The Company will not permit any Restricted Subsidiary of the Company to
issue any Capital Stock, except for (i) Capital Stock issued to and held by the
Company or a Wholly Owned Restricted Subsidiary, and (ii) Capital Stock issued
by a Person prior to the time (a) such Person becomes a Restricted Subsidiary,
(b) such Person merges with or into a Restricted Subsidiary or (c) a Restricted
Subsidiary merges with or into such Person; provided that such Capital Stock was
not issued by such Person in anticipation of the type of transaction
contemplated by clauses (a), (b) or (c).
SECTION 4.18. Future Subsidiary Guarantors.
----------------------------
The Company and each Subsidiary Guarantor shall cause each Restricted
Subsidiary of the Company which, after the date of this Indenture (if not then a
Subsidiary Guarantor), becomes a Restricted Subsidiary to execute and deliver an
indenture supplemental to this Indenture and thereby become an Additional
Guarantor which shall be bound by the Guarantee of the Notes in the form set
forth in this Indenture (without such Additional Guarantor being required to
execute and deliver the Guarantee endorsed on the Notes).
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SECTION 4.19. Limitation on Certain Transfers of Assets.
-----------------------------------------
The Company and the Subsidiary Guarantors will not sell, convey,
transfer or otherwise dispose of their respective assets or properties to any of
the Company's Subsidiaries (other than another Subsidiary Guarantor), except for
sales, conveyances, transfers or other dispositions made in the ordinary course
of business and except for capital contributions to any Restricted Subsidiary,
the only material assets of which are broadcast licenses. For purposes of this
provision, any sale, conveyance, transfer, lease or other disposition of
property or assets, having a fair market value in excess of (i) $1,000,000 for
any sale, conveyance, transfer, lease or disposition or series of related sales,
conveyances, transfers, leases and dispositions and (ii) $5,000,000 in the
aggregate for all such sales, conveyances, transfers, leases or dispositions in
any fiscal year of the Company shall not be considered "in the ordinary course
of business."
SECTION 4.20. Maintenance of Properties.
-------------------------
The Company will cause all properties used in the conduct of its
business or the business of any Restricted 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 advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or any Restricted Subsidiary
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, as determined by the Board of Directors of the Company
in good faith, desirable in the conduct of its business or the business or any
of its Restricted Subsidiaries.
SECTION 4.21. Maintenance of Insurance.
------------------------
The Company shall, and shall cause each of its Restricted 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 usually is so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
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ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.
----------------------------------------
(a) The Company shall not consolidate or merge with or into (whether
or not the Company is the Surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (i) the
Surviving Person is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the Surviving
Person (if other than the Company) assumes all the obligations of the Company
under this Indenture and the Notes pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee; (iii) at the time of and
immediately after such Disposition, no Default or Event of Default shall have
occurred and be continuing; and (iv) the Surviving Person will (A) have
Consolidated Net Worth (immediately giving effect to the Disposition on a pro
forma basis) equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction, and (B) at the time of such Disposition
and after giving pro forma effect thereto, the Surviving Person would be
permitted to issue at least $1.00 of additional Indebtedness pursuant to Section
4.07(a).
(b) In the event of a sale of all or substantially all of the assets
of any Subsidiary Guarantor or all of the Capital Stock of any Subsidiary
Guarantor, by way of merger, consolidation or otherwise, the Surviving Person of
any such merger or consolidation, or such Subsidiary Guarantor if all of its
capital stock is sold, shall be released and relieved of any and all Obligations
under the Subsidiary Guarantee of such Subsidiary Guarantor if (i) the person or
entity surviving such merger or consolidation or acquiring the capital stock of
such Subsidiary Guarantor is not a Subsidiary of the Company, and (ii) the Net
Proceeds from such sale are used after such sale in a manner that complies with
the provisions of Section 4.14 concerning the disposition of Net Proceeds from
an Asset Sale.
(c) Except as provided in Section 5.01(b), no Subsidiary Guarantor
shall consolidate with or merge with or into another Person, whether or not such
Person is affiliated with such Subsidiary Guarantor and whether or not such
Subsidiary Guarantor is the Surviving Person, unless (i) the Surviving Person is
a corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) the Surviving Person (if other
than such Subsidiary Guarantor) assumes all the Obligations of such Subsidiary
Guarantor under this Indenture and the Notes pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee; (iii) at the time of
and immediately after such Disposition, no Default or Event of Default shall
have occurred and be continuing; and (iv) the Surviving Person will have
Consolidated Net Worth (immediately after giving pro forma effect to
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the Disposition) equal to or greater than the Consolidated Net Worth of such
Subsidiary Guarantor immediately preceding the transaction; provided, however,
that clause (iv) of this Section 5.01(c) shall not be a condition to a merger or
consolidation of a Subsidiary Guarantor if such merger or consolidation only
involves the Company and/or one or more Wholly Owned Restricted Subsidiaries of
the Company.
(d) Prior to the consummation of any proposed Disposition, merger or
consolidation of the Company or a Subsidiary Guarantor or the sale of all or
substantially all of the assets of the Company or a Subsidiary Guarantor, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
transaction complies with this Indenture and an Opinion of Counsel stating that
such transaction and the supplemental indenture, if required, comply with this
Indenture.
SECTION 5.02. Surviving Person Substituted.
----------------------------
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Sections 5.01(a) or (c) in which the
Company or any Subsidiary Guarantor is not the Surviving Person and the
Surviving Person is to assume all the obligations of the Company or any such
Subsidiary Guarantor under the Notes and this Indenture pursuant to a
supplemental indenture, such Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or such
Subsidiary Guarantor, as the case may be, and the Company or such Subsidiary
Guarantor, as the case may be, would be discharged from its obligations under
this Indenture, the Notes or its Subsidiary Guarantee, as the case may be.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
(a) Each of the following constitutes an "Event of Default":
(i) a default for 30 days in the payment when due of interest on
any Note (whether or not prohibited by the subordination provisions of this
Indenture);
(ii) a default in the payment when due of principal on any Note
(whether or not prohibited by the subordination provisions of this
Indenture), whether upon maturity, acceleration, optional or mandatory
redemption, required repurchase or otherwise;
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(iii) failure to perform or comply with any covenant, agreement or
warranty in this Indenture (other than the defaults specified in clauses
(i) and (ii) above) which failure continues (A) in the case of any such
covenant, agreement or warranty contained in Sections 4.05, 4.07, 4.14 and
5.01, for 30 days after written notice thereof has been given to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the then outstanding Notes
and (B) in the case of any other such covenant, agreement or warranty
contained in this Indenture, for 60 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the then
outstanding Notes;
(iv) the occurrence of one or more defaults under any agreements,
indentures or instruments under which the Company, any Subsidiary Guarantor
or any other Restricted Subsidiary then has outstanding Indebtedness in
excess of $5,000,000 in the aggregate and, if not already matured at its
final maturity in accordance with its terms, such Indebtedness shall have
been accelerated;
(v) except as permitted by this Indenture, any Subsidiary
Guarantee shall for any reason cease to be, or be asserted in writing by
any Subsidiary Guarantor or the Company not to be, in full force and
effect, and enforceable in accordance with its terms;
(vi) one or more judgments, orders or decrees for the payment of
money in excess of $5,000,000, either individually or in the aggregate (net
of amounts covered by reputable and credit worthy insurance company, or by
bond, surety or similar instrument) shall be entered against the Company,
any Subsidiary Guarantor or any other Restricted Subsidiary or any of their
respective properties and which judgments, orders or decrees are not paid,
discharged, bonded or stayed for a period of 60 days after their entry;
(vii) any holder or holders of at least $5,000,000 in aggregate
principal amount of Indebtedness of the Company, any Subsidiary Guarantor
or any other Restricted Subsidiary after a default under such Indebtedness
shall notify the Trustee of the intended sale or disposition of any assets
of the Company, any Subsidiary Guarantor or any other Restricted Subsidiary
with an aggregate fair market value (as determined in good faith by the
Company's Board of Directors) of at least $500,000 that have been pledged
to or for the benefit of such holder or holders to secure such Indebtedness
or shall commence proceedings, or take any action (including by way of set
off), to retain in satisfaction of such Indebtedness or to collect on,
seize, dispose of or apply in satisfaction of such Indebtedness, such
assets of the Company, any Subsidiary
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Guarantor or any other Restricted Subsidiary (including funds on deposit or
held pursuant to lock-box and other similar arrangements);
(viii) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company, any Subsidiary Guarantor or any other Restricted Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy Law or (b) a
decree or order adjudging the Company, any Subsidiary Guarantor or any
other Restricted Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company, any Subsidiary Guarantor or any other Restricted Subsidiary
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, any Subsidiary Guarantor or any other Restricted
Subsidiary or of any substantial part of their respective properties, or
ordering the winding up or liquidation of their affairs, and any such
decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
days; or
(ix) (a) the Company, any Subsidiary Guarantor or any other
Restricted Subsidiary commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (b) the Company, any Subsidiary Guarantor or any
other Restricted Subsidiary consents to the entry of a decree or order for
relief in respect of the Company, such Subsidiary Guarantor or such
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c) the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary files a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, (d) the Company, any Subsidiary Guarantor or any other
Restricted Subsidiary (x) consents to the filing of such petition or the
appointment of or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company,
such Subsidiary Guarantor or such Restricted Subsidiary or of any
substantial part of their respective property, (y) makes an assignment for
the benefit of creditors or (z) admits in writing its inability to pay its
debts generally as they become due or (e) the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary takes any corporate action in
furtherance of any such actions in this paragraph (ix).
(b) Any notice of default delivered to the Company by the Trustee or
by Holders of Notes with a copy to the Trustee must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
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SECTION 6.02. Acceleration.
