Exhibit 4.3
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INDENTURE
Dated as of January 23, 1997
Among
CHANCELLOR RADIO BROADCASTING COMPANY, as Issuer,
and
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
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$360,000,000
12% Subordinated Exchange Debentures due 2009
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CROSS-REFERENCE TABLE
[S] [C]
TIA Indenture
Section Section
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310(a)(1) . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 7.08;
7.10(b)
7.08; . . . . . . . . . . . . . . . . . . 7.10;
. 11.02
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . 7.06;
11.02
(d) . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . 4.07;
4.09;
11.02
(b) . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . . N.A
315(a) . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of TIA 19
Section 1.03 Rules of Construction . . . . . 20
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating . . . . . . . . 21
Section 2.02 Execution and Authentication . . 21
Section 2.03 Registrar and Paying Agent . . . 22
Section 2.04 Paying Agent To Hold Assets in
Trust . . . . . . . . . . . . 23
Section 2.05 Securityholder Lists . . . . . . 23
Section 2.06 Transfer and Exchange . . . . . 24
Section 2.07 Replacement Securities . . . . . 24
Section 2.08 Outstanding Securities . . . . . 25
Section 2.09 Treasury Securities . . . . . . 25
Section 2.10 Temporary Securities . . . . . . 26
Section 2.11 Cancellation . . . . . . . . . . 26
Section 2.12 Defaulted Interest . . . . . . . 26
Section 2.13 CUSIP Number . . . . . . . . . . 27
Section 2.14 Deposit of Moneys . . . . . . . 27
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . 27
Section 3.02 Selection of Securities To Be
Redeemed . . . . . . . . . . . 28
Section 3.03 Notice of Redemption . . . . . . 28
Section 3.04 Effect of Notice of Redemption . 29
Section 3.05 Deposit of Redemption Price . . 30
Section 3.06 Securities Redeemed in Part . . 30
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . 30
Section 4.02 Maintenance of Office or Agency 31
Section 4.03 Limitation on Restricted Payments 31
Section 4.04 Corporate Existence . . . . . . 35
Section 4.05 Payment of Taxes and Other Claims 35
Page
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Section 4.06 Maintenance of Properties and
Insurance . . . . . . . . . . 36
Section 4.07 Compliance Certificate; Notice of
Default . . . . . . . . . . . 36
Section 4.08 Compliance with Laws . . . . . . 37
Section 4.09 SEC Reports . . . . . . . . . . 38
Section 4.10 Waiver of Stay, Extension or Usury
Laws . . . . . . . . . . . . . 38
Section 4.11 Limitation on Transactions with
Affiliates . . . . . . . . . . 38
Section 4.12 Limitation on Incurrence of
Additional Indebtedness . . . 39
Section 4.13 Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries . . . . . . . . . 39
Section 4.14 Change of Control . . . . . . . 40
Section 4.15 Limitation on Asset Sales . . . 43
Section 4.16 Limitation on Preferred Stock of
Subsidiaries . . . . . . . . . 47
Section 4.17 Limitation on Asset Swaps . . . 47
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc. . . 48
Section 5.02 Successor Corporation Substituted 49
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . 50
Section 6.02 Acceleration . . . . . . . . . . 51
Section 6.03 Other Remedies . . . . . . . . . 52
Section 6.04 Waiver of Past Defaults . . . . 53
Section 6.05 Control by Majority . . . . . . 53
Section 6.06 Limitation on Suits . . . . . . 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 55
Section 6.10 Priorities . . . . . . . . . . . 55
Section 6.11 Undertaking for Costs . . . . . 56
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . 56
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Page
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Section 7.02 Rights of Trustee . . . . . . . 58
Section 7.03 Individual Rights of Trustee . . 59
Section 7.04 Trustee's Disclaimer . . . . . . 59
Section 7.05 Notice of Default . . . . . . . 60
Section 7.06 Reports by Trustee to Holders . 60
Section 7.07 Compensation and Indemnity . . . 61
Section 7.08 Replacement of Trustee . . . . . 62
Section 7.09 Successor Trustee by Merger, Etc. 63
Section 7.10 Eligibility; Disqualification . 63
Section 7.11 Preferential Collection of Claims
Against the Company . . . . . 64
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's
Obligations . . . . . . . . . 64
Section 8.02 Acknowledgment of Discharge by
Trustee . . . . . . . . . . . 67
Section 8.03 Application of Trust Money . . . 67
Section 8.04 Repayment to the Company . . . . 67
Section 8.05 Reinstatement . . . . . . . . . 68
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . 68
Section 9.02 With Consent of Holders . . . . 69
Section 9.03 Compliance with TIA . . . . . . 70
Section 9.04 Revocation and Effect of Consents 70
Section 9.05 Notation on or Exchange of
Securities . . . . . . . . . . 71
Section 9.06 Trustee To Sign Amendments, Etc. 71
ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 10.01 Securities Subordinated to Senior
Indebtedness . . . . . . . . . 72
Section 10.02 No Payment on Securities in Certain
Circumstances . . . . . . . . 73
Section 10.03 Payment Over of Proceeds upon
Dissolution, Etc. . . . . . . 75
Section 10.04 Payments May Be Paid Prior to
Dissolution . . . . . . . . . 77
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Page
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Section 10.05 Subrogation . . . . . . . . . . 77
Section 10.06 Obligations of the Company
Unconditional . . . . . . . . 78
Section 10.07 Notice to Trustee . . . . . . . 78
Section 10.08 Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . 79
Section 10.09 Trustee's Relation to Senior
Indebtedness . . . . . . . . . 79
Section 10.10 Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness 80
Section 10.11 Securityholders Authorize Trustee To
Effectuate Subordination of
Securities . . . . . . . . . . 81
Section 10.12 This Article Ten Not To Prevent Events
of Default . . . . . . . . . . 81
Section 10.13 Trustee's Compensation Not
Prejudiced . . . . . . . . . . 81
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls . . . . . . . . . . 81
Section 11.02 Notices . . . . . . . . . . . . 82
Section 11.03 Communications by Holders with Other
Holders . . . . . . . . . . . 83
Section 11.04 Certificate and Opinion as to Conditions
Precedent . . . . . . . . . . 83
Section 11.05 Statements Required in Certificate or
Opinion . . . . . . . . . . . 83
Section 11.06 Rules by Trustee, Paying Agent, Xxxxxxxxx 00
Section 11.07 Legal Holidays . . . . . . . . . 84
Section 11.08 Governing Law . . . . . . . . . 84
Section 11.09 No Adverse Interpretation of Other
Agreements . . . . . . . . . . 85
Section 11.10 No Recourse Against Others . . . 85
Section 11.11 Successors . . . . . . . . . . . 85
Section 11.12 Duplicate Originals . . . . . . 85
Section 11.13 Severability . . . . . . . . . . 85
Signatures . . . . . . . . . . . . . . . 86
Exhibit A - Form of Security . . . . . . . . . . A-1
Note: This Table of Contents shall not, for any purpose, be deemed
to be part of the Indenture.
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INDENTURE, dated as of January 23, 1997, between Chancellor
Radio Broadcasting Company, a Delaware corporation (the "Company"),
and U.S. Trust Company of Texas, N.A., a national banking association,
as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of
the Company's 12% Subordinated Exchange Debentures due 2009 (the
"Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
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"Acceleration Notice" has the meaning provided in Section
6.02.
"Acquired Indebtedness" means Indebtedness of a Person or
any of its Subsidiaries existing at the time such Person becomes a
Subsidiary of the Company or at the time it merges or consolidates
with the Company or any of its Subsidiaries or assumed in connection
with the acquisition of assets from such Person and not incurred by
such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquired Preferred Stock" means Preferred Stock of any
Person at the time such Person becomes a Subsidiary of the Company or
at the time it merges or consolidates with the Company or any of its
Subsidiaries and not issued by such Person in connection with, or in
anticipation or contemplation of, such acquisition, merger or
consolidation.
"Affiliate" means a Person who, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or
is under common control with, the Company. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
"Affiliate Transaction" has the meaning provided in
Section 4.11.
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"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company
or any Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Subsidiary of the Company or shall be
consolidated or merged with the Company or any Subsidiary of the
Company or (ii) the acquisition by the Company or any Subsidiary of
the Company of assets of any Person comprising a division or line of
business of such Person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into
in the ordinary course of business), assignment or other transfer for
value by the Company or any of its Subsidiaries (excluding any Sale
and Leaseback Transaction or any pledge of assets or stock by the
Company or any of its Subsidiaries) to any Person other than the
Company or a Wholly Owned Subsidiary of the Company of (i) any Capital
Stock of any Subsidiary of the Company or (ii) any other property or
assets of the Company or any Subsidiary of the Company other than in
the ordinary course of business; provided, however, that for purposes
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of Section 4.15 hereof, Asset Sales shall not include (a) a
transaction or series of related transactions for which the Company or
its Subsidiaries receive aggregate consideration of less than
$500,000, (b) transactions permitted under Section 4.17 hereof or
(c) transactions permitted under Section 5.01 hereof.
"Asset Swap" means the execution of a definitive agreement,
subject only to approval of the Federal Communications Commission and
other customary closing conditions, that the Company in good faith
believes will be satisfied, for a substantially concurrent purchase
and sale, or exchange, of Productive Assets between the Company or any
of its Subsidiaries and another Person or group of affiliated Persons;
provided that any amendment to or waiver of any closing condition
which individually or in the aggregate is material to the Asset Swap
shall be deemed to be a new Asset Swap.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal, state or foreign law for the relief of debtors.
"Blockage Period" shall have the meaning provided in Section
10.02.
"Board of Directors" means, with respect to any Person, the
board of directors (or any other equivalent governing body)
--
of such Person or any committee of the board of directors of such
Person duly authorized, with respect to any particular matter, to
exercise the power of the board of directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is
a corporation, any and all shares, interests, participations or other
equivalents (however designated) of capital stock, including each
class of common stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease
to which such Person is a party that is required to be classified and
accounted for as a capital lease obligation under GAAP and, for
purposes of this definition, the amount of such obligation at any date
shall be the capitalized amount of such obligation at such date,
determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within
one year from the date of acquisition thereof; (ii) marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition thereof
and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc.; (iii) commercial paper maturing no more than
one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from Standard & Poor's
Corporation or at least P-1 from Xxxxx'x Investors Service, Inc.; (iv)
certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any commercial
bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $200,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying
securities of the types
--
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in
money market funds which invest substantially all their assets in
securities of the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of
the following events: (i) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group
of related Persons for purposes of Section 13(d) of the Exchange Act
(a "Group") (whether or not otherwise in compliance with the
provisions of this Indenture), other than to Xxxxx Muse or any of its
Affiliates, officers and directors or to Xxxxxx Xxxxxx (the "Permitted
Holders"); or (ii) a majority of the Board of Directors of Holdings or
the Company shall consist of Persons who are not Continuing Directors;
or (iii) the acquisition by any Person or Group (other than the
Permitted Holders) of the power, directly or indirectly, to vote or
direct the voting of securities having more than 50% of the ordinary
voting power for the election of directors of Holdings or the Company.
"Change of Control Date" has the meaning provided in
Section 4.14.
"Change of Control Offer" has the meaning provided in
Section 4.14.
"Change of Control Payment Date" has the meaning provided in
Section 4.14.
"Change of Control Redemption" has the meaning specified in
the form of Security.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered
into by the Company or any of its Subsidiaries designed to protect the
Company or any of its Subsidiaries against fluctuations in the price
of commodities actually used in the ordinary course of business of the
Company and its Subsidiaries.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and
thereafter means such successor and also includes for the purposes of
any provision contained herein and required by the TIA any other
obligor on the Securities.
--
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net
Income and (ii) to the extent Consolidated Net Income has been reduced
thereby, (A) all income taxes of such Person and its Subsidiaries paid
or accrued in accordance with GAAP for such period (other than income
taxes attributable to extraordinary or non-recurring gains or losses),
(B) Consolidated Interest Expense and (C) Consolidated Non-Cash
Charges, all as determined on a consolidated basis for such Person and
its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, with respect to any
Person for any period, without duplication, the sum of (i) the
interest expense of such Person and its Subsidiaries for such period
as determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of debt discount,
(b) the net cost under Interest Swap Obligations (including any
amortization of discounts), (c) the interest portion of any deferred
payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) all accrued interest and
(ii) the interest component of Capitalized Lease Obligations paid or
accrued by such Person and its Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any
period, the aggregate net income (or loss) of such Person and its
Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom,
--------
without duplication, (a) gains and losses from Asset Sales (without
regard to the $500,000 limitation set forth in the definition thereof)
or abandonments or reserves relating thereto and the related tax
effects, (b) items classified as extraordinary or nonrecurring gains
and losses, and the related tax effects according to GAAP, (c) the net
income (or loss) of any Person acquired in a pooling of interests
transaction accrued prior to the date it becomes a Subsidiary of such
first referred to Person or is merged or consolidated with it or any
of its Subsidiaries, (d) the net income of any Subsidiary to the
extent that the declaration of dividends or similar distributions by
that Subsidiary of that income is restricted by contract, operation of
law or otherwise and (e) the net income of any Person, other than a
Subsidiary, except to the extent of the lesser of (x) dividends or
distributions paid to such first referred to Person or its Subsidiary
by such Person and (y) the net income of such Person (but in no event
less than zero), and the net loss of such Person shall be included
only to the extent
--
of the aggregate Investment of the first referred to Person or a
consolidated Subsidiary of such Person.
