1
EXHIBIT 4.2
________________________________________________________________________________
________________________________________________________________________________
INDENTURE
Dated as of February 20, 1997
Between
CAPSTAR BROADCASTING PARTNERS, INC., as Issuer,
and
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
____________________
$277,000,000
12 3/4% Senior Discount Notes due 2009, Series A
12 3/4% Senior Discount Notes due 2009, Series B
________________________________________________________________________________
________________________________________________________________________________
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
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;
10.02
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . 10.03
313(a) . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . 7.06; 10.02
(d) . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . 4.07; 4.09;
10.02
(b) . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . 10.05
(f) . . . . . . . . . . . . . . . . . . . . N.A
315(a) . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(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.
3
(b) . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . 10.01
(c) . . . . . . . . . . . . . . . . . . . . 10.01
______________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
4
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of TIA . . . . . . . . . . . . . 17
Section 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . 18
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . 19
Section 2.04 Paying Agent To Hold Assets in Trust . . . . . . . . . . . . 20
Section 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . . . 20
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . 20
Section 2.07 Replacement Securities . . . . . . . . . . . . . . . . . . . 21
Section 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . . . 21
Section 2.09 Treasury Securities . . . . . . . . . . . . . . . . . . . . 22
Section 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . 22
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 23
Section 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . 23
Section 2.15 Book-Entry Provisions for Global
Securities . . . . . . . . . . . . . . . . . . . . . 23
Section 2.16 Registration of Transfers and
Exchanges . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.17 Designation . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . 29
-i-
5
Section 3.02 Selection of Securities To Be
Redeemed . . . . . . . . . . . . . . . . . . . . . 30
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . 30
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . 31
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . 31
Section 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . 32
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . 32
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . 32
Section 4.03 Limitation on Restricted Payments . . . . . . . . . . . . . 32
Section 4.04 Corporate Existence . . . . . . . . . . . . . . . . . . . . 36
Section 4.05 Payment of Taxes and Other Claims . . . . . . . . . . . . . 36
Section 4.06 Maintenance of Properties and
Insurance . . . . . . . . . . . . . . . . . . . . . 37
Section 4.07 Compliance Certificate; Notice of
Default . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . . 38
Section 4.09 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.10 Waiver of Stay, Extension or Usury
Laws . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.11 Limitation on Transactions with
Affiliates . . . . . . . . . . . . . . . . . . . . 39
Section 4.12 Limitation on Incurrence of
Additional Indebtedness and
Issuance of Preferred Stock of
Subsidiaries . . . . . . . . . . . . . . . . . . . 40
Section 4.13 Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries . . . . . . . . . . . . . . . . . . . 40
Section 4.14 Change of Control . . . . . . . . . . . . . . . . . . . . . 41
Section 4.15 Limitation on Asset Sales . . . . . . . . . . . . . . . . . 43
Section 4.16 Limitation on Asset Swaps . . . . . . . . . . . . . . . . . 44
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Merger, Consolidation and Sale of Assets . . . . . . . . . . 45
-ii-
6
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . . . 46
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . 46
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 49
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . 49
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 49
Section 6.07 Rights of Holders To Receive
Payment . . . . . . . . . . . . . . . . . . . . . 50
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . 50
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . 50
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 52
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 53
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . 54
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . 54
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . 55
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . 55
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . 55
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . 56
Section 7.09 Successor Trustee by Xxxxxx, Etc. . . . . . . . . . . . . . 57
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . 58
Section 7.11 Preferential Collection of Claims
Against the Company . . . . . . . . . . . . . . . . 58
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's Obligations . . . . . . . . . . 58
-iii-
7
Section 8.02 Acknowledgment of Discharge by
Trustee . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.03 Application of Trust Money . . . . . . . . . . . . . . . . . 61
Section 8.04 Repayment to the Company . . . . . . . . . . . . . . . . . . 61
Section 8.05 Reinstatement 61
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . 62
Section 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . 62
Section 9.03 Compliance with TIA . . . . . . . . . . . . . . . . . . . . 64
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . 64
Section 9.05 Notation on or Exchange of
Securities . . . . . . . . . . . . . . . . . . . . 65
Section 9.06 Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . 65
ARTICLE TEN
MISCELLANEOUS
Section 10.01 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.03 Communications by Holders with Other
Holders . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.04 Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . . . . . . 67
Section 10.05 Statements Required in Certificate or
Opinion . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.06 Rules by Xxxxxxx, Paying Agent,
Registrar . . . . . . . . . . . . . . . . . . . . . 68
Section 10.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.09 No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . . . . . . . 68
Section 10.10 No Recourse Against Others . . . . . . . . . . . . . . . . . 68
Section 10.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . 69
Section 10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . 69
-iv-
8
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for
Institutional Accredited Investors
Note: This Table of Contents shall not, for any purpose, be deemed to
be part of the Indenture.