------------
(a) If any Event of Default (other than an Event of Default specified
under Section 6.01(a)(viii) or (ix)) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may, and the Trustee at the request of such holders shall,
declare all the Notes to be due and payable immediately; provided, however, that
if any Indebtedness is outstanding pursuant to the New Credit Agreement upon a
declaration of acceleration of the Notes, the principal and interest on the
Notes will not be payable until the earlier of (1) the day which is five
Business Days after notice of acceleration is given to the Company and the
representative of the lenders under the New Credit Agreement, and (2) the date
of acceleration of the Indebtedness under the New Credit Agreement.
Notwithstanding the foregoing, in the case of an Event of Default arising from
the events specified in Sections 6.01(a)(viii) or (ix), the principal of,
premium, if any, and any accrued and unpaid interest on all outstanding Notes
shall ipso facto become immediately due and payable without further action or
notice.
(b) In the event of a declaration of acceleration of the Notes because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in Section 6.01(a)(iv), the
declaration of acceleration of the Notes shall be automatically annulled if the
holders of any Indebtedness described in Section 6.01(a)(iv) have rescinded the
declaration of acceleration in respect of such Indebtedness within 15 Business
Days of the date of such declaration and if (a) the annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction, and (b) all existing Events of Default, except
non-payment of principal or interest on the Notes that became due solely because
of the acceleration of the Notes, have been cured or waived.
(c) The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may rescind any declaration of
acceleration of such Notes and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Defaults and Events of
Default (other than the nonpayment of principal or premium, if any, or interest
on, the Notes which shall have become due by such declaration) shall have been
cured or waived.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, or premium, if any,
or interest on, the Notes or to enforce the performance of any provision of the
Notes or this Indenture. The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
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constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under this Indenture except (i) a continuing Default or Event of Default in the
payment of the principal of, or premium, if any, or interest on, the Notes
(which may only be waived with the consent of each Holder of Notes affected), or
(ii) in respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Note outstanding.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefore shall deemed to have been cured for every purpose of
this Indenture; provided that no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority of Holders.
------------------------------
Subject to Section 7.01(e), the Holders of a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it by this Indenture. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
SECTION 6.06. Limitation of Suits by Holders.
------------------------------
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if: (1) the Holder gives to the Trustee notice of a continuing Event
of Default; (2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy; (3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss liability or expense; (4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of indemnity;
and (5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request. A Holder may not use this Indenture to
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder. Holders of the Notes may not enforce this Indenture,
except as provided herein.
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SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, but subject to
Article X, the right of any Holder to receive payment of principal of, and
premium, if any, and interest on, a Note, on or after a respective due date
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective date, shall not be impaired or affected without the
consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for (i) the
principal, premium, if any, and interest remaining unpaid on the Notes, (ii)
interest on overdue principal and premium, if any, and, to the extent lawful,
interest, and (iii) 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
("Trustee Expenses").
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable to have the claims of the Trustee (including
any claim for Trustee Expenses and for amounts due under Section 7.07) and the
Holders allowed in any Insolvency or Liquidation Proceeding relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute to Holders
any money or other property payable or deliverable on any such claims and each
Holder authorizes any Custodian in any such Insolvency or Liquidation Proceeding
to make such payments to the Trustee, and if the Trustee shall consent to the
making of such payments directly to the Holders any such Custodian is hereby
authorized to make such payments directly to the Holders, and to pay to the
Trustee any amount due to it hereunder for Trustee Expenses, and any other
amounts due the Trustee under Section 7.07; provided, however, that the Trustee
shall not be authorized to (i) consent to, accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or (ii) vote in respect of the
claim of any Holder in any such Insolvency or Liquidation Proceeding. To the
extent that the payment of any such Trustee Expenses, and any other amounts due
the Trustee under Section 7.07 out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
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SECTION 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article VI, it
shall pay out the money in the following order:
First: to the Trustee for Trustee Expenses and for amounts due under
Section 7.07;
Second: to the holders of Senior Debt to the extent required by
Article X;
Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any,
and interest, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default occurs (and has not been cured) the
Trustee shall (i) exercise the rights and powers vested in it by this Indenture,
and (ii) use the same degree of
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care and skill in exercising such rights and powers as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default: (i) the Trustee's
duties shall be determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and (ii) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except, that: (i) this Section 7.01(c) does not limit the effect of
Section 7.01(b); (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction it receives pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee shall be subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as it may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(g) The Trustee shall not be charged with knowledge of any Event of
Default described in Section 6.01(a)(iii), (iv), (v), (vi), (vii), (viii) or
(ix) hereof unless a Trust Officer of the Trustee shall have actual knowledge of
such Event of Default.
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SECTION 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting on any document it believes to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel; provided that such action
or omission does not constitute gross negligence. The Trustee may consult with
counsel of its selection and 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 under this Indenture in good faith and in
reliance on such advice or opinion.
(c) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
in good faith that it believes to be authorized or within its rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not Trustee. However,
if the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee,
or resign. Each Agent shall have the same rights as the Trustee under this
Section 7.03.
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SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes; it shall not be
accountable for the Company's use of the proceeds from the Notes or for any
money paid to the Company or upon the Company's direction under any provisions
of this Indenture; it shall not be responsible for the use or application of any
money that any Paying Agent other than the Trustee receives; and, it shall not
be responsible for any statement or recital in this Indenture or any statement
in the Notes or any other document executed in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. Notice to Holders of Defaults and Events of Default.
---------------------------------------------------
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Note (including any failure to
redeem Notes called for redemption or any failure to purchase Notes tendered
pursuant to an Offer that are required to be purchased by the terms of this
Indenture), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers determines in good faith that withholding such notice is in
the Holders' interests.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15, beginning with May 15, 2001, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with Section 313(a) of the TIA (but if no event described in
Section 313 (a) of the TIA has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with Section 313(b)(2) of the TIA. The Trustee shall also transmit by mail all
reports as required by Section 313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the Commission and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing by the Company and the Trustee for
its services hereunder. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable dis-
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bursements, advances and expenses it incurs or makes in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses (including, without limitation, reasonable attorney's
fees and expenses) the Trustee incurs arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth below. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity; provided, however, that failure by the Trustee to
provide the Company with any such notice shall not relieve the Company of any of
its obligations under this Section 7.07. The Trustee shall cooperate in the
defense of any such claim. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The Company's obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture. The Company need not reimburse
any expense or indemnify against any loss or liability the Trustee incurs
through negligence or bad faith.
To secure payment of the Company's obligations under this Section 7.07,
the Trustee shall have a Lien prior to the Notes on all money or property the
Trustee holds or collects, except that held in trust or as security to pay
principal of, and premium, if any, and interest on, particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(a)(viii) or (ix) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law without any need to demonstrate substantial contribution under Bankruptcy
Law.
The Company and the Subsidiary Guarantors' payment obligations pursuant
to this Section 7.07 shall survive the resignation and removal of the Trustee
and the discharge of this Indenture.
SECTION 7.08. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
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The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in aggregate principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if: (i) the
Trustee fails to comply with Section 7.10; (ii) the Trustee is adjudged a
bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law; (iii) a Custodian or public officer takes
charge of the Trustee or its property; or (iv) the Trustee becomes incapable of
performing the services of the Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee; provided that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may appoint a successor Trustee to replace any
successor Trustee appointed by Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee; provided that all sums
owing to the retiring Trustee hereunder have been paid. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the retiring Trustee's benefit
with respect to expenses and liabilities relating to the retiring Trustee's
activities prior to being replaced.
SECTION 7.09. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to another corporation, the
successor corporation without any further act shall be the successor Trustee.
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SECTION 7.10. Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times (i) be a corporation organized and
doing business under the laws of the United States of America, of any state
thereof, or the District of Columbia authorized under such laws to exercise
corporate trust powers, (ii) be subject to supervision or examination by federal
or state authority, (iii) have a combined capital and surplus of at least $50
million as set forth in its most recently published annual report of condition,
and (iv) satisfy the requirements of Sections 310(a)(1),(2) and (5) of the TIA.
The Trustee is subject to Section 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
-------------------------------------------
(a) Subject to Sections 8.01(c), 8.02 and 8.06, this Indenture shall
cease to be of any further effect after (i) either the Company has delivered to
the Trustee all outstanding Notes (other than Notes replaced pursuant to Section
2.07) for cancellation or all outstanding Notes have become due and payable and
the Company has irrevocably deposited with the Trustee or a Paying Agent money
and/or U.S. Government Obligations in an amount sufficient (without reinvestment
thereof) to pay when due all principal of, premium, if any, and interest on, all
outstanding Notes (other than Notes replaced pursuant to Section 2.07), and (ii)
the Company pays all other sums payable under this Indenture.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at any
time may terminate (i) all its obligations under this Indenture and the Notes
("Legal Defeasance Option"), or (ii) its obligations under Sections 4.02, 4.03,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18,
4.19, 4.20, 4.21, Article V and the provisions of Article X ("Covenant
Defeasance Option"). The Company may exercise its Legal Defeasance Option
notwithstanding its prior exercise of its Covenant Defeasance Option.
If the Company exercises its Legal Defeasance Option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its Cove-
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nant Defeasance Option, payment of the Notes may not be accelerated because of
an Event of Default specified in 6.01(a)(iii), (iv), (v), (vi) or (vii).
Upon satisfaction of the conditions set forth in Section 8.02 and upon
the Company's request (and at the Company's expense), the Trustee shall
acknowledge in writing the discharge of those obligations that the Company has
terminated.