"Consolidated Non-Cash Charges" means, with respect to any
Person for any period, the aggregate depreciation, amortization and
other non-cash expenses of such Person and its Subsidiaries reducing
Consolidated Net Income of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP
(excluding any such charges constituting an extraordinary or
nonrecurring item).
"Continuing Director" means, as of the date of
determination, any Person who (i) was a member of the Board of
Directors of Holdings or the Company on the date of this Indenture,
(ii) was nominated for election or elected to the Board of Directors
of Holdings or the Company with the affirmative vote of a majority of
the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election, or (iii) is a
representative of a Permitted Holder.
"Credit Agreement" means the amended and restated Credit
Agreement to be dated on or about the Preferred Stock Issue Date among
Holdings, the Company, the lenders from time to time party thereto and
Bankers Trust Company as administrative agent, together with the
related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case, as such
agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including by way of adding
Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the
same or any other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement
designed to protect the Company or any of its Subsidiaries against
fluctuation in currency values.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of
which is, or with the lapse of time or the giving of notice or
--
both would be, an Event of Default.
"Default Notice" shall have the meaning provided in Section
10.02.
"Designated Senior Indebtedness" means (i) Indebtedness
under or in respect of the Credit Agreement, the Existing Notes and
the Notes and (ii) any other Indebtedness constituting Senior
Indebtedness which, at the time of determination, has an aggregate
principal amount of at least $25,000,000 and is specifically
designated in the instrument evidencing such Senior Indebtedness as
"Designated Senior Indebtedness" by the Company.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital Stock" means any Capital Stock which,
by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of
any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof (except, in each
case, upon the occurrence of a Change of Control), in whole or in
part, on or prior to the final maturity date of the Securities.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
"Exchangeable Preferred Stock" means the 12% Exchangeable
Preferred Stock, par value $.01 per share, or shares of Preferred
Stock issued in exchange therefor.
"Existing Notes" means $80.0 million aggregate principal
amount of 12 1/2% Senior Subordinated Notes due 2004 of the Company,
issued pursuant to an indenture (the "Existing Note Indenture"), dated
as of October 1, 1994, as the same may be modified or amended from
time to time and future refinancings thereof.
"Financial Monitoring and Oversight Agreements" means the
Financial Monitoring and Oversight Agreement among Xxxxx, Muse & Co.
Partners, L.P., the Company and Holdings as in effect on the Preferred
Stock Issue Date, and the Financial Advisory
--
Agreement among HM2/Management Partners, L.P., the Company and
Holdings, as in effect on the Preferred Stock Issue Date.
"Funds" shall have the meaning provided in Section 8.01.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the Issue Date.
"Xxxxx Muse" means Hicks, Muse, Xxxx & Xxxxx Incorporated, a
Delaware corporation.
"Holder" or "Securityholder" means the Person in whose name
a Security is registered on the Registrar's books.
"Holdings" means Chancellor Broadcasting Company, a Delaware
corporation, and its successors.
"Indebtedness" means with respect to any Person, without
duplication, any liability of such Person (i) for borrowed money,
(ii) evidenced by bonds, debentures, notes or other similar
instruments, (iii) constituting Capitalized Lease Obligations,
(iv) incurred or assumed as the deferred purchase price of property,
or pursuant to conditional sale obligations and title retention
agreements (but excluding trade accounts payable arising in the
ordinary course of business), (v) for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit
transaction, (vi) for Indebtedness of others guaranteed by such
Person, (vii) for Interest Swap Obligations, Commodity Agreements and
Currency Agreements and (viii) for Indebtedness of any other Person of
the type referred to in clauses (i) through (vii) which are secured by
any Lien on any property or asset of such first referred to Person,
the amount of such Indebtedness being deemed to be the lesser of the
value of such property or asset or the amount of the Indebtedness so
secured. The amount of Indebtedness of any Person at any date shall
be the outstanding principal amount of all unconditional obligations
described above, as such amount would be reflected on a balance sheet
prepared in accordance with GAAP, and the maximum liability at such
date of such Person for any contingent obligations described above.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Interest Payment Date" means the stated maturity of an
--
installment of interest on the Securities.
"Interest Swap Obligations" means the obligations of any
Person under any interest rate protection agreement, interest rate
future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement.
"Investment" means (i) any transfer or delivery of cash,
stock or other property of value in exchange for Indebtedness, stock
or other security or ownership interest in any Person by way of loan,
advance, capital contribution, guarantee or otherwise and (ii) an
investment deemed to have been made by the Company at the time any
entity which was a Subsidiary of the Company ceases to be such a
Subsidiary in an amount equal to the value of the loans and advances
made, and any remaining ownership interest in, such entity immediately
following such entity ceasing to be a Subsidiary of the Company. The
amount of any non-cash Investment shall be the fair market value of
such Investment, as determined conclusively in good faith by
management of the Company unless the fair market value of such
Investment exceeds $1,000,000, in which case the fair market value
shall be determined conclusively in good faith by the Board of
Directors of the Company at the time such Investment is made.
"Issue Date" means the date of original issuance of the
Securities.
"Legal Holiday" has the meaning provided in Section 11.07.
"Leverage Ratio" shall mean, as to any Person, the ratio of
(i) the sum of the aggregate outstanding amount of Indebtedness of
such Person and its Subsidiaries as of the date of calculation on a
consolidated basis in accordance with GAAP to (ii) the Consolidated
EBITDA of such Person for the four full fiscal quarters (the "Four
Quarter Period") ending on or prior to the date of determination.
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Person and its Subsidiaries
for which such calculation is made shall be determined on a pro forma
basis as if the Indebtedness giving rise to the need to perform such
calculation had been incurred and the proceeds therefrom had been
applied, and all other transactions in respect of which such
Indebtedness is being incurred had occurred, on the last day of the
Four Quarter Period. In addition to the foregoing, for purposes of
this definition, "Consolidated EBITDA" shall be calculated on a pro
--
forma basis after giving effect to (i) the incurrence of the
Indebtedness of such Person and its Subsidiaries (and the application
of the proceeds therefrom) giving rise to the need to make such
calculation and any incurrence (and the application of the proceeds
therefrom) or repayment of other Indebtedness, other than the
incurrence or repayment of Indebtedness pursuant to working capital
facilities, at any time subsequent to the beginning of the Four
Quarter Period and on or prior to the date of determination, as if
such incurrence (and the application of the proceeds thereof) or the
repayment, as the case may be, occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to
the need to make such calculation as a result of such Person or one of
its Subsidiaries (including any Person who becomes a Subsidiary as a
result of such Asset Acquisition) incurring, assuming or otherwise
becoming liable for Indebtedness) at any time on or subsequent to the
first day of the Four Quarter Period and on or prior to the date of
determination, as if such Asset Sale or Asset Acquisition (including
the incurrence, assumption or liability for any such Indebtedness and
also including any Consolidated EBITDA associated with such Asset
Acquisition) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Interest Expense" for
purposes of the calculation of "Consolidated EBITDA," (i) interest on
Indebtedness determined on a fluctuating basis as of the date of
determination (including Indebtedness actually incurred on the date of
the transaction giving rise to the need to calculate the Leverage
Ratio) and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness as in effect on the date of
determination and (ii) notwithstanding (i) above, interest determined
on a fluctuating basis, to the extent such interest is covered by
Interest Swap Obligations, shall be deemed to accrue at the rate per
annum resulting after giving effect to the operation of such
agreements.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the
nature thereof and any agreement to give any security interest).
"Maturity Date" means January 15, 2009.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds in the form of cash or Cash Equivalents (including
payments in respect of deferred payment obligations
--
when received in the form of cash or Cash Equivalents) received by the
Company or any of its Subsidiaries from such Asset Sale net of
(i) reasonable out-of-pocket expenses and fees relating to such Asset
Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance
premiums, appraisers fees and costs reasonably incurred in preparation
of any asset or property for sale), (ii) taxes paid or reasonably
estimated to be payable (calculated based on the combined state,
federal and foreign statutory tax rates applicable to the Company or
the Subsidiary engaged in such Asset Sale) and (iii) repayment of
Indebtedness secured by assets subject to such Asset Sale; provided
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that if the instrument or agreement governing such Asset Sale
requires the transferor to maintain a portion of the purchase price in
escrow (whether as a reserve for adjustment of the purchase price or
otherwise) or to indemnify the transferee for specified liabilities in
a maximum specified amount, the portion of the cash or Cash
Equivalents that is actually placed in escrow or segregated and set
aside by the transferor for such indemnification obligation shall not
be deemed to be Net Cash Proceeds until the escrow terminates or the
transferor ceases to segregate and set aside such funds, in whole or
in part, and then only to the extent of the proceeds released from
escrow to the transferor or that are no longer segregated and set
aside by the transferor.
"Net Proceeds Offer" has the meaning provided in Section
4.15.
"Notes" means $200.0 million aggregate principal amount of 9
3/8% Senior Subordinated Notes due 2004 of the Company, issued
pursuant to an indenture (the "Note Indenture"), dated as of
February 14, 1996, as the same may be modified or amended from time to
time and future refinancings thereof.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities payable under the documentation governing, or
otherwise relating to, any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Controller,
or the Secretary of such Person, or any other officer designated by
the Board of Directors serving in a similar capacity.
--
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of such Person and
otherwise complying with the requirements of Sections 11.04 and 11.05,
as they relate to the making of an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 11.04 and 11.05, as they relate to the giving
of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03,
except that, during the continuance of a Default or Event of Default
and for the purposes of Articles Three and Eight and Sections 4.14 and
4.15, the Paying Agent shall not be the Company or any Affiliate of
the Company.
"Permitted Indebtedness" means, without duplication,
(i) Indebtedness outstanding on the Issue Date, including, without
limitation, the Notes, the Existing Notes and the guarantees thereof;
(ii) Indebtedness of the Company incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not
to exceed the sum of the aggregate commitments pursuant to the Credit
Agreement as initially in effect reduced by the aggregate principal
amount permanently repaid with the proceeds of Asset Sales;
(iii) Indebtedness evidenced by or arising under the Securities and
the Indenture, including any Securities issued in accordance herewith
as payment of Interest on the Securities; (iv) Interest Swap
Obligations; provided that such Interest Swap Obligations are entered
--------
into to protect the Company from fluctuations in interest rates of its
Indebtedness; (v) additional Indebtedness of the Company or any of its
Subsidiaries not to exceed $10,000,000 in principal amount
outstanding at any time (which amount may, but need not, be incurred
under the Credit Agreement); (vi) Refinancing Indebtedness;
(vii) Indebtedness owed by the Company to any Wholly Owned Subsidiary
or by any Subsidiary to the Company or any Wholly Owned Subsidiary of
the Company; and (viii) guarantees by Subsidiaries of any Indebtedness
permitted to be incurred pursuant to this Indenture.
"Permitted Investments" means (i) Investments by the Company
or any Subsidiary to acquire the stock or assets of any Person (or
Indebtedness of such Person acquired in connection with a transaction
in which such Person becomes a Subsidiary of the Company) engaged in
the broadcast business or businesses reasonably related thereto;
provided that if any such Investment
--------
--
or series of related Investments involves an Investment by the Company
in excess of $5,000,000, the Company is able, at the time of such
Investment and immediately after giving effect thereto, to incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12 hereof, (ii) Investments
received by the Company or its Subsidiaries as consideration for a
sale of assets, including an Asset Sale effected in compliance with
Section 4.15 hereof, (iii) Investments by the Company or any Wholly
Owned Subsidiary of the Company in any Wholly Owned Subsidiary of the
Company (whether existing on the Issue Date or created thereafter) or
any Person that after such Investments, and as a result thereof,
becomes a Wholly Owned Subsidiary of the Company and Investments in
the Company by any Wholly Owned Subsidiary of the Company, (iv) cash
and Cash Equivalents, (v) Investments in securities of trade
creditors, wholesalers or customers received pursuant to any plan of
reorganization or similar arrangement and (vi) additional Investments
in an aggregate amount not to exceed $2,500,000 at any time
outstanding.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint
venture, or a governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon
liquidation.
"Preferred Stock Issue Date" means the date of original
issuance of the Exchangeable Preferred Stock.
"principal" of any Indebtedness (including the Securities)
means the principal amount of such Indebtedness plus the premium, if
any, on such Indebtedness.
"Proceeds Purchase Date" shall have the meaning provided in
Section 4.15.
"Productive Assets" means assets of a kind used or usable by
the Company and its Subsidiaries in broadcast business or businesses
reasonably related thereto, and specifically includes assets acquired
through Asset Acquisitions.