-v-
9
INDENTURE, dated as of February 20, 1997, between Capstar
Broadcasting Partners, Inc., a Delaware corporation (the "Company"), and U.S.
Trust Company of Texas, N.A., a national banking association, as trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of 12
3/4% Senior Discount Notes due 2009, Series A, and 12 3/4% Senior Discount
Notes due 2009, Series B, to be issued in exchange for the 12 3/4% Senior
Discount Notes due 2009, Series A, pursuant to a registration rights agreement
and, to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make the Securities, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid and binding obligations of the Company and to make this
Indenture a valid and binding agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 12
3/4% Senior Discount Notes due 2009 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Accreted Value" means, as of any date of determination, the sum
of (i) the initial offering price of each Security and (ii) the portion of the
excess of the principal amount at maturity of each Security over such initial
offering price that shall have been amortized through such date, such amount to
be so amortized on a daily basis and compounded semi-annually on each February
1 and August 1 at the rate of 12 3/4% per annum from the date of issuance of
the Securities through the date of determination; provided, that the Accreted
Value of the Securities shall be 100% from February 1, 2002 to maturity of the
Securities.
"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
10
-2-
connection with, or in anticipation or contemplation of, such Person becoming a
Subsidiary of the Company or 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.
"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 of Section 4.15, Asset Sales shall not include (a) a transaction
or series of related transactions in which the Company or its Subsidiaries
receive aggregate consideration of less than $500,000, (b) transactions
permitted under Section 4.16 or (c) transactions covered by Section 5.01.
"Asset Swap" means the execution of a definitive agreement,
subject only to the Federal Communications Commission's approval, if
applicable, and other customary closing conditions, that the Company in good
faith believes will be satisfied, for a substantially concurrent purchase and
sale, or exchange, of Productive Assets between the Company or any of its
Subsidiaries and another Person or group of affiliated Persons; provided that
any amendment to or waiver of any closing condition that individually or in the
aggregate is material to the Asset Swap shall be deemed to be a new Asset Swap.
11
-3-
"Bankruptcy Law" means Title 11, United States Code or any
similar federal, state or foreign law for the relief of debtors.
"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 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
12
-4-
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, any of its Affiliates (excluding Chancellor Broadcasting Company),
officers and directors or X. Xxxxxx Xxxxx (the "Permitted Holders"); or (ii) a
majority of the Board of Directors of 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 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.
"Commission" means the Securities and Exchange Commission.
"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.
"Commodore" means Commodore Media, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company.
"Commodore Indenture" means the indenture dated as of April 21,
1995 by and among Commodore, as Issuer, the Subsidiaries of Commodore named
therein, as Guarantors, and IBJ Xxxxxxxx Bank & Trust Company, as Trustee, as
in effect on the Issue Date.
13
-5-
"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, (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
14
-6-
consolidated Subsidiary of such Person and (f) any non-cash expenses
attributable to grants or exercises of employee stock options.
"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 (excluding any such charges
constituting an extraordinary or nonrecurring item) reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company on the
Issue Date, (ii) was nominated for election or elected to the Board of
Directors of 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.
"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 fluctuations 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 Amount" means, (i) as of any date prior to February 1,
2002, the Accreted Value of all outstanding Securities (plus any applicable
premium thereon) as of such date and (ii) as of any date on or after February
1, 2002, 100% of the principal amount at maturity of all outstanding Securities
(plus any applicable premium thereon), plus accrued and unpaid interest, if
any, thereon.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the
15
-7-
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 Commission
thereunder.
"Financial Monitoring and Oversight Agreements" means,
collectively, the Monitoring and Oversight Agreement between the Company and
Xxxxx, Muse & Co. Partners, L.P., as in effect on the Issue Date, and the
Financial Advisory Agreement between the Company and Xxxxx, Muse & Co.