(c) Notwithstanding Sections 8.01(a) and (b), the Company's
obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 7.07, 7.08,
8.04, 8.05 and 8.06, and the obligations of the Trustee and the Paying Agent
under Section 8.04, shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations under Sections 7.07 and 8.05 and the
obligations of the Company, Trustee and Paying Agent under Section 8.04 shall
survive.
SECTION 8.02. Conditions to Defeasance.
------------------------
The Company may exercise its Legal Defeasance Option or its Covenant
Defeasance Option only if: (i) the Company irrevocably deposits in trust with
the Trustee or a Paying Agent money and/or U.S. Government Obligations in an
amount that, in the opinion of a nationally recognized firm of independent
accountants, is sufficient (without reinvestment thereof) for payment in full of
all principal of, and premium, if any, and interest on, the Notes when due;
provided, however, that the Company may only make such deposit if Article X does
not prohibit payments on the Notes at the time of the deposit; (ii) 91 days have
passed since the Company's irrevocable deposit pursuant to Section 8.02(i) (and
no Default or Event of Default specified in Section 6.01(a)(viii) or (ix) shall
have occurred at any time during such 91-day period); (iii) no other Default or
Event of Default shall have occurred and be continuing on the date of such
deposit and after giving effect to it; (iv) such deposit does not constitute a
default under any other agreement binding on the Company; (v) the Company
delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended; (vi) in
the case of a Legal Defeasance Option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (2) there
has been a change in applicable federal income tax law, in either case, to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize 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 amount, in the same manner and at the same time as would
have been the case if such deposit, defeasance and discharge had not occurred;
(vii) in the case of a Covenant Defeasance Option, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
will not recognize gain or loss for federal income tax purposes as a result of
such deposit and covenant de-
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feasance and will be subject to federal income tax on the same amount, in the
same manner and at the same time as would have been the case if such deposit and
covenant defeasance had not occurred; and (viii) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge of the Notes
contemplated by this Article VIII have been satisfied.
SECTION 8.03. Application of Trust Money.
--------------------------
The Trustee or Paying Agent shall hold in trust money and/or U.S.
Government Obligations deposited with it pursuant to this Article VIII. The
Trustee or Paying Agent shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of, and premium, if any, and interest on, the Notes. Money deposited
with the Trustee or a Paying Agent pursuant to this Article VIII shall not be
subject to the provisions of Article X.
SECTION 8.04. Repayment to Company.
--------------------
After the Notes have been paid in full, the Trustee and the Paying
Agent shall promptly turn over to the Company any excess money or securities
held by them.
Any money deposited with the Trustee or a Paying Agent pursuant to
this Article VIII for the payment of the principal of, premium, if any, or
interest on, any Note that remains unclaimed for two years after becoming due
and payable shall be paid to the Company on its written request; and the Holder
of such Note 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 money shall cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 8.05. Indemnity for U.S. Government Obligations.
-----------------------------------------
The Company shall pay and shall indemnify the Trustee and any Paying
Agent against any tax, fee or other charge imposed on or assessed against cash
and/or U.S. Government Obligations deposited with it pursuant to this Article
VIII or the principal and interest received on such cash and/or U.S. Government
Obligations.
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SECTION 8.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article VIII; provided, however, that if the Company has made any payment of
principal of, or premium, if any, or interest on, any Notes because of the
reinstatement of its obligations under this Indenture and the Notes, the Company
shall be subrogated to the Holders' rights to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted Without Consent of Holders.
---------------------------------------------------------------
(a) Notwithstanding Section 9.02, the Company and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder to: (i) cure any ambiguity, defect or inconsistency; (ii) provide for
uncertificated Notes in addition to or in place of certificated Notes; (iii)
provide for the assumption of the Company's obligations to the Holders in the
event of any Disposition involving the Company that is permitted under Article V
in which the Company is not the Surviving Person; (iv) make any change that
would (1) provide any additional rights or benefits to Holders or (2) not
adversely affect the interests of any Holder; or (v) comply with the
requirements of the Commission in order to effect or maintain the qualification
of this Indenture under the TIA.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended or
supplemental indenture, the Trustee shall join with the Company in the execution
of any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any future appropriate agreements and stipulations
that may be contained in any such amended or supplemental indenture, but the
Trustee shall not be obligated to enter into an amended or supplemental
indenture that affects its own rights, duties, or immunities under this
Indenture or otherwise.
-65-
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders.
-------------------------------------------------------
(a) Except as otherwise provided in Sections 9.01(a) and 9.02(c),
this Indenture and the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and any existing Default or Event
of Default or compliance with any provision of this Indenture or the Notes may
be waived with the consent of Holders of at least a majority in principal of the
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes).
(b) Upon the Company's request and after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.06, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties, or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but not be obligated to, enter into such amended or supplemental
indenture.
(c) Without the consent of each Holder affected, no amendment,
supplement or waiver to this Indenture shall: (i) reduce the principal amount
of Notes whose Holders must consent to an amendment, supplement or waiver, (ii)
reduce the principal of or change the fixed maturity of any Note, or alter the
provisions with respect to the redemption of the Notes in a manner adverse to
the Holders, (iii) reduce the rate of or change the time for payment of interest
on any Note, (iv) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on, the Notes (except that Holders of
at least a majority in aggregate principal amount of the then outstanding Notes
may (1) rescind an acceleration of the Notes that resulted from a non-payment
default, and (2) waive the payment default that resulted from such
acceleration), (v) make any Note payable in money other than that stated in the
Notes, (vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of, or premium, if any, or interest on, the Notes, (vii) waive a
redemption payment with respect to any Note, (viii) make any change to the
provisions of Article X that adversely affects Holders, or (ix) make any change
in Section 6.04, Section 6.07 or this sentence.
(d) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to each Holder affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
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of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
SECTION 9.03. Compliance with TIA.
-------------------
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder and
every subsequent holder of a Note or portion of a Note that evidences the same
Indebtedness as the consenting Holder's Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Note or portion of a Note if the Trustee receives
the notice of revocation before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented to the amendment or waiver.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of notes entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
holders of Notes at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be holders of Notes after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such
90-day period.
(c) After an amendment or waiver becomes effective it shall bind
every Holder, unless it is of the type described in Section 9.02(c), in which
case the amendment or waiver shall only bind each Holder that consented to it
and every subsequent holder of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supple-
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ment or waiver. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. Trustee Protected.
-----------------
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 7.01, shall be fully protected in relying upon, an Officers' Certificate
and Opinion of Counsel pursuant to Sections 12.04 and 12.05 as conclusive
evidence that such amendment or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Company in accordance with its terms. The
Company may not sign an amendment or supplemental indenture until the Board of
Directors approves it.
SECTION 9.07. Amendments Requiring Consent of Holders of Senior Debt.
------------------------------------------------------
No amendment or modification of Article X, this Section 9.07 or
Section 12.15 may be made to this Indenture without the consent of holders of at
least a majority of the outstanding principal amount of the loans under the New
Credit Agreement (and, to the extent that there are unused commitments under the
New Credit Agreement, such unused commitments) and a majority of the outstanding
principal amount of each other class of Designated Senior Debt, in each case to
the extent that such holders would be adversely affected by such amendment or
modification (Senior Bank Debt and any other Designated Senior Debt shall each
be a separate class); provided, however, that if some but not all classes of
Designated Senior Debt consent to any such amendment or modification, such
amendment or modification shall be effective with respect to each consenting
class.
ARTICLE X
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.
------------------------
The Company agrees, and each Holder by accepting a Note agrees, any
provisions of this Indenture or the Notes to the contrary notwithstanding, that
all Obligations owed under and in respect of the Notes are subordinated in right
of payment, to the extent and in the manner provided in this Article X, to the
prior payment in full in cash of all Obligations owed under and in respect of
all Senior Debt of the Company, and that the subordination of the
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Notes pursuant to this Article X is for the benefit of all holders of all Senior
Debt of the Company, whether outstanding on the Issue Date or issued thereafter.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy.
------------------------------------
(a) Upon any payment or distribution of cash, securities or other
property of the Company to creditors upon any Insolvency or Liquidation
Proceeding with respect to the Company or its property or securities, the
holders of any Senior Debt of the Company will be entitled to receive payment in
full, in cash or Cash Equivalents, of all Obligations due in respect of such
Senior Debt (including Post-Petition Interest) before the Holders will be
entitled to receive any payment or distribution with respect to the Notes
(including payment for the repurchase of Notes upon a Change of Control), and
until all Obligations with respect to such Senior Debt of the Company are paid
in full, in cash or Cash Equivalents, any payment or distribution to which the
Holders would be entitled shall be made to the holders of the Company's Senior
Debt (pro rata to such holders on the basis of the amounts of Senior Debt held
by them). Upon any Insolvency or Liquidation Proceeding with respect to the
Company, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders or the
Trustee would be entitled to except for the provisions of this Indenture shall
be paid by the Company, any Custodian or other Person making such payment or
distribution, or by the Holders or by the Trustee if received by them, directly
to the holders of the Company's Senior Debt (pro rata to such holders on the
basis of the amounts of Senior Debt held by them) or their Representatives, as
their interests may appear, for application to the payment of all outstanding
Senior Debt of the Company until all such Senior Debt has been paid in full in
cash, after giving effect to all other payments or distributions to, or
provisions made for, holders of the Company's Senior Debt.