"pro forma" means, unless otherwise provided herein, with
respect to any calculation made or required to be made pursuant to the
terms of this Indenture, a calculation in
--
accordance with Article 11 of Regulation S-X under the Securities Act.
"Public Equity Offering" means an underwritten public
offering of Capital Stock (other than Disqualified Capital Stock) of
the Company or Holdings, pursuant to an effective registration
statement filed with the Commission in accordance with the Securities
Act; provided, however, that, in the case of a Public Equity Offering
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by Holdings, Holdings contributes to the capital of the Company net
cash proceeds in an amount sufficient to redeem the Securities and
Existing Notes called for redemption in accordance with the terms
thereof.
"Qualified Capital Stock" means any Capital Stock that is
not Disqualified Capital Stock.
"Redemption Date" means, with respect to any Securities, the
Maturity Date of such Security or the earlier date on which such
Security is to be redeemed by the Company pursuant to the terms of the
Securities.
"Redemption Price" shall have the meaning provided in
Section 3.03.
"Refinancing Indebtedness" means any refinancing by the
Company of Indebtedness of the Company or any of its Subsidiaries
incurred in accordance with Section 4.12 hereof (other than pursuant
to clause (iii) or (iv) of the definition of Permitted Indebtedness)
that does not (i) result in an increase in the aggregate principal
amount of Indebtedness (such principal amount to include, for purposes
of this definition, any premiums, penalties or accrued interest paid
with the proceeds of the Refinancing Indebtedness) of such Person or
(ii) create Indebtedness with (A) a Weighted Average Life to Maturity
that is less than the Weighted Average Life to Maturity of the
Indebtedness being refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Representative" means the indenture trustee or other
trustee, agent or representative in respect of any Designated Senior
Indebtedness; provided that if, and for so long as, any Designated
--------
Senior Indebtedness lacks such a representative, then the
Representative for such Designated Senior Indebtedness shall at all
times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness.
--
"Restricted Payment" has the meaning provided in Section
4.03.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a Subsidiary of any
property, whether owned by the Company or any Subsidiary at the Issue
Date or later acquired, which has been or is to be sold or transferred
by the Company or such Subsidiary to such Person or to any other
Person from whom funds have been or are to be advanced by such Person
on the security of such property.
"SEC" means the Securities and Exchange Commission.
"Secondary Securities" has the meaning specified in the form
of the Security.
"Securities" means the Company's 12% Subordinated Exchange
Debentures due 2009, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"Senior Exchange Debentures" means the 12 1/4% Subordinated
Exchange Debentures due 2008 for which the Senior Exchangeable
Preferred Stock are exchangeable.
"Senior Exchangeable Preferred Stock" means the Company's 12
1/4 % Senior Cumulative Exchangeable Preferred Stock, par value $.01
per share.
"Senior Indebtedness" means any Indebtedness of the Company
(including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim
under applicable law), whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides
that such Indebtedness shall not be senior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall also include the principal of, premium, if any,
interest (including any interest accruing subsequent to the
--
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in
respect of, and all monetary obligations of every nature under, (w)
the Credit Agreement, including, without limitation, obligations to
pay principal and interest, reimbursement obligations under letters of
credit, fees, expenses and indemnities, (x) all Interest Swap
Obligations, (y) the Notes and (z) the Existing Notes. Notwithstand-
ing the foregoing, Senior Indebtedness shall not include any of the
following amounts (whether or not constituting Indebtedness as defined
in this Indenture): (i) any Indebtedness of the Company to a
Subsidiary of the Company; (ii) Indebtedness and other amounts owing
to trade creditors incurred in connection with obtaining goods,
materials or services; (iii) Indebtedness represented by Disqualified
Capital Stock; (iv) any liability for federal, state, local or other
taxes owed or owing by the Company; and (v) the Senior Exchange
Debentures, which shall rank pari passu with the Securities.
"Significant Subsidiary" means for any Person each
Subsidiary of such Person which (i) for the most recent fiscal year of
such Person accounted for more than 5% of the consolidated net income
of such Person or (ii) as at the end of such fiscal year, was the
owner of more than 5% of the consolidated assets of such Person.
"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (ii) any other Person of which at least
a majority of the voting interest under ordinary circumstances is at
the time, directly or indirectly, owned by such Person.
Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to
financial information prepared on a consolidated basis in accordance
with GAAP shall be deemed to include the Company and its Subsidiaries
as to which financial statements are prepared on a combined basis in
accordance with GAAP and to financial information prepared on such a
combined basis. Notwithstanding anything in this Indenture to the
contrary, an Unrestricted Subsidiary shall not be deemed to be a
Subsidiary for purposes of this Indenture.
"Tax Sharing Agreement" means the Tax Sharing Agreement
between the Company and Holdings as in effect on the Preferred Stock
Issue Date.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
sections 77aaa-77bbbb), as amended, as in effect on the date on which
this Indenture is qualified under the TIA, except as otherwise
provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"Trust Officer" means any officer or assistant officer of
the Trustee assigned by the Trustee to administer its corporate trust
matters or, in the case of a successor trustee, an officer assigned to
the department, division or group performing the corporate trust work
of such successor.
"Unrestricted Subsidiary" means a Subsidiary of the Company
created after the Issue Date and so designated by a resolution adopted
by the Board of Directors of the Company, provided that (a) neither
the Company nor any of its other Subsidiaries (other than Unrestricted
Subsidiaries) (1) provides any credit support for any Indebtedness of
such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness) or (2) is directly or indirectly liable
for any Indebtedness of such Subsidiary, (b) the creditors with
respect to Indebtedness for borrowed money of such Subsidiary, having
a principal amount in excess of $5,000,000, have agreed in writing
that they have no recourse, direct or indirect, to the Company or any
other Subsidiary of the Company (other than Unrestricted
Subsidiaries), including, without limitation, recourse with respect to
the payment of principal of or interest on any Indebtedness of such
Subsidiary and (c) at the time of designation of such Subsidiary such
Subsidiary has no property or assets (other than de minimis assets
-- -------
resulting from the initial capitalization of such Subsidiary). Any
such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by the filing with the Trustee of a certified
copy of the resolution of the Company's Board of Directors giving
effect to such designation and an Officers' Certificate certifying
that such designation complied with the foregoing conditions.
"U.S. Government Obligations" has the meaning provided in
Section 8.01.
"U.S. Legal Tender" means such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
"Weighted Average Life to Maturity" means, when applied
--
to any Indebtedness at any date, the number of years obtained by
dividing (a) the then outstanding aggregate principal amount of such
Indebtedness into (b) the total of the product obtained by multiplying
(i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including
payment at final maturity, in respect thereof, by (ii) the number of
years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other
than directors' qualifying shares) or other voting interest which
normally have the right to vote in the election of directors or under
ordinary circumstances are owned by such Person or any Wholly Owned
Subsidiary of such Person.
SECTION 1.02 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in, and made a part of,
this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
SEC rule and not otherwise defined herein have the meanings assigned
to them therein.
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SECTION 1.03 Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the Preferred
Stock Issue Date;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.
---------------
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company shall approve the form
of the Securities and any notation, legend or endorsement thereon.
Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture
and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
SECTION 2.02 Execution and Authentication.
----------------------------
Two Officers, or an Officer and an Assistant Secretary,
shall sign, or one Officer shall sign and one Officer or an Assistant
Secretary (each of whom shall, in each case, have been duly authorized
by all requisite corporate actions) shall attest to, the Securities
for the Company by manual or facsimile
--
signature.
If an Officer, Secretary or Assistant Secretary whose
signature is on a Security was an Officer or Assistant Secretary at
the time of such execution but no longer holds that office or position
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of up to $360,000,000 upon receipt
of a written order of the Company in the form of an Officers'
Certificate. Such Officers' Certificate shall specify the amount of
Securities to be authenticated and the date on which the Securities
are to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed $360,000,000 except as provided
in Section 2.07. Upon the written order of the Company in the form of
an Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name
change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless
otherwise provided in the appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company and Affiliates of the
Company.
The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 and any integral
multiple thereof; provided, however, that Securities may be issued in
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denominations of less than $1,000 (but not less than $1.00) upon the
initial exchange of the Exchangeable Preferred Stock for the
Securities such that each holder of Exchangeable Preferred Stock shall
receive Securities in a principal amount equal to the full liquidation
preference of the Exchangeable Preferred Stock on the Issue Date (as
specified to the Trustee in the officers' certificate delivered
pursuant to this Section 2.02; provided, further, however, that
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Secondary Securities may be issued in denominations of less than
$1,000 (but not less than
--
$1.00).
SECTION 2.03 Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which shall
be located in the Borough of Manhattan in the City of New York, State
of New York), where (a) Securities may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Securities
may be presented or surrendered for payment ("Paying Agent") and
(c) notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The
Company, upon notice to the Trustee, may have one or more co-
Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any
additional paying agent. Neither the Company nor any Affiliate of the
Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent.
The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
SECTION 2.04 Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust
for the benefit of the Holders or the Trustee all assets held by the
Paying Agent for the payment of principal of, or interest on, the
Securities (whether such assets have been distributed to it by the
Company or any other obligor on the Securities), and shall notify the
Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. The Company at any time may
require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written
request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that
--
shall have been delivered by the Company to the Paying Agent and the
completion of any accounting required to be made hereunder, the Paying
Agent shall have no further liability for such assets.
SECTION 2.05 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the
names and addresses of the Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee five (5) Business
Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list as of the applicable Record Date
and in such form as the Trustee may reasonably require of the names
and addresses of the Holders, which list may be conclusively relied
upon by the Trustee.
SECTION 2.06 Transfer and Exchange.
---------------------
When Securities are presented to the Registrar or a co-
Registrar with a request to register the transfer of such Securities
or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations, the Registrar or co-
Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided,
--------
however, that the Securities surrendered for transfer or exchange
-------
shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in
connection therewith. The Registrar or co-Registrar shall not be
required to register the transfer of or exchange of any Security
(i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Securities and ending
at the close of business on the day of such mailing and (ii) selected
for redemption in whole or in part pursuant to Article Three, except
the unredeemed portion of any Security being redeemed in part.
SECTION 2.07 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been
--
lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Company, such
Holder must provide an indemnity bond or other indemnity, sufficient
in the judgment of the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge such Holder
for its reasonable, out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every replacement
Security shall constitute an additional obligation of the Company.
SECTION 2.08 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities
that have been authenticated by the Trustee except those cancelled by
it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be
outstanding because the Company or any of its Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.07 (other
than a mutilated Security surrendered for replacement), it ceases to
be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser. A
---- ----
mutilated Security ceases to be outstanding upon surrender of such
Security and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying
Agent holds U.S. Legal Tender or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the
Securities payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture,
then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.09 Treasury Securities.
-------------------
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver, consent
or notice, Securities owned by the Company or an Affiliate shall be
considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so considered. The
Company shall notify the Trustee, in
--
writing, when it or any of its Affiliates repurchases or otherwise
acquires Securities, of the aggregate principal amount of such
Securities so repurchased or otherwise acquired.
SECTION 2.10 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Securities upon receipt of a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall specify
the amount of temporary Securities to be authenticated and the date on
which the temporary Securities are to be authenticated. Temporary
Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall
prepare and execute, and the Trustee shall authenticate upon receipt
of a written order of the Company pursuant to Section 2.02, definitive
Securities in exchange for temporary Securities.
SECTION 2.11 Cancellation.
------------
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for
transfer, exchange or payment. The Trustee, or at the direction of
the Trustee, the Registrar or the Paying Agent, and no one else, shall
cancel and, at the written direction of the Company, shall dispose of
all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new
Securities to replace Securities that the Company has paid or
delivered to the Trustee for cancellation. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee
for cancellation pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest to the Persons
who are Holders on a subsequent special record date, which date shall
be the fifteenth day next preceding the date fixed by the Company for
the payment of defaulted interest or the next succeeding Business Day
if such date is not a Business Day. At least 15 days before the
subsequent special record date, the
--
Company shall mail to each Holder, with a copy to the Trustee, a
notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.
SECTION 2.13 CUSIP Number.
------------
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices
of redemption or exchange as a convenience to Holders; provided that
--------
no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of the CUSIP number printed in the notice or
on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities.
SECTION 2.14 Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each Interest
Payment Date and Maturity Date, the Company shall have deposited with
the Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits
the Paying Agent to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to
paragraph 6 of the Securities, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the principal
amount of the Securities to be redeemed and whether it wants the
Trustee to give notice of redemption to the Holders (at the Company's
expense) at least 60 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 90 days before the
Redemption Date. Any such notice may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
--
SECTION 3.02 Selection of Securities To Be Redeemed.
--------------------------------------
If fewer than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with
the requirements of the principal national securities exchange, if
any, on which the Securities being redeemed are listed, or, if the
Securities are not listed on a national securities exchange, on a pro
---
rata basis, by lot or in such other fair and reasonable manner chosen
----
at the discretion of the Trustee; provided, however, that a redemption
-------- -------
pursuant to the provisions of paragraph 6(b) of the Securities shall
be made on a pro rata basis.