Partners, L.P., as in effect on the 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.
"Global Security" means a security evidencing all or a portion of
the Securities issued to the Depository or its nominee in accordance with
Section 2.01 and bearing the legend set forth in Exhibit C.
"Xxxxx Muse" means Xxxxx, 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.
"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)
16
-8-
which is secured by any Lien on any property or asset of such first referred to
Person, the amount of such Indebtedness being deemed to be the lesser of the
value of such property or asset or the amount of the Indebtedness so secured.
The amount of Indebtedness of any Person at any date shall be 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 10.07.
"Leverage Ratio" shall mean the ratio of (i) the aggregate
outstanding amount of Indebtedness of the Company and its Subsidiaries as of
the date of calculation on a consolidated basis in accordance with GAAP plus
the aggregate liquidation preference of all outstanding Preferred Stock of the
Company's Subsidiaries on such date less the Accreted Value of the Securities
on such date to (ii) the Consolidated EBITDA of the Company for the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
determination.
17
-9-
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Company and its Subsidiaries and the
aggregate liquidation preference of all outstanding Preferred Stock of the
Company's Subsidiaries for which such calculation is made shall be determined
on a pro forma basis as if the Indebtedness and Preferred Stock giving rise to
the need to perform such calculation had been incurred and issued and the
proceeds therefrom had been applied, and all other transactions in respect of
which such Indebtedness is being incurred or Preferred Stock is being issued
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 issuance of the
Preferred Stock of such 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, (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 or such Person's Subsidiaries
issuing Preferred Stock) 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 the issuance of such Preferred Stock
and also including any Consolidated EBITDA associated with such Asset
Acquisition) occurred on the first day of the Four Quarter Period and (iii)
cost savings resulting from employee terminations, facilities consolidations
and closings, standardization of employee benefits and compensation practices,
consolidation of property, casualty and other insurance coverage and policies,
standardization of sales representation commissions and other contract rates,
and reductions in taxes other than income taxes (collectively, "Cost Savings
Measures"), which cost savings the Company reasonably believes in good faith
would have been achieved during the Four Quarter Period as a result of such
Asset Acquisitions (regardless of whether such cost savings could then be
reflected in pro forma financial statements under GAAP, Regulation S-X
promulgated by the Commission or any other regulation or policy of the
Commission), provided that both (A) such cost savings and Cost Savings Measures
were identified and such cost savings were quantified in an officer's
certificate delivered to the Trustee at the time of the consummation of the
Asset Acquisition and such officer's certificate states that such officer
believes in good faith that actions will be commenced or initiated within 90
days of such Asset Acquisition to effect such Cost Savings Measures and (B)
with respect to each Asset Acquisition completed prior to the 90th day
preceding such date of determination, actions were commenced or initiated by
the Company within 90 days of such Asset Acquisition to effect the
18
-10-
Cost Savings Measures identified in such officer's certificate (regardless,
however, of whether the corresponding cost savings have been achieved).
Furthermore, in calculating "Consolidated Interest Expense" for purposes of the
calculation of "Consolidated 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).
"Major Asset Sale" means an Asset Sale or series of related
Assets Sales involving assets with a fair market value in excess of
$25,000,000.
"Maturity Date" means February 1, 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 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.
19
-11-
"Net Proceeds Offer" has the meaning provided in Section 4.15.
"New Credit Facility" means the credit agreement to be entered
into among the Company, Commodore, Bankers Trust Company, as agent and the
lenders parties thereto from time to time, as the same may be amended,
supplemented or otherwise modified from time to time and (ii) any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original agent and lenders or another agent or agents or
other lenders and whether provided under the original New Credit Facility or
any other credit agreement).