(b) A distribution may consist of cash, securities or other property,
by setoff or otherwise. For purposes of this Article X, the words "cash,
securities or other property" shall not include any distribution of securities
of the Company or any other corporation provided for in any reorganization
proceeding under any Bankruptcy Law if (i) such securities constitute
Reorganization Securities, (ii) such distribution was authorized by an order or
decree of a court of competent jurisdiction, and (iii) such order gives effect
to (and states in such order or decree that effect has been given to) the
subordination of such securities to all Senior Debt of the Company not paid in
full in connection with such reorganization; provided that (a) all such Senior
Debt is assumed by the reorganized corporation, and (b) the rights of the
holders of any such Senior Debt are not, without the consent of such holders,
altered by such reorganization, which consent shall be deemed to have been given
if the holders of such Senior Debt (or their Representative), individually or as
a class, shall have approved such reorganization.
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(c) Notwithstanding anything to the contrary in this Indenture, any
Disposition by or involving the Company, or the liquidation or dissolution of
the Company following any Disposition, shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 10.02
if such Disposition is permitted under Article V.
SECTION 10.03. Default on Senior Debt.
----------------------
The Company shall not make any payment upon or in respect of the Notes
if (i) a default in the payment of the principal of, or premium, if any, or
interest on, any Designated Senior Debt occurs and is continuing, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, or (ii) the Trustee has received written notice (a "Payment Blockage
Notice") from the Representative of any holders of Designated Senior Debt that a
nonpayment default has occurred and is continuing with respect to such
Designated Senior Debt that permits such holders to accelerate the maturity of
such Designated Senior Debt. Payments on the Notes shall resume (and all past
due amounts on the Notes, with interest thereon as specified in this Indenture,
shall be paid) (i) in the case of a payment default in respect of any Designated
Senior Debt, on the date on which such default is cured or waived, and (ii) in
the case of a nonpayment default in respect of any Designated Senior Debt, on
the earlier of (a) the date on which such nonpayment default is cured or waived,
or (b) 179 days after the date on which the Payment Blockage Notice with respect
to such default was received by the Trustee, in each case, unless the maturity
of any Designated Senior Debt has been accelerated and the Company has defaulted
with respect to the payment of such Designated Senior Debt. During any
consecutive 365-day period, the aggregate number of days in which payments due
on the Notes may not be made as a result of nonpayment defaults on Designated
Senior Debt (a "Payment Blockage Period") shall not exceed 179 days, and there
shall be a period of at least 186 consecutive days in each consecutive 365-day
period when such payments are not prohibited. No event or circumstance that
creates a default under any Designated Senior Debt that (i) gives rise to the
commencement of a Payment Blockage Period or (ii) exists at the commencement of
or during any Payment Blockage Period shall be made the basis for the
commencement of any subsequent Payment Blockage Period unless such default has
been cured or waived for a period of not less than 90 consecutive days following
the commencement of the initial Payment Blockage Period.
SECTION 10.04. Acceleration of Notes.
---------------------
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify each holder of the Company's Senior Debt of
the acceleration.
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SECTION 10.05. When Distributions Must Be Paid Over.
------------------------------------
If the Company shall make any payment to the Trustee on account of the
principal of, or premium, if any, or interest on, the Notes, or any other
Obligation in respect to the Notes, or the Holders shall receive from any source
any payment on account of the principal of, or premium, if any, or interest on,
the Notes or any Obligation in respect of the Notes, at a time when such payment
is prohibited by this Article X, the Trustee or such Holders shall hold such
payment in trust for the benefit of, and shall pay over and deliver to, the
holders of the Company's Senior Debt (pro rata as to each of such holders on the
basis of the respective amounts of such Senior Debt held by them) or their
Representative or the trustee under the indenture or other agreement (if any)
pursuant to which such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all outstanding Senior
Debt of the Company until all such Senior Debt has been paid in full in cash,
after giving effect to all other payments or distributions to, or provisions
made for, the holders of the Company's Senior Debt.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on its part as are specifically set
forth in this Article X, and no implied covenants or obligations with respect to
any holders of the Company's 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 the Company's Senior Debt, and shall not be liable to any
holders of such Senior Debt if the Trustee shall pay over or distribute to, or
on behalf of, Holders or the Company or any other Person money or assets to
which any holders of such Senior Debt are entitled pursuant to this Article X,
except if such payment is made at a time when a Trust Officer has knowledge that
the terms of this Article X prohibit such payment.
SECTION 10.06. Notice.
------
Neither the Trustee nor the Paying Agent shall at any time be charged
with the knowledge of the existence of any facts that would prohibit the making
of any payment to or by the Trustee or Paying Agent under this Article X, unless
and until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of the Company's Senior Debt or a
Representative of any holders of such Senior Debt; and, prior to the receipt of
any such written notice, the Trustee or Paying Agent shall be entitled to assume
conclusively that no such facts exist. The Trustee shall be entitled to
conclusively rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Company's Senior Debt (or a
Representative thereof) to establish that such notice has been given.
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts it knows that would cause a payment of principal of, or
premium, if any, or
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interest on, the Notes or any other Obligation in respect of the Notes to
violate this Article X, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Debt of the Company provided in this
Article X or the rights of holders of such Senior Debt under this Article X.
SECTION 10.07. Subrogation.
-----------
After all Senior Debt of the Company has been paid in full in cash and
until the Notes are paid in full, Holders shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Notes) to the rights of
holders of such Senior Debt to receive distributions applicable to such Senior
Debt to the extent that distributions otherwise payable to the Holders have been
applied to the payment of such Senior Debt. A distribution made under this
Article X to holders of the Company's Senior Debt that otherwise would have been
made to Holders is not, as between the Company and Holders, a payment by the
Company on its Senior Debt.
SECTION 10.08. Relative Rights.
---------------
This Article X defines the relative rights of Holders and holders of
the Company's Senior Debt. Nothing in this Indenture shall: (1) impair, as
between the Company and Holders, the Company's Obligations, which are absolute
and unconditional, to pay principal of, and premium, if any, and interest on,
the Notes in accordance with their terms; (2) affect the relative rights of
Holders and the Company's creditors other than their rights in relation to
holders of the Company's Senior Debt; or (3) prevent the Trustee or any Holder
from exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders of the Company's Senior Debt to receive
distributions and payments otherwise payable to Holders.
Nothing contained in this Article X or elsewhere in this Indenture or
in any Note is intended to or shall impair, as between the Company and the
Holders, the Obligations of the Company, which are absolute and unconditional,
to pay to the Holders the principal of, and premium, if any, and interest on,
the Notes as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Company's
Senior Debt, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this Article
X of the holders of such Senior Debt.
The failure to make a payment on account of principal of, or interest
on the Notes by reason of any provision of this Article X shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01.
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SECTION 10.09. The Company and Holders May Not Impair Subordination.
----------------------------------------------------
(a) No right of any holder of the Company's Senior Debt to enforce
the subordination as provided in this Article X shall at any time or in any way
be prejudiced or impaired by any act or failure to act by the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture or the Notes or any other agreement regardless of any knowledge
thereof with which any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 10.09(a), the holders of any
Senior Debt of the Company may, at any time and from time to time, without the
consent of or notice to any Holders, without incurring any liabilities to any
Holder and without impairing or releasing the subordination and other benefits
provided in this Indenture or the Holders' obligations to the holders of such
Senior Debt, even if any Holder's right of reimbursement or subrogation or other
right or remedy is affected, impaired or extinguished thereby, do any one or
more of the following: (i) amend, renew, exchange, extend, modify, increase or
supplement in any manner such Senior Debt or any instrument evidencing or
guaranteeing or securing such Senior Debt or any agreement under which such
Senior Debt is outstanding (including, but not limited to, changing the manner,
place or terms of payment or changing or extending the time of payment of, or
renewing, exchanging, amending, increasing or altering, (1) the terms of such
Senior Debt, (2) any security for, or any Guarantee of, such Senior Debt, (3)
any liability of any obligor on such Senior Debt (including any guarantor) or
any liability issued in respect of such Senior Debt); (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing such
Senior Debt or any liability of any obligor thereon, to such holder, or any
liability issued in respect thereof; (iii) settle or compromise any such Senior
Debt or any other liability of any obligor of such Senior Debt to such holder or
any security therefor or any liability issued in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including,
without limitation, payment of any of the Company's Senior Debt) in any manner
or order; and (iv) fail to take or to record or otherwise perfect, for any
reason or for no reason, any lien or security interest securing such Senior Debt
by whomsoever granted, exercise or delay in or refrain from exercising any right
or remedy against any obligor or any guarantor or any other Person, elect any
remedy and otherwise deal freely with any obligor and any security for such
Senior Debt or any liability of any obligor to the holders of such Senior Debt
or any liability issued in respect of such Senior Debt.
SECTION 10.10. Distribution or Notice to Representative.
----------------------------------------
Whenever a distribution is to be made, or a notice given, to holders
of Senior Debt of the Company, the distribution may be made and the notice given
to their Representative, if any. If any payment or distribution of the
Company's assets is required to be made to
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holders of any of the Company's Senior Debt pursuant to this Article X, the
Trustee and the Holders shall be entitled to conclusively rely upon any order or
decree of any court of competent jurisdiction, or upon any certificate of a
Representative of such Senior Debt or a Custodian, in ascertaining the holders
of such Senior Debt entitled to participate in any such payment or distribution,
the amount to be paid or distributed to holders of such Senior Debt and all
other facts pertinent to such payment or distribution or to this Article X.
SECTION 10.11. Rights of Trustee and Paying Agent.
----------------------------------
The Trustee or Paying Agent may continue to make payments on the Notes
unless prior to any payment date it has received written notice of facts that
would cause a payment of principal of, or premium, if any, or interest on, the
Notes to violate this Article X. Only the Company, a Representative of Senior
Debt, or a holder of Senior Debt that has no Representative may give such
notice.