--- ----
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall
promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities
in denominations of $1,000 or less may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03 Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a notice
of redemption by first class mail to each Holder whose Securities are
to be redeemed, with a copy to the Trustee. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued
interest, if any, to be paid (the "Redemption Price");
(3) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
--
surrendered to the Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption
ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Securities is to receive
payment of the Redemption Price upon surrender to the Paying
Agent of the Securities redeemed;
(7) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and that,
after the Redemption Date, and upon surrender of such Security, a
new Security or Securities in the aggregate principal amount
equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Securities are to be redeemed,
the identification of the particular Securities (or portion
thereof) to be redeemed, as well as the aggregate principal
amount of Securities to be redeemed and the aggregate principal
amount of Securities to be outstanding after such partial
redemption.
SECTION 3.04 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with
Section 3.03, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon surrender to
the Trustee or Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price.
SECTION 3.05 Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the
Redemption Price of all Securities to be redeemed on that date. The
Paying Agent shall promptly return to the Company any U.S. Legal
Tender so deposited which is not required for that purpose, except
with respect to monies owed as obligations to the Trustee pursuant to
Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price,
interest on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities
are presented for payment.
--
SECTION 3.06 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part,
the Trustee shall authenticate for the Holder a new Security or
Securities equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities.
An installment of principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or Paying Agent
holds on that date U.S. Legal Tender designated for and sufficient to
pay the installment or, if the interest is to be paid in Secondary
Securities, if the Trustee or the Paying Agent holds on that date duly
authenticated Secondary Securities in an aggregate principal amount
equal to such installment. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the
United States of America from principal or interest payments
hereunder.
SECTION 4.02 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required
under Section 2.03. The Company shall give prior notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
SECTION 4.03 Limitation on Restricted Payments.
---------------------------------
Neither the Company nor any of its Subsidiaries will,
directly or indirectly, (a) declare or pay any dividend or make any
distribution (other than dividends or distributions payable
--
in Qualified Capital Stock of the Company) on shares of the Company's
Capital Stock, (b) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any warrants, rights or
options to acquire shares of any class of such Capital Stock, other
than the exchange of such Capital Stock or any warrants, rights or
options to acquire shares of any class of such Capital Stock for
Qualified Capital Stock or warrants, rights or options to acquire
Qualified Capital Stock, (c) make any principal payment on, purchase,
defease, redeem, prepay, decrease or otherwise acquire or retire for
value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, any Indebtedness of the Company or its
Subsidiaries that is subordinate or junior in right of payment to the
Securities or (d) make any Investment (other than Permitted
Investments) (each of the foregoing prohibited actions set forth in
clauses (a), (b), (c) and (d) being referred to as a "Restricted
Payment"), if at the time of such Restricted Payment or immediately
after giving effect thereto, (i) a Default or an Event of Default has
occurred and is continuing, (ii) the Company is not able to incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12 hereof, or (iii) the
aggregate amount of Restricted Payments made subsequent to the
Preferred Stock Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as
determined by the Board of Directors of the Company in good faith)
exceeds the sum of:
(A)(x) 100% of the aggregate Consolidated EBITDA of the
Company (or, in the event such Consolidated EBITDA shall be a
deficit, minus 100% of such deficit) accrued subsequent to the
Preferred Stock Issue Date to the most recent date for which
financial information is available to the Company, taken as one
accounting period; less
(y) 1.4 times Consolidated Interest Expense for the same
period; plus
(B) 100% of the aggregate net proceeds, including the fair
market value of property other than cash as determined by the
Board of Directors of the Company in good faith, received by the
Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale on or after February 14, 1996 of
Qualified Capital Stock of the Company (excluding any net
proceeds from issuances and sales financed directly or indirectly
using funds borrowed from the Company or any Subsidiary of the
Company, until and to the extent such borrowing is repaid, but
including the proceeds from the issuance and sale of any
securities
--
convertible into or exchangeable for Qualified Capital Stock to
the extent such securities are so converted or exchanged and
including any additional proceeds received by the Company upon
such conversion or exchange) plus
(C) without duplication of any amounts included in clause
(iii)(B) above, 100% of the aggregate net proceeds, including the
fair market value of property other than cash (valued as
provided in clause (iii)(B) above), received by the Company as a
capital contribution (excluding any net proceeds from a Public
Equity Offering by Holdings to the extent used to redeem the
Securities) plus
(D) $2,500,000.
Notwithstanding the foregoing, the provisions of this
Section 4.03 shall not prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if
the dividend or distribution would have been permitted on the
date of declaration;
(2) the acquisition of Capital Stock or warrants, options
or other rights to acquire Capital Stock either (i) solely in
exchange for shares of Qualified Capital Stock or warrants,
options or other rights to acquire Qualified Capital Stock, or
(ii) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock
or warrants, options or other rights to acquire Qualified Capital
Stock;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities,
either (i) solely in exchange for shares of Qualified Capital
Stock (or warrants, options or other rights to acquire Qualified
Capital Stock) or for Indebtedness of the Company which is
subordinate or junior in right of payment to the Securities, at
least to the extent that the Indebtedness being acquired is
subordinated to the Securities and has a Weighted Average Life to
Maturity no less than that of the Indebtedness being acquired or
(ii) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock
(or warrants, options or other rights to acquire Qualified
Capital Stock) or Indebtedness of the Company
--
which is subordinate or junior in right of payment to the
Securities, at least to the extent that the Indebtedness being
acquired is subordinated to the Securities and has a Weighted
Average Life to Maturity no less than that of the Indebtedness
being refinanced;
(4) payments by the Company to fund the operating expenses
of Holdings in an amount not to exceed $500,000 per annum;
(5) payments by the Company to Holdings to enable Holdings
to make payments pursuant to (a) the Financial Monitoring and
Oversight Agreements or (b) the Tax Sharing Agreement;
(6) payments by the Company to repurchase, or to enable
Holdings to repurchase, Capital Stock or other securities of
Holdings from employees of Holdings or the Company in an
aggregate amount not to exceed $5,000,000;
(7) payments to enable Holdings to redeem or repurchase
stock purchase or similar rights in an aggregate amount not to
exceed $500,000;
(8) payments, not to exceed $100,000 in the aggregate, to
enable Holdings to make cash payments to holders of its Capital
Stock in lieu of the issuance of fractional shares of its Capital
Stock; and
(9) payments made pursuant to any merger, consolidation or
sale of assets effected in accordance with Section 5.01 hereof;
provided, however, that no such payment may be made pursuant to
-------- -------
this clause (9) unless, after giving effect to such transaction
(and the incurrence of any Indebtedness in connection therewith
and the use of the proceeds thereof), the Company would be able
to incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.12 hereof such that after
incurring that $1.00 of additional Indebtedness, the Leverage
Ratio would be less than 6.0 to 1;
provided, however, that in the case of clauses 5(a), (6), (7), (8) and
-------- -------
(9), no Default or Event of Default shall have occurred or be
continuing at the time of such payment or as a result thereof.
In determining the aggregate amount of Restricted Payments
made subsequent to the Preferred Stock Issue Date,
--
amounts expended pursuant to clauses (1), (2), (3) (but only to the
extent that Indebtedness is acquired in exchange for, or with the net
proceeds from, the issuance of Qualified Capital Stock or warrants,
options or other rights to acquire Qualified Capital Stock), 5(a),
(6), (7), (8) and (9) shall be included in such calculation.
Prior to any Restricted Payment under the first paragraph of
this Section 4.03, the Company shall deliver to the Trustee an
Officers' Certificate setting forth the computation by which the
amount available for Restricted Payments pursuant to such paragraph
was determined. The Trustee shall have no duty or responsibility to
determine the accuracy or correctness of this computation and shall be
fully protected in relying on such Officers' Certificate.
SECTION 4.04 Corporate Existence.
-------------------
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things reasonably necessary to
preserve and keep in full force and effect its corporate or other
existence and the corporate or other existence of each of its
Significant Subsidiaries in accordance with the respective
organizational documents of each such Significant Subsidiary and the
material rights (charter and statutory) and franchises of the Company
and each such Significant Subsidiary; provided, however, that the
-------- -------
Company shall not be required to preserve, with respect to itself, any
material right or franchise and, with respect to any of its
Significant Subsidiaries, any such existence, material right or
franchise, if the Board of Directors of the Company or such
Significant Subsidiary, as the case may be, shall determine that the
preservation thereof is no longer reasonably necessary or desirable in
the conduct of the business of the Company or any such Significant
Subsidiary.
SECTION 4.05 Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges (including withholding
taxes and any penalties, interest and additions to taxes) levied or
imposed upon it or any of its Subsidiaries or properties of it or any
of its Subsidiaries and (ii) all material lawful claims for labor,
materials, supplies and services that, if unpaid, might by law become
a Lien upon the property of it or any of its Subsidiaries; provided,
--------
however, that there shall not be required to be paid or discharged
-------
any such tax, assessment or charge, the amount, applicability or
validity of which is being
--
contested in good faith by appropriate proceedings and for which
adequate provision has been made or where the failure to effect such
payment or discharge is not adverse in any material respect to the
Holders.
SECTION 4.06 Maintenance of Properties and Insurance.
---------------------------------------
(a) The Company shall, and shall cause each of its
Subsidiaries to, maintain its material properties in normal condition
(subject to ordinary wear and tear) and make all reasonably necessary
repairs, renewals or replacements thereto as in the judgment of the
Company may be reasonably necessary to the conduct of the business of
the Company and its Subsidiaries; provided, however, that nothing in
-------- -------
this Section 4.06 shall prevent the Company or any of its Subsidiaries
from discontinuing the operation and maintenance of any of its
properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of the Company or the Subsidiary,
as the case may be, no longer reasonably necessary in the conduct of
their respective businesses.
(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company, are reasonably adequate
and appropriate for the conduct of the business of the Company and
such Subsidiaries.
SECTION 4.07 Compliance Certificate; Notice of Default.
-----------------------------------------
(c) The Company shall deliver to the Trustee, within 120
days after the end of the Company's fiscal year, an Officers'
Certificate (signed by the principal executive officer, principal
financial officer or principal accounting officer) stating that a
review of its activities and the activities of its Subsidiaries during
the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether it has kept,
observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such certificate,
that to the best of his knowledge the Company during such preceding
fiscal year has kept, observed, performed and fulfilled each and every
such obligation and no Default or Event of Default occurred during
such year and at the date of such certificate there is no Default or
Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify
--
the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end.
(d) The copy of the annual report on Form 10-K of the
Company as filed with the SEC or the annual financial statements
delivered to the Trustee pursuant to Section 4.09 shall be accompanied
by a written report of the Company's independent accountants that in
conducting their audit of the financial statements which are a part of
such annual report or such annual financial statements nothing has
come to their attention that would lead them to believe that the
Company has violated any provisions of Article Four, Five or Six
insofar as they relate to accounting matters 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.
(e) (i) If any Default or Event of Default has occurred and
is continuing or (ii) if any Holder seeks to exercise any remedy
hereunder with respect to a claimed Default under this Indenture or
the Securities, the Company shall deliver to the Trustee by registered
or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within five
Business Days of its becoming aware of such occurrence.
SECTION 4.08 Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America,
all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency
and instrumentality of the foregoing, in respect of the conduct of
their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries
taken as a whole.
SECTION 4.09 SEC Reports.
-----------
The Company shall file with the Trustee and provide to the
Securityholders, within 15 days after it files them with the SEC,
copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any
--
of the foregoing as the SEC may by rules and regulations prescribe)
which the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. In the event that the Company is no longer
required to furnish such reports to its securityholders pursuant to
the Exchange Act, the Company will cause its consolidated financial
statements, comparable to those which would have been required to
appear in annual or quarterly reports, to be delivered to the Holders
of the Securities. The Company shall also comply with the other
provisions of TIA section 314(a).
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal of
or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect
the obligations or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives
all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.11 Limitations on Transactions with Affiliates.
-------------------------------------------
Neither the Company nor any of its Subsidiaries will,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange
of any property or the rendering of any service) with or for the
benefit of any of its Affiliates (other than transactions between the
Company and a Wholly Owned Subsidiary of the Company or among Wholly
Owned Subsidiaries of the Company) (an "Affiliate Transaction"), other
than Affiliate Transactions on terms that are no less favorable than
those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an
Affiliate; provided, however, that for a transaction or series of
-------- -------
related transactions involving value of $1,000,000 or more, such
determination shall be made in good faith by a majority of the members
of the Board of Directors of the Company and by a majority of the
disinterested members of the Board of Directors of the Company, if
any; provided, further, that for a transaction or series of related
-------- -------
transactions involving value of $5,000,000
--
or more, the Board of Directors of the Company has received an opinion
from a nationally recognized investment banking firm that such
Affiliate Transaction is fair, from a financial point of view, to the
Company or such Subsidiary. The foregoing restrictions will not apply
to reasonable and customary directors' fees, indemnification and
similar arrangements and payments thereunder, or to any obligations of
the Company under the Financial Monitoring and Oversight Agreements,
the Tax Sharing Agreement or any employment agreement with any officer
of the Company (provided that each amendment of any of the foregoing
agreements shall be subject to the limitations of this Section 4.11),
as well as reasonable and customary investment banking, financial
advisory, commercial banking and similar fees and expenses paid to BT
Securities Corporation and its Affiliates.