"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 10.04 and 10.05, 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 10.04 and 10.05, 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; (ii) Indebtedness of the Company or
a Subsidiary incurred pursuant to the New Credit Facility in an aggregate
principal amount at any time outstanding not to exceed the sum of the aggregate
commitments pursuant to the New Credit Facility as in effect on the Issue Date;
(iii) Indebtedness evidenced by or arising under the Securities and the
Indenture; (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
20
-12-
in principal amount outstanding at any time (which amount may, but need not, be
incurred under the New Credit Facility); (vi) Refinancing Indebtedness; (vii)
Indebtedness owed by the Company to any Wholly Owned Subsidiary or by any
Subsidiary of the Company to the Company or any Wholly Owned Subsidiary of the
Company; (viii) guarantees by Subsidiaries of any Indebtedness permitted to be
incurred pursuant to the Indenture; (ix) Indebtedness in respect of performance
bonds, bankers' acceptances and surety or appeal bonds provided by the Company
or any of its Subsidiaries to their customers in the ordinary course of their
business; (x) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Subsidiaries pursuant to such
agreements, in each case incurred in connection with the disposition of any
business assets or Subsidiaries of the Company (other than guarantees of
Indebtedness or other obligations incurred by any Person acquiring all or any
portion of such business assets or Subsidiaries of the Company for the purpose
of financing such acquisition) in a principal amount not to exceed the gross
proceeds actually received by the Company or any of its Subsidiaries in
connection with such disposition; provided, however, that the principal amount
of any Indebtedness incurred pursuant to this clause (x), when taken together
with all Indebtedness incurred pursuant to this clause (x) and then
outstanding, shall not exceed $7,500,000; and (xi) Indebtedness represented by
Capitalized Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing all or any part
of the purchase price or cost of construction or improvement of property used
in a related business or incurred to refinance any such purchase price or cost
of construction or improvement, in each case incurred no later than 365 days
after the date of such acquisition or the date of completion of such
construction or improvement; provided, however, that the principal amount of
any Indebtedness incurred pursuant to this clause (xi) shall not exceed
$3,000,000 at any time outstanding.
"Permitted Investments" means (i) Investments by the Company or
any Subsidiary of the Company to acquire the stock or assets of any Person (or
Acquired Indebtedness 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, (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
21
-13-
creditors, wholesalers or customers received pursuant to any plan of
reorganization or similar arrangement, (vi) loans or advances to employees of
the Company or any Subsidiary thereof for purposes of purchasing the Company's
Capital Stock and other loans and advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Subsidiary, and (vii) additional Investments in an aggregate amount not to
exceed $1,000,000 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.
"principal" of any Indebtedness (including the Securities) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend initially set forth
on the Securities in the form set forth on Exhibit A.
"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
promulgated under the Securities Act.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company, pursuant
to an effective registration statement filed with the Commission in accordance
with the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
22
-14-
"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
or any of its Subsidiaries of Indebtedness of the Company or any of its
Subsidiaries incurred in accordance with Section 4.12 hereof (other than
pursuant to clause (iii)) 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 Senior Debt; provided that if, and
for so long as, any Senior Debt lacks such a representative, then the
Representative for such Senior Debt shall at all times constitute the holders
of a majority in outstanding principal amount of such Senior Debt.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock or in options, rights or
warrants to acquire Qualified Capital Stock) on shares of the Company's Capital
Stock, (ii) the purchase, redemption, retirement or other acquisition for value
of any Capital Stock of the Company, or any warrants, rights or options to
acquire shares of Capital Stock of the Company, other than through the exchange
of such Capital Stock or any warrants, rights or options to acquire shares of
any class of such Capital Stock for Qualified Capital Stock or warrants, rights
or options to acquire Qualified Capital Stock, (iii) the making of any
principal payment on, or the purchase, defeasance, redemption, prepayment,
decrease or other acquisition or retirement for value, prior to any scheduled
final maturity, scheduled repayment or scheduled sinking fund payment, of, any
Indebtedness of the Company or its Subsidiaries that is subordinated or junior
in right of payment to the Securities or (iv) the making of any Investment
(other than a Permitted Investment).
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act.
23
-15-
"Securities" means the Company's 12 3/4% Senior Discount Notes
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 Commission promulgated thereunder.
"Senior Debt" 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 pari passu in right of payment to the Securities.
Without limiting the generality of the foregoing, "Senior Debt" 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 New Credit Facility, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities and (x) all Interest Swap Obligations.
Notwithstanding the foregoing, Senior Debt shall not include any of the
following amounts (whether or not constituting Indebtedness as defined herein):
(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; and (iv) any liability for federal, state, local or
other taxes owed or owing by the Company.