To the extent permitted by the TIA, the Trustee in its individual or
any other capacity may hold Indebtedness of the Company (including Senior Debt)
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.12. Authorization to Effect Subordination.
-------------------------------------
Each Holder of a Note by its acceptance thereof authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article X, and appoints the
Trustee as such Holder's attorney-in-fact for any and all such purposes
(including, without limitation, the timely filing of a claim for the unpaid
balance of the Note that such Holder holds in the form required in any
bankruptcy, reorganization, insolvency or receivership proceeding and causing
such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Debt of the Company are hereby authorized, and
shall have the right (without any duty), to file an appropriate claim for and on
behalf of the Holders.
SECTION 10.13. Payment.
-------
A payment on account of or with respect to any Note shall include,
without limitation, any direct or indirect payment of principal, premium or
interest with respect to or
-74-
in connection with any optional redemption or purchase provisions, any direct or
indirect payment payable by reason of any other Indebtedness or Obligation being
subordinated to the Notes, and any direct or indirect payment or recovery on any
claim as a Holder relating to or arising out of this Indenture or any Note, or
the issuance of any Note, or the transactions contemplated by this Indenture or
referred to herein.
ARTICLE XI
INITIAL GUARANTEES
SECTION 11.01. Initial Guarantees.
------------------
(a) Each Initial Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee that: (i) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under this Indenture
and the Notes will be promptly paid in full, all in accordance with the terms of
this Indenture and the Notes; and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the Notes
will be promptly paid in full when due in accordance with the terms of such
extension or renewal, whether at stated maturity, by acceleration or otherwise.
In the event that the Company fails to pay any amount guaranteed by the Initial
Guarantors for any reason whatsoever, the initial Guarantors will be jointly and
severally obligated to pay such amount immediately. The Initial Guarantors
hereby further agree that their Obligations under this Indenture and the Notes
shall be unconditional, regardless of the validity, regularity or enforceability
of this Indenture or the Notes, the absence of any action to enforce this
Indenture or the Notes, any waiver or consent by any Holder with respect to any
provisions of this Indenture or the Notes, any modification or amendment of, or
supplement to, this Indenture or the Notes, the recovery of any judgment against
the Company or any action to enforce any such judgment, or any other
circumstance that might otherwise constitute a legal or equitable discharge or
defense of an Initial Guarantor. Each Initial Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Guarantee of the Company's Obligations under this
Indenture and the Notes will not be discharged except by complete performance by
the Company or another Guarantor of such Obligations. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, any
Initial Guarantor or a Custodian of the Company or an Initial Guarantor any
amount paid by the Company or any Initial Guarantor to the Trustee or such
Holder, the Guarantee of the Company's Obligations under this Indenture and the
Notes by each Initial Guarantor shall, to the
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extent previously discharged as a result of any such payment, be immediately
reinstated and be in full force and effect. Each Initial Guarantor hereby
acknowledges and agrees that, as between the Initial Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Company's Obligations under this Indenture and the Notes may be accelerated
as provided in Article VI for purposes of the Initial Guarantees notwithstanding
any stay, injunction or other prohibition preventing such acceleration, and (y)
in the event of any declaration of acceleration of the Company's Obligations
under this Indenture and the Notes as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the
Initial Guarantors for the purpose of the Initial Guarantees.
(b) Each Initial Guarantor hereby waives all rights of subrogation,
contribution, reimbursement and indemnity, and all other rights, that such
Initial Guarantor would have against the Company at any time as a result of any
payment in respect of its Initial Guarantee (whether contractual, under section
509 of the Bankruptcy Code, or otherwise).
(c) Each Initial Guarantor that makes or is required to make any
payment in respect of its Initial Guarantee shall be entitled to seek
contribution from the other Initial Guarantors to the extent permitted by
applicable law.
SECTION 11.02. Trustee to Include Paying Agents.
--------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company, the term "Trustee" as used in this Article XI
shall (unless the context shall otherwise require) be construed as extending to
and including such Paying Agent within its meaning as fully and for all intents
and purposes as if such Paying Agent were named in this Article XI in place of
the Trustee.
SECTION 11.03. Subordination of Initial Guarantees.
-----------------------------------
Each Initial Guarantor's Obligations under its Initial Guarantee shall
be (i) junior and subordinated in right of payment to any Senior Debt of such
Initial Guarantor and any Guarantee by such Initial Guarantor of any Senior Debt
of the Company in the same manner and to the same extent as the Notes are
subordinated to Senior Debt of the Company pursuant to Article X, (ii) pari
passu in right of payment with any Senior Subordinated Debt of such Initial
Guarantor and any Guarantee by such Initial Guarantor of Senior Subordinated
Debt of the Company, and (iii) senior in right of payment to any Subordinated
Debt of such Initial Guarantor and any Guarantee by such Initial Guarantor of
any Subordinated Debt of the Company.
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SECTION 11.04. Senior Subordinated Debt of Initial Guarantors.
----------------------------------------------
Each Initial Guarantor hereby agrees that it will not issue, Guarantee
or otherwise become liable for any Indebtedness that is subordinated or junior
in right of payment to any Senior Debt of such Initial Guarantor and senior in
any respect in right of payment to its Initial Guarantee.
SECTION 11.05. Limits on Initial Guarantees.
----------------------------
(a) Notwithstanding anything to the contrary in this Article XI, the
aggregate amount of the Obligations guaranteed under this Indenture by any
Initial Guarantor shall be reduced to the extent necessary to prevent the
Initial Guarantee of such Initial Guarantor from violating or becoming voidable
under any law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors.
(b) With respect to the relative rights of the Holders and the
holders of Senior Debt of the Company and any Guarantee of Senior Debt of the
Company, each Initial Guarantor agrees, and each Holder by accepting a Note
agrees, that any Designated Senior Debt and any Guarantee of any Designated
Senior Debt shall be deemed to have been incurred prior to the incurrence by the
Initial Guarantor of its Obligations under its Initial Guarantee.
SECTION 11.06. Execution of Initial Guarantee.
------------------------------
To evidence their Initial Guarantee set forth in this Article XI, each
Initial Guarantor hereby agrees to execute the Initial Guarantee in
substantially the form included in Exhibit A-1, which shall be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each Initial
Guarantor hereby agrees that its Initial Guarantee set forth in this Article XI
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Initial Guarantee. Each such Initial Guarantee
shall be signed on behalf of each Initial Guarantor by an Officer (who shall
have been duly authorized by all requisite corporate actions), and the delivery
of such Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Initial Guarantee on behalf of such Initial
Guarantor. Such signatures upon the Initial Guarantee may be by manual or
facsimile signature of such Officer and may be imprinted or otherwise reproduced
on the Initial Guarantee, and in case any such Officer who shall have signed the
Initial Guarantee shall cease to be such Officer before the Note on which such
Initial Guarantee is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Initial Guarantee had not ceased to be such Officer of the Initial Guarantor.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
----------------------------
If any provisions of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control.
SECTION 12.02. Notices.
-------
Any notice or communication by the Company, any Subsidiary Guarantor
or the Trustee to the other is duly given if in writing and delivered in person,
mailed by registered or certified mail, postage prepaid, return receipt
requested or delivered by telecopier or overnight air courier guaranteeing next
day delivery to the other's address:
If to the Company or to any Subsidiary Guarantor:
Young Broadcasting Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
If to the Trustee:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, Xxx. 0000
Xxx Xxxx, XX 00000
Attention: Corporate Trust-Bond Administration
Telecopier: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; the date receipt is acknowledged, if mailed by registered
or certified mail; when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail to his or her address shown on the register maintained by the Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it. If the Company
mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 12.03. Communication by Holders with Other Holders.
-------------------------------------------
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of Section 312(c) of the TIA.
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee: (a)
an Officers' Certificate (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and (b) an Opinion of Counsel (which
shall include the statements set forth in Section 12.05) stating that, in the
opinion of such counsel, all such conditions precedent provided for in this
Indenture relating to the proposed action have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 314(a)(4) of the TIA) shall include: (1) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an in-
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formed opinion as to whether or not such covenant or condition has been complied
with; and (4) a statement as to whether, in such Person's opinion, such
condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. Legal Holidays.
--------------
If a payment date is a Legal Holiday, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 12.08. No Recourse Against Others.
--------------------------
No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligation of the Company under this
Indenture or the Notes or for any claim based on, in respect of, or by reason
of, any such obligation or the creation of any such obligation. Each Holder by
accepting a Note waives and releases such Persons from all such liability and
such waiver and release is part of the consideration for the issuance of the
Notes.
SECTION 12.09. Counterparts.
------------
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 12.10. Initial Appointments, Compliance Certificates.
---------------------------------------------
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent. The first compliance certificate to be delivered by
the Company to the Trustee pursuant to Section 4.03 shall be for the fiscal year
ending on December 31, 2000.
SECTION 12.11. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture and the
Notes, without regard to the conflict of laws provisions thereof.
-80-
SECTION 12.12. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries, and no other
indenture, loan or debt agreement may be used to interpret this Indenture.
SECTION 12.13. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind any successor of the Company. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.14. Severability.
------------
If any provision in this Indenture or in the Notes 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 12.15. Third Party Beneficiaries.
-------------------------
Holders of Senior Debt of the Company are third party beneficiaries
of, and any of them (or their Representative) shall have the right to enforce
the provisions of this Indenture that benefit such holders.
SECTION 12.16. Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture, and shall in
no way modify or restrict any of the terms or provisions of this Indenture.
SIGNATURES
----------
THE COMPANY:
-----------
YOUNG BROADCASTING INC.
Attest: By: ___________________________
Name:
___________________________ Title:
THE INITIAL GUARANTORS:
----------------------
YOUNG BROADCASTING OF ALBANY, INC.