SECTION 4.12 Limitation on Incurrence of Additional
Indebtedness.
--------------------------------------
Neither the Company nor any of its Subsidiaries will,
directly or indirectly, create, incur, assume, guarantee, acquire or
become liable for, contingently or otherwise, (collectively "incur")
any Indebtedness other than Permitted Indebtedness. Notwithstanding
the foregoing limitations, the Company or any Subsidiary may incur
Indebtedness if on the date of the incurrence of such Indebtedness,
after giving effect to the incurrence of such Indebtedness and the
receipt and application of the proceeds thereof, the Company's
Leverage Ratio is less than 7.0 to 1.
SECTION 4.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
----------------------------------------
Neither the Company nor any of its Subsidiaries will,
directly or indirectly, create or otherwise cause or permit to exist
or become effective any encumbrance or restriction on the ability of
any Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock; (b) make loans or advances or pay any Indebtedness
or other obligation owed to the Company or any of its Subsidiaries; or
(c) transfer any of its property or assets to the Company, except for
such encumbrances or restrictions existing under or by reason of:
(1) applicable law, (2) this Indenture, (3) customary non-assignment
provisions of any lease governing a leasehold interest of the Company
or any Subsidiary, (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, (5) agree
--
ments existing on the Issue Date (including the Credit Agreement) as
such agreements are from time to time in effect; provided, however,
-------- -------
that any amendments or modifications of such agreements which affect
the encumbrances or restrictions of the types subject to this
Section 4.13 shall not result in such encumbrances or restrictions
being less favorable to the Company in any material respect, as
determined in good faith by the Board of Directors of the Company,
than the provisions as in effect before giving effect to the
respective amendment or modification, (6) an agreement effecting a
refinancing, replacement or substitution of Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in
clause (2), (4) or (5) above or any other agreement evidencing
Indebtedness permitted under this Indenture; provided, however, that
-------- -------
the provisions relating to such encumbrance or restriction contained
in any such refinancing, replacement or substitution agreement or any
such other agreement are not less favorable to the Company in any
material respect as determined in good faith by the Board of Directors
of the Company than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such clause (2),
(4) or (5), or (7) restrictions on the transfer of assets subject to
any Lien imposed by the holder of such Lien.
SECTION 4.14 Change of Control.
-----------------
(a) In the event of a Change of Control, the Company shall
be obligated to make an offer to repurchase all outstanding Securities
pursuant to the offer described in paragraph (b) below (the "Change of
Control Offer"), at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of
repurchase. Prior to the mailing of the notice referred to below, but
in any event within 30 days following the date on which a Change of
Control occurs, the Company covenants to (i) repay in full all
Indebtedness under the Credit Agreement (and terminate all commitments
thereunder), the Existing Notes, the Notes and any other Indebtedness
that would prohibit the Change of Control Offer or offer to repay in
full all such Indebtedness (and terminate all such commitments) and to
repay the Indebtedness owed to (and terminate the commitments of) each
lender which has accepted such offer or (ii) obtain the requisite
consents under the Credit Agreement, the Existing Indenture, the Note
Indenture and any agreement governing such other Indebtedness to
permit the repurchase of the Securities as provided below. The
Company shall first comply with the covenant in the preceding sentence
before it shall be required to repurchase Securities pursuant to the
provisions described in this Section 4.14; provided that the Company's
--------
failure to comply
--
with such covenant shall constitute an Event of Default under Section
6.01(3).
(b) Within 30 days following the date upon which a Change
of Control occurs (the "Change of Control Date"), the Company shall
send, by first class mail, a notice to each Holder of Securities, with
a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender
Securities pursuant to the Change of Control Offer. Such notice shall
state:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.14 and that all Securities validly tendered
and not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no
earlier than 30 days nor later than 45 days from the date such
notice is mailed, other than as may be required by law) (the
"Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to
surrender the Security, properly endorsed for transfer together
with such customary documents as the Company reasonably may
request, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior
to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities
the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security
purchased;
--
(7) that Holders whose Securities are purchased only in
part will be issued new Securities in a principal amount equal to
the unpurchased portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such
Change of Control.
(c) On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions thereof
(in integral multiples of $1,000) validly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price of all Securities so
tendered and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Securities so accepted payment
in an amount equal to the purchase price out of the funds deposited
with the Paying Agent in accordance with the preceding sentence. The
Trustee shall promptly authenticate and mail to such Holders new
Securities equal in principal amount to any unpurchased portion of the
Securities surrendered. Upon the payment of the purchase price for
the Securities accepted for purchase, the Trustee shall return the
Securities purchased to the Company for cancellation. Any amounts
remaining after the purchase of Securities pursuant to a Change of
Control Offer shall be returned by the Trustee to the Company.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of the Securities pursuant
to a Change of Control Offer. To the extent the provisions of any
such rule conflict with the provisions of this Indenture relating to a
Change of Control Offer, the Company shall comply with the provisions
of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
(e) Paragraphs (a)-(d) of this Section 4.14
notwithstanding, the Company shall not be required to make a Change of
Control Offer if, instead, the Company elects to effect a Change of
Control Redemption in compliance with Article 3 hereof.
--
SECTION 4.15 Limitation on Asset Sales.
-------------------------
(a) Neither the Company nor any of its Subsidiaries will
consummate an Asset Sale unless (i) the Company or the applicable
Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets
sold or otherwise disposed of (as determined in good faith by
management of the Company or, if such Asset Sale involves
consideration in excess of $2,500,000, by the Board of Directors of
the Company, as evidenced by a board resolution), (ii) at least 75% of
the consideration received by the Company or the Subsidiary, as the
case may be, from such Asset Sale is cash or Cash Equivalents (other
than in the case where the Company is exchanging all or substantially
all the assets of one or more broadcast businesses operated by the
Company (including by way of the transfer of the capital stock) for
all or substantially all the assets (including by way of the transfer
of the capital stock) constituting one or more broadcast businesses
operated by another Person, in which event the foregoing requirement
with respect to the receipt of cash or Cash Equivalents shall not
apply) and is received at the time of such disposition and (iii) upon
the consummation of an Asset Sale, the Company applies or causes such
Subsidiary to apply, such Net Cash Proceeds within 180 days of receipt
thereof, either (A) to repay the principal of any Senior Indebtedness
(and, to the extent such Senior Indebtedness relates to principal
under a revolving credit or similar facility, to obtain a
corresponding reduction in the commitments thereunder), (B) to
reinvest, or to be contractually committed to reinvest pursuant to a
binding agreement, in Productive Assets and, in the latter case, to
have so reinvested within 360 days of the date of receipt of such Net
Cash Proceeds, or (C) to purchase Securities tendered to the Company
for purchase at a price equal to 100% of the principal amount thereof,
plus accrued interest thereon to the date of purchase, pursuant to an
offer to purchase made by the Company as set forth below (a "Net
Proceeds Offer"); provided, however, that, prior to making any such
-------- -------
Net Proceeds Offer the Company may, to the extent required pursuant to
the Note Indenture and the Existing Indenture, in each case, as in
effect on the Issue Date, offer to use such Net Cash Proceeds to
repurchase and use all or a portion of such Net Cash Proceeds to
repurchase Notes and/or Existing Notes and any other Senior Debt of
the Company incurred after the Issue Date containing a provision
similar to this Section 4.15, in which event the Company shall be
required to use only the Net Cash Proceeds remaining after such other
repurchases to make the Net Proceeds Offer contemplated by this
Section 4.15; provided, further, that if at any time any non-cash
-------- -------
consideration received by the Company or any Subsidiary of the
Company, as the case may
--
be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash
Proceeds thereof shall be applied in accordance with clause (iii)
above; provided, further, that the Company may defer making a Net
-------- -------
Proceeds Offer until the aggregate Net Cash Proceeds from Asset Sales
(taking into account any Net Cash Proceeds used to repurchase Notes or
Existing Notes or other Senior Indebtedness pursuant to the second
immediately preceeding proviso) to be applied equals or exceeds
$5,000,000. In the event of a transaction effected in accordance with
Section 5.01 which involves less than all of the property or assets of
the Company, only property or assets not included in such transaction
shall be deemed to have been transferred in an Asset Sale.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds Offer pursuant
to this Section 4.15 shall be mailed, by first class mail, by the
Company to Holders of the Securities as shown on the applicable
register of Holders of the Securities not more than 180 days after the
relevant Asset Sale or, in the event the Company or a Subsidiary has
entered into a binding agreement as provided in (B) above, within 180
days following the termination of such agreement but in no event later
than 360 days after the relevant Asset Sale, with a copy to the
Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.15 and that Holders of Securities may elect to tender
their Securities in denominations of less than $1,000 or other
Securities, in whole or in part, in integral multiples of $1,000
and that all Securities validly tendered will be accepted for
payment; provided, however, that if the aggregate principal
-------- -------
amount of Securities tendered in a Net Proceeds Offer plus
accrued interest at the expiration of such offer exceeds the
aggregate amount of the Net Proceeds Offer, the Company shall
select the Securities to be purchased on a pro rata basis (based
upon the principal amount tendered); provided, further, that the
-------- -------
Company may first select Securities in denominations of less than
$1,000 prior to making the pro rata selection referred to in the
preceeding proviso;
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than
30 days nor later than 45 days from the date
--
such notice is mailed, other than as may be required by law) (the
"Proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender
the Security, properly endorsed for transfer together with such
other customary documents as the Company reasonably may request,
to the Paying Agent at the address specified in the notice prior
to the close of business on the Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Proceeds Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in
part will be issued new Securities in a principal amount equal to
the unpurchased portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Net
Proceeds Offer.
(c) On or before the Proceeds Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof validly
tendered pursuant to the Net Proceeds Offer, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price of
all Securities so tendered and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company.
The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price out of funds
deposited with the Paying Agent in accordance with the preceding
sentence. The Trustee shall promptly authenticate and mail to such
Holders new
--
Securities equal in principal amount to any unpurchased portion of the
Securities surrendered. Upon payment of the purchase price for the
Securities accepted for purchase, the Trustee shall return the
Securities purchased to the Company for cancellation. Any Securities
not so accepted shall be promptly mailed by the Company to the Holder
thereof.
(d) If the aggregate principal amount of Securities validly
tendered pursuant to any Net Proceeds Offer is less than the amount of
Net Cash Proceeds subject to such Net Proceeds Offer, the Company may
use any remaining portion of such Net Cash Proceeds not required to
fund the repurchase of tendered Securities for purposes otherwise
permitted by this Indenture. Upon the consummation of any Net
Proceeds Offer, the amount of Net Cash Proceeds subject to any future
Net Proceeds Offer from the Asset Sales giving rise to such Net Cash
Proceeds shall be deemed to be zero.
(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with their purchase of Securities pursuant to
a Net Proceeds Offer. To the extent the provisions of any such rule
conflict with the provisions of this Indenture relating to a Net
Proceeds Offer, the Company shall comply with the provisions of such
rule and be deemed not to have breached its obligations relating to
such Net Proceeds Offer by virtue thereof.
SECTION 4.16 Limitation on Preferred Stock of
Subsidiaries.
--------------------------------
The Company will not permit any of its Subsidiaries to issue
any Preferred Stock (other than to the Company or to a Wholly Owned
Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Subsidiary of the Company) to own any such
Preferred Stock (other than Acquired Preferred Stock; provided that
--------
at the time the issuer of such Acquired Preferred Stock becomes a
Subsidiary of the Company or merges with the Company or any of its
Subsidiaries, and after giving effect to such transaction, the Company
shall be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12 hereof).
--
SECTION 4.17 Limitation on Asset Swaps.
-------------------------
Neither the Company nor any of its Subsidiaries shall engage
in any Asset Swaps, unless: (i) at the time of entering into the
agreement to swap assets and immediately after giving effect to the
proposed Asset Swap, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof;
(ii) the Company would, after giving pro forma effect to the proposed
Asset Swap, have been permitted to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof; (iii) the respective fair market values of the
assets being purchased and sold by the Company or any of its
Subsidiaries (as determined in good faith by the management of the
Company or, if such Asset Swap includes consideration in excess of
$2,500,000 by the Board of Directors, as evidenced by a Board
Resolution delivered to the Trustee) are substantially the same at the
time of entering into the agreement to swap assets; and (iv) at the
time of the consummation of the proposed Asset Swap, the percentage of
any decline in the fair market value (determined as aforesaid) of the
asset or assets being acquired by the Company and its Subsidiaries
shall not be significantly greater than the percentage of any decline
in the fair market value (determined as aforesaid) of the assets being
disposed of by the Company, calculated from the time the agreement to
swap assets was entered into.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge, Etc.