"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 the Indenture to the
contrary, all references to the Company and its consolidated Subsidiaries or to
financial information prepared on a consolidated basis in
24
-16-
accordance with GAAP shall be deemed to include the Company and its
Subsidiaries as to which financial statements are prepared on a consolidated
basis in accordance with GAAP and to financial information prepared on such a
consolidated basis. Notwithstanding anything herein to the contrary, an
Unrestricted Subsidiary shall not be deemed to be a Subsidiary for purposes
hereof.
"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 and
(b) at the time of designation of such Subsidiary, such Subsidiary has no
property or assets (other than de minimis assets resulting from the initial
capitalization of such Subsidiary). The Board of Directors may designate any
Unrestricted Subsidiary to be a Subsidiary; provided, however, that immediately
after giving effect to such designation (x) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof and (y) no Default or Event of Default shall have occurred
or be continuing. Any designation pursuant to this definition by the Board of
Directors of the Company shall be evidenced to the Trustee by the filing with
the Trustee of a certified copy of the resolution of the Company's Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation 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.
25
-17-
"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) which normally have the right to vote in the
election of directors 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.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
26
-18-
(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 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 exchange
securities and the Trustee's certificate of authentication relating thereto
shall be substantially in the form of Exhibit B 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.
27
-19-
If an Officer 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 at maturity of up to $277,000,000 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 at maturity of Securities outstanding at any
time may not exceed $277,000,000 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.
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.
The Company may change the Paying Agent or Registrar without notice to any
Holder.
28
-20-
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 and shall otherwise comply with TIA Section 312(a). 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.
Subject to Section 2.15, 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
29
-21-
such transaction are met; provided, however, that the Securities surrendered
for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's or co-Registrar's written request. No service charge shall be made
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith. 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 pursuant to Section 3.03 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. Subject to Section 2.09, 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.
30
-22-
If the principal amount at maturity of any Security is paid in
accordance with the provisions of Section 4.01, such Security shall cease to be
outstanding and interest thereon shall cease to accrue.
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, premium 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 at maturity 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 at maturity 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 and deliver evidence of disposal of all Securities
surrendered for
31
-23-
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 Numbers.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers 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 numbers 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.
SECTION 2.15 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit C.
32
-24-
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities
may be transferred or exchanged for physical securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16. In
addition, physical securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor Depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue physical securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon
written instructions from the Company authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
physical securities of authorized denominations.
(d) Any physical security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) of this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
33
-25-
SECTION 2.16 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of physical securities. When
physical securities are presented to the Registrar or co-Registrar with a
request:
(i) to register the transfer of the physical securities; or
(ii) to exchange such physical securities for an equal number
of physical securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the
physical securities presented or surrendered for registration of transfer or
exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(II) in the case of physical securities the offer and sale of
which have not been registered under the Securities Act, such physical
securities shall be accompanied, in the sole discretion of the Company,
by the following additional information and documents, as applicable:
(A) if such physical security is being delivered to the
Registrar or co-Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification
from such Holder to that effect (substantially in the form
of Exhibit D hereto); or
(B) if such physical security is being transferred to a
Qualified Institutional Buyer in accordance with Rule
144A, a certification from such Holder to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such physical security is being transferred to an
Institutional Accredited Investor, delivery of a
certification from the Holder to that effect
(substantially in the form of Exhibit D hereto) and a
Transferee Certificate for Institutional Accredited
Investors substantially in the form of Exhibit E hereto;
or
(D) if such physical security is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a
certification from the Holder to that effect
(substantially in the form of Exhibit D hereto) and an
Opinion of Counsel
34
-26-
reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act; or
(E) if such physical security is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification from the Holder to
that effect (substantially in the form of Exhibit D
hereto) and an Opinion of Counsel reasonably acceptable to
the Company to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a physical security for a
Beneficial Interest in a Global Security. A physical security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Registrar or co-Registrar of a physical security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Registrar
or co-Registrar, together with:
(A) certification, substantially in the form of Exhibit D
hereto, that such physical security is being transferred
to a Qualified Institutional Buyer; and
(B) written instructions directing the Registrar or co-
Registrar to make, or to direct the Depository to make, an
endorsement on the applicable Global Security to reflect
an increase in the aggregate amount of the Securities