Attest: By: ___________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF LANSING, INC.
Attest: By: ____________________________
Name:
___________________________ Title:
WINNEBAGO TELEVISION CORPORATION
Attest: By: _____________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF NASHVILLE,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YBT, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
WKRN, G.P.
By: Young Broadcasting of
Nashville, Inc.,
Managing Partner
Attest: By: __________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF LOUISIANA,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
LAT, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
KLFY, L.P.
By: Young Broadcasting of
Louisiana, Inc.,
General Partner
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF RICHMOND,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF GREEN BAY,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF KNOXVILLE,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
WATE, G.P.
By: Young Broadcasting of
Knoxville, Inc.,
Managing Partner
Attest: By: __________________________
Name:
___________________________ Title:
YBK, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF XXXXXXXXX,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF SIOUX FALLS,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF RAPID CITY,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF LOS ANGELES,
INC.
Attest: By: ______________________________
Name:
___________________________ Title:
YOUNG BROADCASTING OF SAN
FRANCISCO, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
FIDELITY TELEVISION, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
HONEY BUCKET FILMS, INC.
Attest: By: ______________________________
Name:
___________________________ Title:
XXXX XXXXX INC.
Attest: By: ______________________________
Name:
___________________________ Title:
FIRST UNION NATIONAL BANK, as
Trustee
By: ______________________________
Name:
Title:
EXHIBIT A-1
-----------
[FORM OF SERIES A NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO YOUNG BROADCASTING INC. (THE "COMPANY"), OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE OR TRANSFER AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE OR TRANSFER AGENT AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U. S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-1
(Face of Note)
YOUNG BROADCASTING INC.
10% Senior Subordinated Note due 2011
No. _______________ $_____________
CUSIP No.___________
Young Broadcasting Inc., a Delaware corporation (hereinafter called
the "Company," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________________ or registered assigns, the principal sum of
_______________________ Dollars on March 1, 2011.
Interest Payment Dates: March 1 and September 1, commencing September
1, 2001
Record Dates: February 15 and August 15
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
seal to be affixed hereto or imprinted hereon.
YOUNG BROADCASTING INC.
By:___________________________________
By:___________________________________
[SEAL]
A-1-2
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
First Union National Bank, as Trustee
By:___________________________
Authorized Signature
Date of Authentication:
A-1-3
(Back of Note)
10% SENIOR SUBORDINATED NOTE DUE 2011
1. Interest. Young Broadcasting Inc. (the "Company") promises to
pay interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on this Note will accrue at 10% per annum from the
date this Note is issued until maturity and will be payable semiannually in cash
on March 1 and September 1 of each year, or if any such day is not a Business
Day on the next succeeding Business Day (each an "Interest Payment Date").
Interest on this Note will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from the date of original
issuance; provided that the first Interest Payment Date shall be September 1,
2001. The Company shall pay interest on overdue principal and premium, if any,
from time to time on demand at the rate of 2% per annum in excess of the
interest rate then in effect and shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. The Company will pay interest on this Note
(except defaulted interest) to the Person who is the registered Holder of this
Note at the close of business on the record date for the next Interest Payment
Date even if such Note is cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments on such Notes. The Company will pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, and interest by check payable in
such money, and any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. First Union National Bank (the
"Trustee") will initially act as the Paying Agent and Registrar. The Company
may appoint additional paying agents or co-registrars, and change the Paying
Agent, any additional paying agent, the Registrar or any co-registrar without
prior notice to any Holder. The Company or any of its Affiliates may act in any
such capacity.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of March 1, 2001 (the "Indenture"), by and among the Company, as issuer
of the Notes, Young Broadcasting of Albany, Inc., Young Broadcasting of Lansing,
Inc., Winnebago Television Corporation, Young Broadcasting of Nashville, Inc.,
YBT, Inc., WKRN, G.P., Young Broadcasting of Louisiana, Inc., LAT, Inc., KLFY,
L.P., Young Broadcasting of Richmond, Inc., Young Broadcasting of Green Bay,
Inc., Young Broadcasting of Knoxville, Inc., WATE, G.P., YBK, Inc., Young
Broadcasting of Xxxxxxxxx, Inc., Young Broadcasting of Sioux Falls, Inc., Young
Broadcasting of Rapid City, Inc., Young Broadcasting of Los Angeles, Inc., Young
Broadcasting of San Francisco, Inc., Fidelity Television, Inc., Honey Bucket
Films,
A-1-4
Inc. and Xxxx Xxxxx Inc. as guarantors of the Company's obligations under the
Indenture and the Notes (each an "Initial Guarantor") and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of the original issuance of the Notes
(the "Trust Indenture Act"). The Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders are referred to
the Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned them in
the Indenture). The Notes are unsecured general obligations of the Company
limited to $500,000,000 in aggregate principal amount.
5. Redemption Provisions.
The Notes may not be redeemed at the option of the Company prior to
March 1, 2006. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of the principal amount of the Notes) set forth below, plus any
accrued and unpaid interest to the date of redemption, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
Year Percentage
2006............................ 105.000%
2007............................ 103.333%
2008............................ 101.667%
2009 and thereafter............. 100.000%
Notwithstanding the foregoing, at any time prior to March 1, 2004, the
Company, at its option, may redeem the Notes, in part, with the net proceeds of
one or more Public Equity Offerings, at a redemption price equal to 110% of the
principal amount thereof, together with accrued and unpaid interest to the date
of redemption; provided, however, that after any such redemption the aggregate
principal amount of the Notes outstanding must equal at least 66 2/3% of the
aggregate principal amount of the Notes originally issued.
6. Mandatory Offers.
(a) Within 30 days after any Change of Control or any Asset Sale
Trigger Date, the Company shall mail a notice to each Holder stating a number of
items as set forth in Sections 4.13 (with respect to Change of Control Offers)
or 4.14 (with respect to Asset Sale Offers) of the Indenture.
(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes in an Offer by completing the form below entitled "OPTION
OF HOLDER TO ELECT PURCHASE."
A-1-5
(c) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Notes, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Note equal in principal amount
to the unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply with the
applicable tender offer rules, including the requirements of Rule 14e-1 under
the Securities Exchange Act of 1934, as amended, and all other applicable
securities laws and regulations in connection with any Offer.
7. Notice of Redemption or Purchase. At least 30 days but not more
than 60 days before any redemption date, the Company shall mail by first class
mail a notice of redemption to each Holder of Notes or portions thereof that are
to be redeemed.
8. Notes to Be Redeemed or Purchased. The Notes may be redeemed or
purchased in part, but only in whole multiples of $1,000 unless all Notes held
by a Holder are to be redeemed or purchased. On or after any date on which
Notes are redeemed or purchased, interest ceases to accrue on the Notes or
portions thereof called for redemption or accepted for purchase on such date.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption or tendered pursuant to an Offer.
10. Persons Deemed Owners. The registered holder of a Note may be
treated as its owner for all purposes.
11. Amendments and Waivers.
(a) Subject to certain exceptions, the Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in principal amount of the then outstanding Notes.
A-1-6
(b) Notwithstanding Section 11 (a) above, the Company and the Trustee
may amend or supplement the Indenture or the Notes without the consent of any
Holder to: cure any ambiguity, defect or inconsistency; provide for
uncertificated Notes in addition to or in place of certificated Notes; provide
for the assumption of the Company's obligations to the Holders in the event of
any Disposition involving the Company that is permitted under Article V and in
which the Company is not the Surviving Person; make any change that would
provide any additional rights or benefits to Holders or not adversely affect the
interests of any Holder; or comply with the requirements of the Commission in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
(c) Certain provisions of the Indenture cannot be amended,
supplemented or waived without the consent of each Holder of Notes affected.
Additionally, certain provisions of the Indenture cannot be amended or modified
without the consent of at least a majority of the outstanding principal amount
of each class of Senior Debt of the Company outstanding.
12. Defaults and Remedies. Events of Default include: default for
30 days in the payment when due of interest on the Notes; default in the payment
when due of principal on the Notes; failure to perform or comply with certain
covenants, agreements or warranties in the Indenture which failure continues for
30 days after receipt of notice from the Trustee or Holders of at least 25% of
the outstanding Notes; failure to perform or comply with other covenants,
agreements or warranties in the Indenture which failure continues for 60 days
after receipt of notice from the Trustee or Holders of at least 25% of the
outstanding Notes; defaults under and acceleration prior to maturity, or failure
to pay at maturity, of certain other Indebtedness; except as permitted under the
Indenture, any Subsidiary Guarantee shall cease for any reason to be in full
force and effect; certain judgments that remain undischarged; dispositions by
holders of certain Indebtedness of assets of the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary; and certain events of bankruptcy
or insolvency involving the Company, any Subsidiary Guarantor or any other
Restricted Subsidiary. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may
declare all outstanding Notes to be due and payable immediately in an amount
equal to the principal amount of and premium on, if any, such Notes, plus any
accrued and unpaid interest; provided, however, that in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, the principal
amount of and premium on, if any, and any accrued and unpaid interest on, the
Notes becomes due and payable immediately without further action or notice.
Subject to certain exceptions, Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it by the Indenture; provided that the Trustee
may refuse to follow any direction that conflicts with law or the Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other
Holders, or would involve the Trustee in personal liability. The Trustee may
withhold from Holders notice of any continuing default (except a payment
Default) if it determines that such withholding is in their interests.
A-1-7
13. Initial Guarantees. Payment of principal, premium, if any, and
interest (including interest on overdue principal and overdue interest, to the
extent lawful) on the Notes and all other Obligations of the Company to the
Holders or the Trustee under the Indenture and the Notes is, jointly and
severally, unconditionally guaranteed by each of the Initial Guarantors pursuant
to and subject to the terms of Article XI of the Indenture.