---------------------------
(a) The Company shall not, in a single transaction or
through a series of related transactions, consolidate with or merge
with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets to, another Person
or adopt a plan of liquidation, unless:
(1) either (A) the Company shall be the survivor of such
merger or consolidation or (B) the surviving or transferee Person
is a corporation, partnership or trust organized and existing
under the laws of the United States, any State thereof or the
District of Columbia and such surviving or transferee Person
shall expressly assume by supplemental indenture all the
obligations of the Company under the Securities and this
Indenture;
--
(2) immediately after giving effect to such transaction and
the use of the proceeds therefrom (on a pro forma basis,
including any Indebtedness incurred or anticipated to be incurred
in connection with such transaction), the Company or the
surviving or transferee Person is able to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12;
(3) immediately after giving effect to such transaction
(including any Indebtedness incurred or anticipated to be
incurred in connection with the transaction) no Default or Event
of Default shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture,
that the surviving or transferee Person agrees by supplemental
indenture to be bound hereby, and that all conditions precedent
in this Indenture relating to such transaction have been
satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
related transactions) of all or substantially all of the properties
and assets of one or more Subsidiaries, the Capital Stock of which
constitutes all or substantially all of the properties and assets of
the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 5.02 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any transfer of assets
in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the
Company herein. When a successor corporation assumes all of the
obligations of the Company hereunder and under the Securities and
agrees to be bound hereby and thereby, the predecessor shall be
released from such obligations.
--
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the Default
continues for a period of 30 days (whether or not such payment
shall be prohibited by Article Ten); or
(2) the Company defaults in the payment of the principal of
any Securities when the same becomes due and payable, at
maturity, upon redemption or otherwise (whether or not such
payment shall be prohibited by Article Ten); or
(3) the Company fails to observe or perform any other
covenant or agreement contained in the Securities or this
Indenture and the Default continues for a period of 30 days after
written notice thereof specifying such Default has been given to
the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Securities; or
(4) there shall be a failure to pay at the final stated
maturity (giving effect to any extensions thereof) the principal
amount of any Indebtedness of the Company or any Subsidiary of
the Company, or the acceleration of the final stated maturity
(giving effect to any extensions thereof) of any such
Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any
other such Indebtedness in default for failure to pay principal
at the final stated maturity (giving effect to any extensions
thereof) or which has been accelerated, aggregates $5,000,000 or
more at any time, in each case after a 10-day period during which
such default shall not have been cured or such acceleration
rescinded; or
(5) one or more judgments in an aggregate amount in excess
of $5,000,000 (which are not covered by insurance as to which the
insurer has not disclaimed coverage) shall have been rendered
against the Company or any of its Significant Subsidiaries and
such judgments remain undischarged or unstayed for a period of 60
days after such judgment or judgments become final and
non-appealable; or
--
(6) the Company or any Significant Subsidiary (A) commences
a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (B) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to the
appointment of a Custodian of it or for substantially all of its
property, (D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it or (E) makes a
general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under
any Bankruptcy Law, which shall (A) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or any Significant
Subsidiary, (B) appoint a Custodian of the Company or any
Significant Subsidiary or for substantially all of its property
or (C) order the winding-up or liquidation of its affairs; and
such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days.
SECTION 6.02 Acceleration.
------------
If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7) with respect to the Company)
occurs and is continuing and has not been waived pursuant to
Section 6.04, the Trustee may, by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the
Securities then outstanding may, by written notice to the Company and
the Trustee, and the Trustee shall, upon the request of such Holders,
declare the aggregate principal amount of the Securities outstanding,
together with accrued but unpaid interest, if any, on all Securities
to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the same
(i) shall become immediately due and payable or (ii) if there are any
amounts outstanding under the Credit Agreement, shall become due and
payable upon the first to occur of an acceleration under the Credit
Agreement or 5 Business Days after receipt by the Company and the
Representative under the Credit Agreement of such Acceleration Notice
(unless all Events of Default specified in such Acceleration Notice
have been cured or waived). If an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company occurs and is
continuing with respect to the Company, all unpaid principal and
--
accrued interest on the Securities then outstanding shall ipso facto
---- -----
become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholder. The
Holders of a majority in principal amount of the Securities then
outstanding (by notice to the Trustee) may rescind and cancel a
declaration of acceleration and its consequences if (i) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction, (ii) all existing Events of Default have been cured or
waived, except non-payment of the principal or interest on the
Securities which have become due solely by such declaration of
acceleration, (iii) to the extent the payment of such interest is
lawful, interest (at the same rate as specified in the Securities) on
overdue installments of interest and overdue payments of principal,
which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver
of a Default or Event of Default of the type described in Sections
6.01(6) and (7), the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Default or Event of
Default has been cured or waived and the Trustee shall be entitled to
conclusively rely upon such Officer's Certificate and Opinion of
Counsel. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03 Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent
permitted by law.
SECTION 6.04 Waiver of Past Defaults.
-----------------------
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the outstanding Securities by
--
notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of
principal of or interest on any Security as specified in clauses (1)
and (2) of Section 6.01.
SECTION 6.05 Control by Majority.
-------------------
The Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it, including, without
limitation, any remedies provided for in Section 6.03. Subject to
Section 7.01, however, the Trustee may, in its discretion, refuse to
follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed
--------
proper by the Trustee, in its discretion, which is not inconsistent
with such direction.
SECTION 6.06 Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holders offer to the Trustee reasonably
satisfactory to the Trustee indemnity or security against any
loss, liability or expense to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of satisfactory
indemnity or security; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the
Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
--
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority
over such other Securityholder.
SECTION 6.07 Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on
a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor
on the Securities for the whole amount of principal and accrued
interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest at the rate set forth in the
Securities and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in
any judicial proceedings relating to the Company or any other obligor
upon the Securities, any of their respective creditors or any of their
respective property, and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such
judicial proceedings is hereby authorized by each Securityholder to
make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances
of the Trustee, its agents and counsel, and any
--
other amounts due the Trustee under Section 7.07. The Company's
payment obligations under this Section 6.09 shall be secured in
accordance with the provisions of Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.10 Priorities.
----------
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Sections 6.09
and 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities for principal and interest,
respectively; and
Fourth: to the Company or any other obligor on the
Securities, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Securityholders
pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, 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 a Holder or Holders of more
than 10% in principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and
skill in its exercise thereof as a prudent Person would exercise or
use under the circumstances in the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event
of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no
duties, covenants, responsibilities or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
(including Officers' Certificates) or opinions (including
Opinions of Counsel) furnished to the Trustee and conforming to
the requirements of this Indenture. However, as to any
certificates or opinions which are required by any provision of
this Indenture to be delivered or provided to the Trustee, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
--
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.02, 6.04 or
6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d)
of this Section 7.01.
(f) The Trustee shall not be liable for interest on any
money or assets received by it except as the Trustee may agree with
the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
(g) In the absence of bad faith, negligence or wilful
misconduct on the part of the Trustee, the Trustee shall not be
responsible for the application of any money by any Paying Agent other
than the Trustee.
SECTION 7.02 Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or
an Opinion of Counsel, which shall conform to Sections 11.04 and
11.05. The Trustee shall not be liable for and shall be fully
protected in respect of any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
--
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate (including any Officers' Certificate), statement,
instrument, opinion (including any Opinion of Counsel), notice,
request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders of the
Securities pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred by it in compliance with such request,
order or direction.
(g) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete
authorization and protection from liability with respect to any
action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
SECTION 7.03 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with
the Company, any Subsidiary or Unrestricted Subsidiary, or their
respective Affiliates, with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and
--
7.11.
SECTION 7.04 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, and it shall not be
accountable for the Company's use of the proceeds from the Securities,
and it shall not be responsible for any statement of the Company in
this Indenture or the Securities other than the Trustee's certificate
of authentication.
SECTION 7.05 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the uncured Default or Event of Default
within 60 days after such Default or Event of Default occurs. Except
in the case of a Default or an Event of Default in payment of
principal of, or interest on, any Security, including an accelerated
payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds
Purchase Date pursuant to a Net Proceeds Offer and, except in the case
of a failure to comply with Article Five, the Trustee may withhold the
notice if and so long as its Board of Directors, the executive
committee of its Board of Directors or a committee of its directors
and/or Trust Officers in good faith determines that withholding the
notice is in the interest of the Security holders. The Trustee shall
not be deemed to have knowledge of a Default or Event of Default other
than (i) any Event of Default occurring pursuant to Section 6.01(1),
6.01(2) or 4.01; or (ii) any Default or Event of Default of which a
Trust Officer shall have received written notification or obtained
actual knowledge.
SECTION 7.06 Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15 of each year beginning with
May 15, 1997, the Trustee shall, to the extent that any of the events
described in TIA section 313(a) occurred within the previous twelve
months, but not otherwise, mail to each Securityholder a brief report
dated as of such date that complies with TIA section 313(a). The
Trustee also shall comply with TIA sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC
and each stock exchange, if any, on which the Securities are listed.
--
The Company shall promptly notify the Trustee if the
Securities become listed on any stock exchange and the Trustee shall
comply with TIA section 313(d).
SECTION 7.07 Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon by the Company and the Trustee.
The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by it in
connection with the performance of its duties and the discharge of its
obligations under this Indenture. Such expenses shall include the
reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them
harmless against, any loss, liability or expense incurred by them
except for such actions to the extent caused by any negligence, bad
faith or willful misconduct on their part, arising out of or in
connection with the acceptance or administration of this trust
including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the
--------
Company will not be required to pay such fees and expenses if it
assumes the Trustee's defense and there is no conflict of interest
between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for
any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to
the extent incurred by the Trustee through its negligence, bad faith
or willful misconduct.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Securities on
all assets or money held or collected by the Trustee, in its capacity
as Trustee, except assets or money held in trust to pay principal of
or interest on particular Securities.
--
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(6) or (7) occurs, such
expenses and the compensation for such services shall be paid to the
extent allowed under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the
Trustee and may appoint a successor trustee. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall notify each
Holder of such event and shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the
Company.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Promptly
after that, the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided
in Section 7.07, 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. A
successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in principal
amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
--
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust business
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting,
surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee; provided that such corporation shall be
--------
otherwise qualified and eligible under this Article Seven.
SECTION 7.10 Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA sections 310(a)(1) and 310(a)(2). The Trustee (or
in the case of a corporation included in a bank holding company system,
the related bank holding company) shall have a combined capital and
surplus of at least $200,000,000 as set forth in its most recent
published annual report of condition. In addition, if the Trustee is
a corporation included in a bank holding company system, the Trustee,
independently of such bank holding company, shall meet the capital
requirements of TIA section 310(a)(2). The Trustee shall comply with
TIA section 310(b); provided, however, that there shall be excluded
from the -------- -------
operation of TIA section 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation
in other securities, of the Company are outstanding, if the require-
ments for such exclusion set forth in TIA section 310(b)(1) are met.
The provisions of TIA section 310 shall apply to the Company and any
other obligor of the Securities.
SECTION 7.11 Preferential Collection of
Claims Against the Company
--------------------------
The Trustee shall comply with TIA section 311(a), excluding
any creditor relationship listed in TIA section 311(b). A Trustee
who has resigned or been removed shall be subject to TIA section
311(a) to the extent indicated therein. The provisions of TIA section
311 shall apply to the Company and any other obligor of the Securities.
--
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Termination of the Company's Obligations.
----------------------------------------
This Indenture shall cease to be of further effect and the
obligations of the Company under the Securities and this Indenture
shall terminate (except that the obligations under Sections 7.07, 8.04
and 8.05 shall survive the effect of this Article Eight) when all
outstanding Securities theretofore authenticated and issued have been
delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder.
In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged from any and all obligations
with respect to the Securities (except for certain obligations of the
Company to register the transfer or exchange of such Securities,
replace stolen, lost or mutilated Securities, maintain paying agencies
and hold moneys for payment in trust) after the applicable conditions
set forth below have been satisfied or (b) the Company shall cease to
be under any obligation to comply with any term, provision or
condition set forth in Article Four (except that the Company's
obligations under Sections 4.01 and 4.02 shall survive) and Section
5.01 after the applicable conditions set forth below have been
satisfied:
(1) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities U.S. Legal Tender or
U.S. Government Obligations or a combination thereof which,
through the payment of interest thereon and principal in respect
thereof in accordance with their terms, will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay all the principal of and
interest on the Securities on the dates such installments of
interest or principal are due in accordance with the terms of
such Securities, as well as the Trustee's fees and expenses;
provided that no deposits made pursuant to this Section 8.01(1)
--------
shall cause the Trustee to have a conflicting interest as defined
in and for purposes of the TIA; provided, further, that from and
after the time of deposit, the Funds deposited shall not be
--
subject to the rights of holders of Senior Indebtedness pursuant
to the provisions of Article Ten; and provided, further, that, as
-------- -------
confirmed by an Opinion of Counsel, no such deposit shall result
in the Company, the Trustee or the trust becoming or being
deemed to be an "investment company" under the Investment Company
Act of 1940;
(2) The Company shall have delivered to the Trustee an
Opinion of Counsel or a private letter ruling issued to the
Company by the IRS to the effect that the Holders of the
Securities will not recognize income, gain or loss for federal
income tax purposes as a result of the deposit and related
defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such option had not been exercised and, in the
case of an Opinion of Counsel furnished in connection with a
Discharge pursuant to the foregoing, accompanied by a private
letter ruling issued to the Company by the IRS to such effect;
(3) No Event of Default or Default with respect to the
Securities shall have occurred and be continuing on the date of
such deposit after giving effect to such deposit;
(4) The Company shall have delivered to the Trustee an
Opinion of Counsel, subject to certain qualifications, to the
effect that (i) the Funds will not be subject to any rights of
any other holders of Indebtedness of the Company, and (ii) the
Funds so deposited will not be subject to avoidance under
applicable Bankruptcy Law;
(5) The Company shall have paid or duly provided for
payment of all amounts then due to the Trustee pursuant to
Section 7.07;
(6) No such deposit will result in a Default under this
Indenture or a breach or violation of, or constitute a default
under, any other instrument or agreement (including, without
limitation, the Credit Agreement, the Note Indenture and the
Existing Indenture) to which the Company or any of its
Subsidiaries is a party or by which it or its property is bound;
and
(7) An Officers' Certificate and an Opinion of Counsel to
the effect that all conditions precedent to the defeasance have
been complied with.