represented by the Global Security,
then the Registrar or co-Registrar shall cancel such physical security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar
or co-Registrar, the aggregate principal amount at maturity of Securities
represented by the applicable Global Security to be increased accordingly. If
no Global Security representing Securities held by Qualified Institutional
Buyers is then outstanding, the Company shall issue and the Trustee shall, upon
written instructions from the Company in accordance with Section 2.02,
authenticate such a Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depository therefor. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other instruction as is customary for the Depository,
from the Depository or its nominee requesting the registration of transfer of
an interest in a physical security held by a
35
-27-
Qualified Institutional Buyer to another type of Global Security or physical
security, as the case may be, together with the applicable Global Securities or
physical securities (or, if the applicable type of Global Security required to
represent the interest as requested to be transferred is not then outstanding,
only the Global Security representing the interest being transferred), the
Registrar or co-Registrar shall cancel such Global Securities (or physical
securities) and the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate new
Global Securities or physical securities of the types so cancelled (or the type
so cancelled and applicable type required to represent the interest as
requested to be transferred) reflecting the applicable increase and decrease of
the principal amount of Securities represented by such types of Global
Securities or physical securities, giving effect to such transfer. If the
applicable type of Global Security or physical security required to represent
the interest as requested to be transferred is not outstanding at the time of
such request, the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate a
new Global Security or physical security of such type in principal amount equal
to the principal amount of the interest requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global Security for
a physical security.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial
interest for a physical security. Upon receipt by the
Registrar or co-Registrar of written instructions, or such
other form of instructions as is customary for the
Depository, from the Depository or its nominee on behalf
of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written
order or such other form of instructions as is customary
for the Depository or the Person designated by the
Depository as having such a beneficial interest containing
registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in
Securities the offer and sale of which have not been
registered under the Securities Act, the following
additional information and documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being
the beneficial owner, a certification from such
Person to that effect (substantially in the form of
Exhibit D hereto); or
(B) if such beneficial interest is being transferred to
a Qualified Institutional Buyer in accordance with
Rule l44A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
36
-28-
(C) if such beneficial interest is being transferred to
an Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a Certificate for
Institutional Accredited Investors substantially in
the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and
an Opinion of Counsel reasonably satisfactory to
the Company to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of
Exhibit D hereto) and an Opinion of Counsel
reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the
Securities Act,
then the Registrar or co-Registrar will cause, in accordance with
the standing instructions and procedures existing between the
Depository and the Registrar or co-Registrar, the aggregate
principal amount of the applicable Global Security to be reduced
and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers'
Certificate in accordance with Section 2.02, the Trustee will
authenticate and deliver to the transferee a physical security.
(ii) Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.16(d)
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Registrar or co- Registrar in writing. The Registrar or co-
Registrar shall deliver such physical securities to the Persons
in whose names such physical securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture, a Global
Security may not be transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
37
-29-
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless, and the
Trustee is hereby authorized to deliver Securities without the Private
Placement Legend if (i) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (ii)
such Security has been sold pursuant to an effective registration statement
under the Securities Act.
(g) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
SECTION 2.17 Designation.
The Indebtedness evidenced by the Securities is hereby
irrevocably designated as "senior indebtedness" or such other term denoting
seniority for the purposes of any future Indebtedness of the Company that the
Company makes subordinate to any senior indebtedness or such other term
denoting seniority.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph
5 of the Securities, it shall notify the Trustee and the Paying Agent in
writing of the Redemption Date and the principal amount at maturity 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). Such notice
38
-30-
must be given at least 60 days prior to the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee), but shall not be given 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 less than all of the Securities are to be redeemed at any
time, 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, in the absence of such
requirements or if the Securities are not listed on a national securities
exchange, 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 at
maturity 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 amount at
maturity 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 at its registered address 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;
39
-31-
(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, the Accreted Value shall cease to accrete and interest, if any,
on Securities called for redemption shall cease 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 at maturity 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 at maturity
equal to the unredeemed portion thereof will be issued; and
(8) if less 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 at maturity of
Securities to be redeemed and the aggregate principal amount at maturity
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 that 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, accretion
or interest, as the case may be, 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.
40
-32-
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 at maturity to the unredeemed portion of the Security
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the Accreted Value 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.
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, premium 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 10.02.