14. Subordination.
(a) All Obligations owed under and in respect of the Notes are
subordinated in right of payment, to the extent and in the manner provided in
Article X of the Indenture, to the prior payment in full in cash of all
Obligations owed under and respect of all Senior Debt of the Company, and the
subordination of the Notes is for the benefit of all holders of all Senior Debt
of the Company, whether outstanding on the Issue Date or issued thereafter. The
Company agrees, and each Holder by accepting a Note agrees, to the
subordination.
(b) Each Initial Guarantor's Obligations under its Initial Guarantee
shall be (i) junior and subordinated in right of payment to any Senior Debt of
the Company and to any Senior Debt of such Initial Guarantor; (ii) pari passu in
right of payment with any Senior Subordinated Debt of the Company; and (iii)
senior in right of payment to any Subordinated Debt of such Initial Guarantor
and any Guarantee by such Initial Guarantor of any Subordinated Debt of the
Company.
15. Trustee Dealings with Company. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligation of the Company under the Indenture or the Notes or for any claim
based on, in respect of, or by reason of, any such obligation or the creation of
any such obligation. Each Holder by accepting a Note waives and releases such
Persons from all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
17. Successor Substituted. Upon the merger, consolidation or other
business combination involving the Company or upon the sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the Company's properties and assets, the Surviving Person (if other than the
Company) resulting from such Disposition shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the same effect as if such Surviving Person had been named as the Company
in the Indenture.
18. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
A-1-8
19. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
20. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the securities.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture which has in it the text of this Note in
larger type. Request may be made to: Young Broadcasting Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-1-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
________________________________________________________________________________
Please insert social security or other identifying number of assignee
________________________________________________________________________________
Please print or typewrite name and address including
zip code of assignee
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________ to transfer said Note on the
books of the Company. The Agent may substitute another to act for him.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) June 23, 1999, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that:
[Check One]
---------
[_] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A
thereunder.
or
--
[_] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the
-2-
conditions to any such transfer of registration set forth herein and in Section
2.16 of the Indenture shall have been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: _______________________________________
NOTICE: To be executed by an executive
officer
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Guarantor, jointly and severally, unconditionally guarantees, to
the extent set forth in the Indenture and subject to the provisions of the
Indenture that: (i) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under the Indenture and
the Notes will be promptly paid in full, all in accordance with the terms of the
Indenture and the Notes; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that the Notes will be
promptly paid in full when due in accordance with the terms of such extension or
renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holders of Notes and the
Trustee pursuant to this guarantee and the Indenture are set forth in Article XI
of the Indenture, to which reference is hereby made.
Guarantors:
YOUNG BROADCASTING OF ALBANY, INC.
By: __________________________________
Name:
Title:
YOUNG BROADCASTING OF LANSING, INC.
By: __________________________________
Name:
Title:
-0-
XXXXXXXXX TELEVISION CORPORATION
By: _______________________________________
Name:
Title:
YOUNG BROADCASTING OF NASHVILLE, INC.
By: _______________________________________
Name:
Title:
YBT, INC.
By: _______________________________________
Name:
Title:
WKRN, G.P.
By: Young Broadcasting of Nashville, Inc.,
Managing Partner
By: _______________________________________
Name:
Title:
-3-
YOUNG BROADCASTING OF LOUISIANA,
INC.
By: _______________________________________
Name:
Title:
LAT, INC.
By: _______________________________________
Name:
Title:
KLFY, L.P.
By: Young Broadcasting of Louisiana, Inc.,
General Partner
By: __________________________________
Name:
Title:
YOUNG BROADCASTING OF RICHMOND,
INC.
By: ______________________________________
Name:
Title:
-4-
YOUNG BROADCASTING OF GREEN BAY,
INC.
By: ______________________________________
Name:
Title:
YOUNG BROADCASTING OF KNOXVILLE,
INC.
By: ______________________________________
Name:
Title:
WATE, G.P.
By: Young Broadcasting of Knoxville, Inc.,
Managing Partner
By: __________________________________
Name:
Title:
YBK, INC.
By: ______________________________________
Name:
Title:
-5-
YOUNG BROADCASTING OF XXXXXXXXX,
INC.
By: _______________________________________
Name:
Title:
YOUNG BROADCASTING OF SIOUX FALLS, INC.
By: _______________________________________
Name:
Title:
YOUNG BROADCASTING OF RAPID CITY,
INC.
By: _______________________________________
Name:
Title:
YOUNG BROADCASTING OF LOS ANGELES, INC.
By: _______________________________________
Name:
Title:
-6-
YOUNG BROADCASTING OF SAN FRANCISCO, INC.
By: _______________________________________
Name:
Title:
FIDELITY TELEVISION, INC.
By: _______________________________________
Name:
Title:
HONEY BUCKET FILMS, INC.
By: _______________________________________
Name:
Title:
XXXX XXXXX INC.
By: _______________________________________
Name:
Title:
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.13 of the Indenture, check the box: [_]
If you elect to have this Note purchased by the Company pursuant to
Section 4.14 of the Indenture, check the box: [_]
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, state the amount (multiples
of $1,000 only):
$________________________
Date: Your Signature: _________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: _____________________________
X-0-0
XXXXXXX X-0
-----------
[FORM OF SERIES B NOTE]
(Face of Note)
YOUNG BROADCASTING INC.
10% Senior Subordinated Note due 2011
No. __________ $__________
CUSIP No.__________
Young Broadcasting Inc., a Delaware corporation (hereinafter called
the "Company," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of __________ Dollars
on March 1, 2011.
Interest Payment Dates: March 1 and September 1, commencing September
1, 2001
Record Dates: February 15 and August 15
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
seal to be affixed hereto or imprinted hereon.
-2-
YOUNG BROADCASTING INC.
By:____________________________
By:____________________________
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the
within mentioned Indenture.
First Union National Bank, as Trustee
By:____________________________________
Authorized Signature
Date of Authentication:
(Back of Note)
10% SENIOR SUBORDINATED NOTE DUE 2011
1. Interest. Young Broadcasting Inc. (the "Company") promises to
pay interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on this Note will accrue at 10% per annum from the
date this Note is issued until maturity and will be payable semiannually in cash
on March 15 and September 15 of each year, or if any such day is not a Business
Day on the next succeeding Business Day (each an "Interest Payment Date").
Interest on this Note will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from the date of original
issuance; provided that the first Interest Payment Date shall be September 15,
2001. The Company shall pay interest on overdue principal and premium, if any,
from time to time on demand at the rate of 2% per annum in excess of the
interest rate then in effect and shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. The Company will pay interest on this Note
(except defaulted interest) to the Person who is the registered Holder of this
Note at the close of business on the record date for the next Interest Payment
Date even if such Note is cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments on such Notes. The Company will pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, and interest by check payable in
such money, and any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. First Union National Bank (the
"Trustee") will initially act as the Paying Agent and Registrar. The Company
may appoint additional paying agents or co-registrars, and change the Paying
Agent, any additional paying agent, the Registrar or any co-registrar without
prior notice to any Holder. The Company or any of its Affiliates may act in any
such capacity.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of March 1, 2001 (the "Indenture"), by and among the Company, as issuer
of the Notes, Young Broadcasting of Albany, Inc., Young Broadcasting of Lansing,
Inc., Winnebago Television Corporation, Young Broadcasting of Nashville, Inc.,
YBT, Inc., WKRN, G.P., Young Broadcasting of Louisiana, Inc., LAT, Inc., KLFY,
L.P., Young Broadcasting of Richmond, Inc., Young Broadcasting of Green Bay,
Inc., Young Broadcasting of Knoxville, Inc., WATE, G.P., YBK, Inc., Young
Broadcasting of Xxxxxxxxx, Inc., Young Broadcasting of Sioux Falls,
Inc., Young Broadcasting of Rapid City, Inc., Young Broadcasting of Los Angeles,
Inc., Young Broadcasting of San Francisco, Fidelity Television, Inc., Honey
Bucket Films, Inc., and Xxxx Xxxxx Inc. as guarantors of the Company's
obligations under the Indenture and the Notes (each an "Initial Guarantor") and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on the date of the original
issuance of the Notes (the "Trust Indenture Act"). The Notes are subject to, and
qualified by, all such terms, certain of which are summarized herein, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms (all capitalized terms not defined herein shall have the
meanings assigned them in the Indenture). The Notes are unsecured general
obligations of the Company limited to $200,000,000 in aggregate principal
amount.
5. Redemption Provisions.
The Notes may not be redeemed at the option of the Company prior to
March 1, 2006. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of the principal amount of the Notes) set forth below, plus any
accrued and unpaid interest to the date of redemption, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
Year Percentage
2006....................................... 105.000%
2007....................................... 103.333%
2008....................................... 101.667%
2009 and thereafter........................ 100.000%
Notwithstanding the foregoing, at any time prior to March 1, 2004, the
Company, at its option, may redeem the Notes, in part, with the net proceeds of
one or more Public Equity Offerings, at a redemption price equal to 110% of the
principal amount thereof, together with accrued and unpaid interest to the date
of redemption; provided, however, that after any such redemption the aggregate
principal amount of the Notes outstanding must equal at least 66.2/3% of the
aggregate principal amount of the Notes originally issued.
6. Mandatory Offers.
(a) Within 30 days after any Change of Control or any Asset Sale
Trigger Date, the Company shall mail a notice to each Holder stating a number of
items as set forth in Sections 4.13 (with respect to Change of Control Offers)
or 4.14 (with respect to Asset Sale Offers) of the Indenture.