--
Notwithstanding the foregoing, the Opinion of Counsel
required by subparagraph 2 above need not be delivered if all
Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, (ii) will become due and payable on
the Maturity Date within one year, or (iii) are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the Securities and to have satisfied all the
obligations under this Indenture relating to the Securities (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same upon compliance by the Company with
the provisions of this Section), except (i) the rights of the Holders
of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on such Securities
when such payments are due, (ii) the Company's obligations with
respect to the Securities under Sections 2.03 through 2.07, 7.07 and
7.08 and (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder.
"Funds" means the aggregate amount of U.S. Legal Tender
and/or U.S. Government Obligations deposited with the Trustee pursuant
to this Article Eight.
"U.S. Government Obligations" means direct obligations of,
and obligations guaranteed by, the United States of America for the
payment of which the full faith and credit of the United States of
America is pledged.
SECTION 8.02 Acknowledgment of Discharge by Trustee.
--------------------------------------
Subject to Section 8.05, after (i) the conditions of Section
8.01, have been satisfied and (ii) the Company has delivered to the
Trustee an Opinion of Counsel, stating that all conditions precedent
referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon
written request of the Company shall acknowledge in writing the
discharge of the Company's obligations under this Indenture except for
those surviving obligations specified in this Article Eight.S
--
SECTION 8.03 Application of Trust Money.
--------------------------
The Trustee shall hold in trust Funds deposited with it
pursuant to Section 8.01. It shall apply the Funds through the Paying
Agent and in accordance with this Indenture to the payment of
principal and accrued and unpaid interest on the Securities.
SECTION 8.04 Repayment to the Company.
------------------------
The Trustee and the Paying Agent shall promptly pay to the
Company any Funds held by them for the payment of principal or
interest that remains unclaimed for one year; provided, however, that
-------- -------
the Trustee or such Paying Agent may, at the expense of the Company,
cause to be published once in a newspaper of general circulation in
the City of New York or mailed to each Holder, notice that such Funds
remain unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing,
any unclaimed balance of such Funds then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to the
Funds must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another Person and all
liability of the Trustee and Paying Agent with respect to such Funds
shall cease.
SECTION 8.05 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any Funds
by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01
until such time as the Trustee or Paying Agent is permitted to apply
all such Funds in accordance with Section 8.01; provided, however,
-------- -------
that if the Company has made any payment of interest on or principal
of any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from Funds held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.
--------------------------
--
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the
Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not adversely
--------
affect the rights of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; or
(4) to make any other change that does not adversely affect
in any material respect the rights of any Securityholders
hereunder;
provided that the Company has delivered to the Trustee an Opinion of
--------
Counsel and an Officers' Certificate, each stating that such amendment
or supplement complies with the provisions of this Section 9.01.
SECTION 9.02 With Consent of Holders.
-----------------------
Subject to Section 6.07, the Company, when authorized by a
Board Resolution, and the Trustee, together, with the written consent
of the Holder or Holders of at least a majority in principal amount of
the outstanding Securities may amend or supplement this Indenture or
the Securities, without notice to any other Securityholders. Subject
to Sections 6.04 and 6.07, the Holder or Holders of a majority in
aggregate principal amount of the outstanding Securities may waive
compliance by the Company with any provision of this Indenture or the
Securities without notice to any other Securityholder. No amendment,
supplement or waiver, including a waiver pursuant to Section 6.04,
shall, directly or indirectly, without the consent of each Holder of
each Security affected thereby:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or change the time for payment of
interest (including any extension of the date on which payment of
interest must be made in cash), including defaulted interest, on
any Securities;
--
(3) reduce the principal of or change the fixed maturity of
any Securities, or change the date on which any Securities may be
subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor;
(4) make any Securities payable in money other than that
stated in the Securities;
(5) make any change in provisions of this Indenture
protecting the right of each Holder of a Security to receive
payment of principal of and interest on such Security on or after
the due date thereof or to bring suit to enforce such payment or
permitting Holders of a majority in principal amount of
Securities to waive Defaults or Events of Default; or
(6) after the Company's obligation to purchase the
Securities arises under Section 4.14 or 4.15, amend, modify or
change the obligation of the Company to consummate a Change of
Control Offer or a Net Proceeds Offer or waive any default in the
performance thereof or modify any of the provisions or
definitions with respect to any such offers.
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, supplement 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 (as provided in Section 9.04), the Company
shall mail to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.03 Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or
the Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective,
a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on
--
any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion
of his Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver (at which time such amendment,
supplement or waiver shall become effective).
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver, which record date shall be at
least 30 days prior to the first solicitation of such consent. If a
record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120
days after such record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Securityholder, unless it makes a change described
in any of clauses (1) through (6) of Section 9.02, in which case, the
amendment, supplement or waiver shall bind only each Holder of a
Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder's Security; provided that any such waiver shall not
--------
impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 9.05 Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
--
SECTION 9.06 Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or
waiver authorized pursuant to and adopted in accordance with this
Article Nine; provided that the Trustee may, but shall not be
--------
obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article
Nine is authorized or permitted by this Indenture. Such Opinion of
Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01 Securities Subordinated to Senior Indebtedness.
----------------------------------------------
The Company covenants and agrees and the Trustee and each
Holder of the Securities, by its acceptance thereof, likewise
covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article Ten; and the Trustee and each Person
holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the payment of
all Obligations on the Securities (except for the payment of fees and
expenses of the Trustee and any indemnity under Section 7.07) by the
Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in
full in cash or Cash Equivalents (or such payment shall be duly
provided for to the satisfaction of the holders of the Senior
Indebtedness) of all Obligations on the Senior Indebtedness; that the
subordination is for the benefit of, and shall be enforceable directly
by, the holders of Senior Indebtedness, and that each holder of Senior
Indebtedness whether now outstanding or hereafter created, incurred,
assumed or guaranteed shall be deemed to have acquired Senior
Indebtedness in reliance upon the covenants and provisions contained
in this Indenture and the Securities.
SECTION 10.02 No Payment on Securities in Certain
Circumstances.
-----------------------------------
(a) If any default occurs and is continuing in the
--
payment when due, whether at maturity, upon any redemption, by
declaration or otherwise, of any principal of, interest on or any
other amounts owing with respect to any Senior Indebtedness, no
payment of any kind or character (except (i) in Qualified Capital
Stock issued by the Company to pay interest on the Securities or
issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company in
payment of interest accrued thereon or (iii) in securities issued by
the Company which are subordinated to the Senior Indebtedness at least
to the same extent as the Securities and having a Weighted Average
Life to Maturity at least equal to the remaining Weighted Average Life
to Maturity of the Securities (the issuance of such subordinated
securities to be consented to by the holders of at least a majority of
the outstanding amount of Senior Indebtedness consisting of each class
of Designated Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or
to pay interest accrued on outstanding Securities)) shall be made by
the Company or any other Person on behalf of the Company with respect
to any Obligations on the Securities or to acquire any of the
Securities for cash or property or otherwise. In addition, if any
other event of default occurs and is continuing (or if such an event
of default would occur upon any payment with respect to the Securities
or would arise upon the passage of time as a result of such payment)
with respect to any Designated Senior Indebtedness (as such event of
default is defined in the instrument creating or evidencing such
Designated Senior Indebtedness) and such event of default permits the
holders of such Designated Senior Indebtedness then outstanding to
accelerate the maturity thereof and if the Representative for the
respective issue of Designated Senior Indebtedness gives written
notice of the event of default to the Company and the Trustee (a
"Default Notice"), then, unless and until all events of default have
been cured or waived or have ceased to exist or the Company and the
Trustee receive notice from the Representative for the respective
issue of Designated Senior Indebtedness terminating the Blockage
Period (as defined below), during the 180 days after the delivery of
such Default Notice (the "Blockage Period"), neither the Company nor
any other Person on behalf of the Company shall make any payment of
any kind or character (except (i) in Qualified Capital Stock issued by
the Company to pay interest on the Securities or issued in exchange
for the Securities, (ii) in securities substantially identical to the
Securities issued by the Company in payment of interest accrued
thereon or (iii) in securities issued by the Company which are
subordinated to the Senior Indebtedness at least to the same extent as
the Securities and having a Weighted Average Life to Maturity at least
equal to the remaining Weighted Average Life to Maturity of the
Securities
--
(the issuance of such subordinated securities to be consented to by
the holders of at least a majority of the outstanding amount of Senior
Indebtedness consisting of each class of Designated Senior
Indebtedness then outstanding, which subordinated securities shall be
issued in exchange for outstanding Securities or to pay interest
accrued on outstanding Securities)) with respect to any Obligations on
the Securities or to acquire any of the Securities for cash or
property or otherwise. Notwithstanding anything herein to the
contrary, in no event will a Blockage Period extend beyond 180 days
from the date the payment on the Securities was due and only one such
Blockage Period may be commenced within any 360 consecutive days. For
all purposes of this Section 10.02(a), no event of default which
existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Senior Indebtedness
initiating such Blockage Period shall be, or be made, the basis for
the commencement of a second Blockage Period by the Representative of
such Designated Senior Indebtedness, whether or not within a period of
360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any
financial covenants for a period commencing after the date of
commencement of such Blockage Period that, in either case, would give
rise to an event of default pursuant to any provision under which an
event of default previously existed or was continuing shall constitute
a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such
payment is prohibited by Section 10.02(a), such payment shall be held
in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amount of Senior Indebtedness held by such
holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Senior
Indebtedness, if any, received from the holders of Senior Indebtedness
(or their Representatives) or, if such information is not received
from such holders or their Representatives, from the Company and only
amounts included in the information provided to the Trustee shall be
paid to the holders of Senior Indebtedness.
Nothing contained in this Article Ten shall limit the right
of the Trustee or the Holders of Securities to take any action to
accelerate the maturity of the Securities pursuant to Section 6.02 or
to pursue any rights or remedies hereunder;
--
provided that all Senior Indebtedness thereafter due or declared to be
--------
due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment with respect to
Obligations on the Securities.
SECTION 10.03 Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
(c) Upon any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors
or marshalling of assets of the Company or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding
relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior
Indebtedness shall first be paid in full in cash or Cash Equivalents,
or such payment duly provided for to the satisfaction of the holders
of the Senior Indebtedness, before any payment or distribution of any
kind or character is made on account of any Obligations on the
Securities, or for the acquisition of any of the Securities for cash
or property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee under this Indenture would be
entitled (other than any payments of fees and expenses of the Trustee
and any indemnity made under Section 7.07), except for the provisions
hereof, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders of the Securities or by the
Trustee under this Indenture if received by them, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis
of the respective amounts of Senior Indebtedness held by such holders)
or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, for
application to the payment of Senior Indebtedness remaining unpaid
until all such Senior Indebtedness has been paid in full in cash or
Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior
Indebtedness.
(d) To the extent any payment of Senior Indebtedness
(whether by or on behalf of the Company, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be
--
paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such
payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person, the
Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred.
(e) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by any Holder when such payment or distribution is prohibited by
Section 10.03(a), such payment or distribution shall be held in trust
for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (pro rata to such holders on the basis
of the respective amount of Senior Indebtedness held by such holders)
or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, for
application to the payment of Senior Indebtedness remaining unpaid
until all such Senior Indebtedness has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such
Senior Indebtedness.
(f) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of all
or substantially all of its assets, to another corporation upon the
terms and conditions provided in Article Five and as long as permitted
under the terms of the Senior Indebtedness shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the
purposes of this Section if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article Five.
SECTION 10.04 Payments May Be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions
described in Sections 10.02 and 10.03, from making payments at any
time for the purpose of making payments of principal of and interest
on the Securities, or from depositing with the Trustee any moneys for
such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment
--
would be prohibited by Section 10.02 or 10.03, the application by the
Trustee of any moneys deposited with it for the purpose of making such
payments of principal of, and interest on, the Securities to the
Holders entitled thereto unless at least one Business Day prior to the
date upon which such payment would otherwise become due and payable,
the Trustee shall have received the written notice provided for in
Section 10.02(a) or in Section 10.07. The Company shall give prompt
written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
SECTION 10.05 Subrogation.