SECTION 4.03 Limitation on Restricted Payments.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, make any Restricted Payment if at the time of such Restricted
Payment and immediately after giving effect thereto:
41
-33-
(i) a Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment; or
(ii) the Company is not able to incur $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 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
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 subsequent to the Issue
Date of Qualified Capital Stock of the Company (excluding (i) any
net proceeds from issuances and sales financed directly or
indirectly using funds borrowed from the Company or any
Subsidiary of the Company, until and to the extent such borrowing
is repaid, but including the proceeds from the issuance and sale
of any securities convertible into or exchangeable for Qualified
Capital Stock to the extent such securities are so converted or
exchanged and including any additional proceeds received by the
Company upon such conversion or exchange and (ii) any net
proceeds received from issuances and sales that are used to
consummate a transaction described in clauses (2) and (3) of
paragraph (B) below), plus
(C) without duplication of any amount included in
clause (iii)(B) above, 100% of the aggregate net proceeds,
including the fair market value of property other than cash
(valued as provided in clause (iii)(B) above), received by the
Company as a capital contribution on or after the Issue Date,
plus
(D) the amount equal to the net reduction in
Investments (other than Permitted Investments) made by the
Company or any of its Subsidiaries in any Person resulting from
(i) repurchases or redemptions of such Investments by such
42
-34-
Person, proceeds realized upon the sale of such Investment to an
unaffiliated purchaser and repayments of loans or advances or
other transfers of assets by such Person to the Company or any
Subsidiary of the Company or (ii) the redesignation of
Unrestricted Subsidiaries as Subsidiaries (valued in each case as
provided in the definition of "Investment") not to exceed, in the
case of any Subsidiary, the amount of Investments previously made
by the Company or any Subsidiary in such Unrestricted Subsidiary,
which amount was included in the calculation of Restricted
Payments; provided, however, that no amount shall be included
under this clause (D) to the extent it is already included in
Consolidated EBITDA, plus
(E) the aggregate net cash proceeds received by a
Person in consideration for the issuance of such Person's Capital
Stock (other than Disqualified Capital Stock) that are held by
such Person at the time such Person is merged with and into the
Company in accordance with Section 5.01 subsequent to the Issue
Date; provided, however, that concurrently with or immediately
following such merger the Company uses an amount equal to such
net cash proceeds to redeem or repurchase the Company's Capital
Stock, plus
(F) $2,500,000.
Notwithstanding the foregoing, these provisions will not
prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if such
dividend or distribution would have been permitted on the date of
declaration;
(2) the purchase, redemption or other acquisition or
retirement of any Capital Stock of the Company or any warrants, options
or other rights to acquire shares of any class of such Capital Stock
either (x) solely in exchange for shares of Qualified Capital Stock or
other rights to acquire Qualified Capital Stock or (y) through the
application of the net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of shares of Qualified
Capital Stock or warrants, options or other rights to acquire Qualified
Capital Stock or (z) in the case of Disqualified Capital Stock, solely
in exchange for, or through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of, Disqualified Capital Stock that has a redemption date
no earlier than, and requires the payment of current dividends or
distributions in cash no earlier than, in each case, the Disqualified
Capital Stock being purchased, redeemed or otherwise acquired or
retired;
43
-35-
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities either (x)
solely in exchange for shares of Qualified Capital Stock (or warrants,
options or other rights to acquire Qualified Capital Stock), for shares
of Disqualified Capital Stock that have a redemption date no earlier
than, and require the payment of current dividends or distributions in
cash no earlier than, in each case, the maturity date and interest
payments dates, respectively, of the Indebtedness being acquired, or for
Indebtedness of the Company that 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 (y) 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), shares of
Disqualified Capital Stock that have a redemption date no earlier than,
and require the payment of current dividends or distributions in cash no
earlier than, in each case, the maturity date and interest payments
dates, respectively, of the Indebtedness being refinanced, or
Indebtedness of the Company that 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 repurchase Capital Stock or
other securities from employees of the Company in an aggregate amount
not to exceed $5,000,000;
(5) payments to enable the Company to redeem or repurchase
stock purchase or similar rights in an aggregate amount not to exceed
$500,000;
(6) payments, not to exceed $100,000 in the aggregate, to
enable the Company to make cash payments to holders of its Capital Stock
in lieu of the issuance of fractional shares of its Capital Stock;
(7) payments made pursuant to any merger, consolidation or
sale of assets effected in accordance with Section 5.01; provided,
however, that no such payment may be made pursuant to this clause (7)
unless, after giving effect to such transaction (and the incurrence of
any Indebtedness in connection therewith and the use of the proceeds
thereof), the Company would be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 such that after incurring that $1.00 of additional
Indebtedness, the Leverage Ratio would be less than 6.0 to 1; and
44
-36-
(8) the payments of dividends on the Company's Common Stock
after an initial public offering of Common Stock in an annual amount not
to exceed 6.0% of the gross proceeds (before deducting underwriting
discounts and commissions and other fees and expenses of the offering)
received by the Company from shares of Common Stock sold for the account
of the Company (and not for the account of any stockholder) in such
initial public offering;
provided, however, that in the case of clauses (3), (4), (5), (6), (7) and (8),
no Event of Default shall have occurred or be continuing at the time of such
payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended
pursuant to clauses (1), (4), (5), (6), (7) and (8) shall be included in such
calculation.