(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes in an Offer by completing the form below entitled "OPTION
OF HOLDER TO ELECT PURCHASE."
(c) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Notes, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Note equal in principal amount
to the unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply with the
applicable tender offer rules, including the requirements of Rule 14e-1 under
the Securities Exchange Act of 1934, as amended, and all other applicable
securities laws and regulations in connection with any Offer.
7. Notice of Redemption or Purchase. At least 30 days but not more
than 60 days before any redemption date, the Company shall mail by first class
mail a notice of redemption to each Holder of Notes or portions thereof that are
to be redeemed.
8. Notes to Be Redeemed or Purchased. The Notes may be redeemed or
purchased in part, but only in whole multiples of $1,000 unless all Notes held
by a Holder are to be redeemed or purchased. On or after any date on which
Notes are redeemed or purchased, interest ceases to accrue on the Notes or
portions thereof called for redemption or accepted for purchase on such date.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption or tendered pursuant to an Offer.
10. Persons Deemed Owners. The registered holder of a Note may be
treated as its owner for all purposes.
11. Amendments and Waivers.
(a) Subject to certain exceptions, the Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in principal amount of the then outstanding Notes.
(b) Notwithstanding Section 11(a) above, the Company and the Trustee
may amend or supplement the Indenture or the Notes without the consent of any
Holder to: cure any ambiguity, defect or inconsistency; provide for
uncertificated Notes in addition to or in place of certificated Notes; provide
for the assumption of the Company's obligations to the Holders in the event of
any Disposition involving the Company that is permitted under Article V and in
which the Company is not the Surviving Person; make any change that would
provide any additional rights or benefits to Holders or not adversely affect the
interests of any Holder; or comply with the requirements of the Commission in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
(c) Certain provisions of the Indenture cannot be amended,
supplemented or waived without the consent of each Holder of Notes affected.
Additionally, certain provisions of the Indenture cannot be amended or modified
without the consent of at least a majority of the outstanding principal amount
of each class of Senior Debt of the Company outstanding.
12. Defaults and Remedies. Events of Default include: default for
30 days in the payment when due of interest on the Notes; default in the payment
when due of principal on the Notes; failure to perform or comply with certain
covenants, agreements or warranties in the Indenture which failure continues for
30 days after receipt of notice from the Trustee or Holders of at least 25% of
the outstanding Notes; failure to perform or comply with other covenants,
agreements or warranties in the Indenture which failure continues for 60 days
after receipt of notice from the Trustee or Holders of at least 25% of the
outstanding Notes; defaults under and acceleration prior to maturity, or failure
to pay at maturity, of certain other Indebtedness; except as permitted under the
Indenture, any Subsidiary Guarantee shall cease for any reason to be in full
force and effect; certain judgments that remain undischarged; dispositions by
holders of certain Indebtedness of assets of the Company, any Subsidiary
Guarantor or any other Restricted Subsidiary; and certain events of bankruptcy
or insolvency involving the Company, any Subsidiary Guarantor or any other
Restricted Subsidiary. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may
declare all outstanding Notes to be due and payable immediately in an amount
equal to the principal amount of and premium on, if any, such Notes, plus
any accrued and unpaid interest; provided, however, that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, the
principal amount of and premium on, if any, and any accrued and unpaid interest
on, the Notes becomes due and payable immediately without further action or
notice. Subject to certain exceptions, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it by the Indenture; provided that
the Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability. The
Trustee may withhold from Holders notice of any continuing default (except a
payment Default) if it determines that such withholding is in their interests.
13. Initial Guarantees. Payment of principal, premium, if any, and
interest (including interest on overdue principal and overdue interest, to the
extent lawful) on the Notes and all other Obligations of the Company to the
Holders or the Trustee under the Indenture and the Notes is, jointly and
severally, unconditionally guaranteed by each of the Initial Guarantors pursuant
to and subject to the terms of Article XI of the Indenture.
14. Subordination.
(a) All Obligations owed under and in respect of the Notes are
subordinated in right of payment, to the extent and in the manner provided in
Article X of the Indenture, to the prior payment in full in cash of all
Obligations owed under and respect of all Senior Debt of the Company, and the
subordination of the Notes is for the benefit of all holders of all Senior Debt
of the Company, whether outstanding on the Issue Date or issued thereafter. The
Company agrees, and each Holder by accepting a Note agrees, to the
subordination.
(b) Each Initial Guarantor's Obligations under its Initial Guarantee
shall be (i) junior and subordinated in right of payment to any Senior Debt of
the Company and to any Senior Debt of such Initial Guarantor; (ii) pari passu in
right of payment with any Senior Subordinated Debt of the Company; and (iii)
senior in right of payment to any Subordinated Debt of such Initial Guarantor
and any Guarantee by such Initial Guarantor of any Subordinated Debt of the
Company.
15. Trustee Dealings with Company. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligation of the Company under the Indenture or the Notes or for any claim
based on, in respect of, or by reason of,
any such obligation or the creation of any such obligation. Each Holder by
accepting a Note waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the issuance of the
Notes.
17. Successor Substituted. Upon the merger, consolidation or other
business combination involving the Company or upon the sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the Company's properties and assets, the Surviving Person (if other than the
Company) resulting from such Disposition shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the same effect as if such Surviving Person had been named as the Company
in the Indenture.
18. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
19. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
20. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the securities.
The Company will furnish to any Holder upon written request and without charge a
copy of the Indenture which has in it the text of this Note in larger type.
Request may be made to: Young Broadcasting Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
________________________________________________________________________________
Please insert social security or other identifying number of assignee
________________________________________________________________________________
Please print or typewrite name and address including
zip code of assignee
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________ to transfer said Note on the books of the
Company. The Agent may substitute another to act for him.
Date:__________________________ Your Signature:___________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee:_________________________
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Guarantor, jointly and severally, unconditionally guarantees, to
the extent set forth in the Indenture and subject to the provisions of the
Indenture that: (i) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under the Indenture and
the Notes will be promptly paid in full, all in accordance with the terms of the
Indenture and the Notes; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that the Notes will be
promptly paid in full when due in accordance with the terms of such extension or
renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holders of Notes and the
Trustee pursuant to this guarantee and the Indenture are set forth in Article XI
of the Indenture, to which reference is hereby made.
Guarantors:
YOUNG BROADCASTING OF ALBANY,
INC.
By:__________________________________
Name:
Title:
YOUNG BROADCASTING OF LANSING,
INC.
By:___________________________________
Name:
Title:
WINNEBAGO TELEVISION CORPORATION
By:___________________________________
Name:
Title:
-2-
YOUNG BROADCASTING OF NASHVILLE,
INC.
By:_______________________________________
Name:
Title:
YBT, INC.
By:_______________________________________
Name:
Title:
WKRN, L.P.
By: Young Broadcasting of Nashville, Inc.,
General Partner
By:________________________________________
Name:
Title:
YOUNG BROADCASTING OF LOUISIANA,
INC.
By:________________________________________
Name:
Title:
LAT, INC.
By:________________________________________
Name:
Title:
-0-
XXXX, X.X.
By: Young Broadcasting of Louisiana, Inc.,
General Partner
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF RICHMOND, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF GREEN BAY, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF KNOXVILLE, INC.
By:__________________________________________
Name:
Title:
WATE, L.P.
By: Young Broadcasting of Knoxville, Inc.,
General Partner
By:__________________________________________
Name:
Title:
-4-
YBK, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF XXXXXXXXX, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF SIOUX FALLS, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF RAPID CITY, INC.
By:__________________________________________
Name:
Title:
YOUNG BROADCASTING OF LOS ANGELES, INC.
By:__________________________________________
Name:
Title:
-5-
YOUNG BROADCASTING OF SAN FRANCISCO, INC.
By:__________________________________________
Name:
Title:
FIDELITY TELEVISION, INC.
By:__________________________________________
Name:
Title:
HONEY BUCKET FILMS, INC.
By:__________________________________________
Name:
Title:
XXXX XXXXX INC.
By:__________________________________________
Name:
Title:
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.13 of the Indenture, check the box: [_]
If you elect to have this Note purchased by the Company pursuant to
Section 4.14 of the Indenture, check the box: [_]
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, state the amount (multiples
of $1,000 only):
$____________________
Date: _______________ Your Signature:__________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee: __________________________________
Your Signature: _____________________________
(Sign exactly as your name
appears on the other side of
this Note)
EXHIBIT B
---------
FORM OF LEGEND FOR BOOK-ENTRY NOTES
Any Global Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a
Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-OIB Accredited Investors
-----------------------------------------
______________, _____
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Corporate Trust - Bond Administration
Re: Young Broadcasting Inc. 10%
Senior Subordinated Notes due 2011
----------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of 10% Senior Subordinated
Notes due 2011 (the "Securities") of Young Broadcasting, Inc. (the "Company"),
we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture dated
as of March 1, 2001 pursuant to which the Securities were issued and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities, we will do so only
(A) to the Company or any subsidiary thereof, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the Trustee (as
defined in the Indenture relating to the Securities), a signed letter containing
cer
-2-
tain representations and agreements relating to the restrictions on transfer of
the Securities (the form of which letter can be obtained from the Trustee), (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing Securities from us a notice advising such purchaser
that resales of the Securities are restricted as stated herein.
3. We understand that, on any proposed resale of Securities, we will
be required to furnish to the Trustee and the Company, such certifications,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
5. We are acquiring the Securities purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:________________________________
Name:
Title:
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
_____________,_____
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Corporate Trust - Bond Administration
Re: Young Broadcasting Inc. (the "Company")
10% Senior Subordinated Notes
due 2011 (the "Securities")
---------------------------------------
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________________
[Authorized Signature]