-----------
Subject to the payment in full in cash or Cash Equivalents
of all Senior Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of
the Company applicable to the Senior Indebtedness until the Securities
shall be paid in full; and, for the purposes of such subrogation, no
such payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Company or by or on behalf of the
Holders by virtue of this Article Ten which otherwise would have been
made to the Holders shall, as between the Company and the Holders of
the Securities, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness, it being understood that the
provisions of this Article Ten are and are intended solely for the
purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 10.06 Obligations of the Company Unconditional.
----------------------------------------
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of and any interest on the Securities as
and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of
the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of the
--
Company received upon the exercise of any such remedy.
SECTION 10.07 Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article Ten. Regardless of anything to the
contrary contained in this Article Ten or elsewhere in this Indenture,
the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior
Indebtedness or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until the Trust Officer of
the Trustee shall have received notice in writing from the Company, or
from a holder of Senior Indebtedness or a Representative therefor,
and, prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Ten, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amounts of Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of
such Person under this Article Ten, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 10.08 Reliance on Judicial Order or Certificate of
Liquidating Agent.
--------------------------------------------
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the
provisions of Article Seven hereof, and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-
up, liquidation or reorganization proceedings are pending, or upon a
certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Securities, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the
--
holders of the Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or
to this Article Ten.
SECTION 10.09 Trustee's Relation to Senior Indebtedness.
-----------------------------------------
The Trustee and any agent of the Company or the Trustee
shall be entitled to all the rights set forth in this Article Ten with
respect to any Senior Indebtedness which may at any time be held by it
in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture
shall deprive the Trustee or any such agent of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its duties,
covenants, responsibilities and obligations as are specifically set
forth in this Article Ten, and no implied duties, covenants,
responsibilities or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Indebtedness, the distribution may be made
and the notice may be given to their Representative, if any.
SECTION 10.10 Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness.
------------------------------------
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee,
without incurring responsibility to the Trustee or the Holders of the
Securities and without impairing or releasing the subordination
provided in this Article Ten or the
--
obligations hereunder of the Holders of the Securities to the holders
of the Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness, or any instrument
evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other
Person.
SECTION 10.11 Securityholders Authorize Trustee To
Effectuate Subordination of Securities.
--------------------------------------
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf
to take such action as may be necessary or appropriate to effectuate,
as between the holders of Senior Indebtedness and the Holders of
Securities, the subordination provided in this Article Ten, and
appoints the Trustee such Holder's attorney-in-fact to act for and on
behalf of each such Holder of Securities for such purposes, including,
in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a
claim for the unpaid balance of its Securities and accrued interest in
the form required in those proceedings.
SECTION 10.12 This Article Ten Not To Prevent Events of
Default.
-----------------------------------------
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article
Ten will not be construed as preventing the occurrence of an Event of
Default.
SECTION 10.13 Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
--
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in
this Indenture by the TIA, the required provision shall control.
SECTION 11.02 Notices.
-------
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telex, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company:
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
if to the Trustee:
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
The Company and the Trustee by written notice to each other
may designate additional or different addresses for notices. Any
notice or communication to the Company or the Trustee shall be deemed
to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is
acknowledged, if faxed; and five (5)
--
calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not
be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his
address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether or
not the addressee receives it.
SECTION 11.03 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA section
312(b) with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA
section 312(c).
SECTION 11.04 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:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent to be performed by
the Company, if any, provided for in this Indenture relating to
the proposed action have been complied with.
SECTION 11.05 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 the Officers' Certificate required by Section 4.07, 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 reasonably necessary
to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
each such Person, such condition or covenant has been complied
with.
SECTION 11.06 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 11.07 Legal Holidays.
--------------
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions
in New York, New York, Dallas, Texas or at such place of payment are
not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08 Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 11.09 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. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 11.10 No Recourse Against Others.
--------------------------
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company shall not have
any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Securityholder by
accepting a Security waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of
the Securities.
SECTION 11.11 Successors.
----------
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 11.12 Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13 Severability.
------------
In case any one or more of the provisions in this Indenture
or in the Securities shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
--
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the date first written
above.
CHANCELLOR RADIO BROADCASTING
COMPANY
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT A
---------
CHANCELLOR RADIO BROADCASTING COMPANY
12% Subordinated Exchangeable Debentures due 2009
No. $
CHANCELLOR RADIO BROADCASTING COMPANY, a Delaware
corporation (the "Company"), for value received, promises to pay to
or registered assigns, the principal sum of
Dollars, on January 15, 2009.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officers.
CHANCELLOR RADIO BROADCASTING
COMPANY
By:
---------------------------------------------
-
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Officer
By:
---------------------------------------------
-
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
A-
Trustee's Certificate of Authentication
This is one of the 12% Subordinated Exchange Debentures due
2009 referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
-------------------------------------
Authorized Signatory
A-
(REVERSE OF SECURITY)
12% Subordinated Exchange Debentures due 2009
1. Interest. CHANCELLOR RADIO BROADCASTING COMPANY, a
--------
Delaware corporation (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above.
Interest on the Securities will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from
______________. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing
. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Notwithstanding anything herein to the contrary, on each
Interest Payment Date through and including January 15, 2002, the
entire amount of the interest payment on the Securities may be paid,
at the option of the Company, in additional Securities ("Secondary
Securities") (valued at 100% of the principal amount thereof). The
Company may, at its option, pay cash in lieu of issuing any Secondary
Security to the extent the principal amount such Secondary Security is
not an integral multiple of $1,000. The Company shall notify the
Trustee of the Company's election to pay interest in Secondary
Securities not less than 10 days prior to the Record Date for an
Interest Payment Date. On each such Interest Payment Date, the
Trustee shall authenticate Secondary Securities for original issuance
to each holder of Securities on the preceding Record Date, as shown on
the Security Register, in the amount required to pay such interest.
For purposes of determining the principal amount of Secondary
Securities to be issued in payment of interest, the Company shall be
entitled to aggregate as to each holder the principal amount of all
Securities and Secondary Securities held of record by such holder.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the
rate borne by the Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on
-----------------
the Securities (except defaulted interest) to the Persons who
Insert Issue Date.
Insert first Interest Payment Date following the Issue
Date.
A-
are the registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Securities
are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company shall pay principal
and interest (to the extent not paid in Secondary Securities) in money
of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by its check payable in
such U.S. Legal Tender. The Company may deliver any such interest
payment (including any interest payment made in Secondary Securities)
to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust
--------------------------
Company of Texas, N.A. (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-
Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.
4. Indenture and Guarantees. The Company issued the
------------------------
Securities under an Indenture, dated as of January 23, 1997 (the
"Indenture"), between the Company and the Trustee. This Security is
one of a duly authorized issue of Securities of the Company designated
as its 12% Subordinated Exchange Debentures due 2009 (the
"Securities"), limited (except as otherwise provided in the Indenture)
in aggregate principal amount to $360,000,000, which may be issued
under the Indenture. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Securities are subject to all
such terms, and Holders of Securities are referred to the Indenture
and the TIA for a statement of them. The Securities are general
unsecured obligations of the Company.
5. Subordination. The Securities are subordinated in
-------------
right of payment, in the manner and to the extent set forth in the
Indenture, to the prior payment in full in cash or Cash Equivalents of
all Senior Indebtedness, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. To
the extent and in the manner provided in the Indenture, Senior
Indebtedness must be paid before any payment may be made to any Holder
of this Security. Each Holder by his acceptance hereof agrees to be
bound by such provisions
A-
and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee
his attorney-in-fact for such purposes.
6. Optional Redemption. (a) The Securities will be
-------------------
redeemable, at the Company's option, in whole at any time or in part
from time to time, on and after January 15, 2002, at the following
redemption prices (expressed as percentages of the principal amount)
if redeemed during the twelve-month period commencing on January 15 of
the year set forth below, plus, in each case, accrued interest thereon
to the date of redemption:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . 106.00%
2003 . . . . . . . . . . . 104.80%
2004 . . . . . . . . . . . 103.60%
2005 . . . . . . . . . . . 102.40%
2006 . . . . . . . . . . . 101.20%
2007 and thereafter . . . . 100.00%
(b) In addition, on or prior to January 15, 2000, the
Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings to redeem the Securities, in part, at a
redemption price of 112% of the principal amount thereof plus accrued
interest thereon to the date of redemption; provided, however, that
-------- -------
after any such redemption the aggregate principal amount of the
Securities outstanding must equal at least $150,000,000.
(c) In addition, prior to January 15, 1999, upon the
occurrence of a Change of Control, the Company will have the option to
redeem the Securities in whole but not in part (a "Change of Control
Redemption") at a redemption price equal to 112% of the principal
amount thereof (the "Change of Control the Redemption Price"),
together with accrued interest thereon to date of redemption. In
order to effect a Change of Control Redemption, the Company must send
a notice to each Holder within 30 days following the date the Change
of Control occurred, stating that the Company is effecting a Change of
Control Redemption in lieu of a Change of Control Offer.
7. Notice of Redemption. Notice of redemption will be
--------------------
mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at such
Holder's registered address. In order to effect a redemption with the
proceeds of a Public Equity Offering, the
A-
Company shall send the redemption notice not later than 60 days after
the consummation of such Public Equity Offering. Securities in
denominations larger than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of
-----------------------
Control, upon the satisfaction of the conditions set forth in the
Indenture, the Company shall be required to offer to repurchase all of
the then outstanding Securities pursuant to a Change of Control Offer
at a purchase price equal to 101% of the principal amount thereof plus
accrued interest, if any, to the date of repurchase. Holders of
Securities which are the subject of such an offer to repurchase shall
receive an offer to repurchase and may elect to have such Securities
repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain
-----------------------------------
circumstances the Company is required to apply the net proceeds from
Asset Sales to offer to repurchase Securities at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to
the date of repurchase.
10. Denominations; Transfer; Exchange. The Securities are
---------------------------------
in registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000; provided, however, that Secondary
-------- -------
Securities and Securities issued in exchange for the Senior
Exchangeable Preferred Stock may be issued in denominations of less
than $1,000 (but not less than $1.00). A Holder shall register the
transfer of or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any
Securities or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a
---------------------
Security shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal
---------------
or interest remains unclaimed for one year, the Trustee and the Paying
Agent will pay the money back to the Company. After that, all
liability of the Trustee and such Paying Agent with respect to such
money shall cease.
X-
00. Discharge Prior to Redemption or Maturity. If the
-----------------------------------------
Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and
interest on the Securities to redemption or maturity and complies with
the other provisions of the Indenture relating thereto, the Company
will be discharged from certain provisions of the Indenture and the
Securities (including certain covenants, but excluding its obligation
to pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain
-----------------------------
exceptions, the Indenture or the Securities may be amended or
supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities in addition to or
in place of certificated Securities, or comply with Article Five of
the Indenture or make any other change that does not adversely affect
in any material respect the rights of any Holder of a Security.
15. Restrictive Covenants. The Indenture imposes certain
---------------------
limitations on the ability of the Company and its Subsidiaries to,
among other things, incur additional Indebtedness, make payments in
respect of its Capital Stock or certain Indebtedness, engage in
certain Asset Swaps, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Subsidiaries and
merge or consolidate with any other Person, sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject
to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such
limitations.
16. Successors. When a successor assumes, in accordance
----------
with the Indenture, all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from
those obligations.
17. Defaults and Remedies. If an Event of Default occurs
---------------------
and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding
A-
may declare all the Securities to be due and payable in the manner,
at the time and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee is not obligated to enforce
the Indenture or the Securities unless it has been offered indemnity
or security reasonably satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to
direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of Securities notice of any continuing
Default or Event of Default (except a Default in payment of principal
or interest) if it determines in good faith that withholding notice is
in their interest.
18. Trustee Dealings with Company. The Trustee under the
-----------------------------
Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries, Unrestricted Subsidiaries or their
respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or future
--------------------------
stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each
Holder of a Security by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration
for the issuance of the Securities.
20. Authentication. This Security shall not be valid until
--------------
the Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
21. Governing Law. The laws of the State of New York shall
-------------
govern this Security and the Indenture, without regard to principles
of conflict of laws.
22. Abbreviations and Defined Terms. Customary
-------------------------------
abbreviations may be used in the name of a Holder of a Security or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation
-------------
promulgated by the Committee on Uniform Security Identification
A-
Procedures, the Company has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed
on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Security,
---------
agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time. Capitalized
terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture, which has
the text of this Security in larger type. Requests may be made to:
CHANCELLOR RADIO BROADCASTING COMPANY, 00000 X. Xxxxxxx Xxxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000.
A-
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
________________________________
_______________________________________________________________
(please print or type name and address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________
attorney to transfer the Security on the books of the Company with
full power of substitution in the premises.
Dated:___________________ _________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Security in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: _________________________________