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.
45
-37-
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.
(a) 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.
(b) 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
46
-38-
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.
(c) So long as any of the Securities are outstanding (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 promptly 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.
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 Reports.
So long as any of the Securities are outstanding, the Company
will provide to the holders of Securities and file with the Commission copies
of the annual reports and of the information, documents, and other reports that
the Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act regardless of whether the Company is
then obligated to file such reports.
SECTION 4.10 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, premium or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the obligations or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein
47
-39-
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 will 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 (1) reasonable and customary directors' fees, indemnification and
similar arrangements and payments thereunder, (2) any obligations of the
Company under the Financial Monitoring and Oversight Agreements (provided that
each amendment of any of the foregoing agreements shall be subject to the
limitations of this covenant) or any employment agreement, noncompetition or
confidentiality with any officer of the Company, (3) reasonable and customary
investment banking, financial advisory, commercial banking and similar fees and
expenses paid to BT Securities Corporation and its Affiliates, (4) any
Restricted Payment permitted to be made pursuant to Section 4.03, (5) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors of the
Company, (6) loans or advances to employees in the ordinary course of business
of the Company or any of its Subsidiaries consistent with past practices, (7)
payments made in connection with the Xxxxxx Acquisition, the Xxxxxx Add-on
Acquisitions, the Xxxxxx Ft. Xxxxx Disposition and the Pending Acquisitions,
including fees to Xxxxx Muse as all such terms are defined in that certain
Offering Memorandum dated February 14, 1997 relating to the Securities, and (8)
the issuance of Capital Stock of the Company (other than Disqualified Capital
Stock).
48
-40-
SECTION 4.12 Limitation on Incurrence of Additional
Indebtedness and Issuance of Preferred
Stock of Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable, contingently or otherwise, with
respect to (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness) and the Company's Subsidiaries will not issue any Preferred
Stock; provided, however, that the Company and its Subsidiaries may incur
Indebtedness and the Company's Subsidiaries may issue shares of Preferred Stock
if, in either case, the Company's Leverage Ratio at the time of incurrence of
such Indebtedness or the issuance of such Preferred Stock, as the case may be,
after giving pro forma effect to such incurrence or issuance as of such date
and to the use of proceeds therefrom is less than 7.0 to 1.
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 to permit to exist or become effective,
by operation of the charter of such Subsidiary or by reason of any agreement,
instrument, judgement, decree, rule, order, statute or governmental regulation,
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) agreements existing on the Issue Date
(including the New Credit Facility and the Commodore Indenture) as such
agreements are from time to time in effect; provided, however, that any
amendments or modifications of such agreements that affect the encumbrances or
restrictions of the types subject to this 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) any restriction with respect to such
a Subsidiary imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition, (7) an agreement
effecting a refinancing, replacement or substitution of Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2),
49
-41-
(4) or (5) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such refinancing, replacement or
substitution 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) above, (8) any agreement
evidencing Indebtedness permitted under this Indenture; provided, however, that
the provisions relating to such encumbrance or restriction contained in such
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 this
Indenture, or (9) 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, each Holder will have
the right to require the Company to purchase all or a portion of such Holder's
Securities pursuant to the offer described in paragraph (b) below (the "Change
of Control Offer"), at a purchase price equal to (i) 101% of the Accreted Value
thereof on the Change of Control Payment Date if the Change of Control Payment
Date is on or before February 1, 2002 and (ii) 101% of the principal amount at
maturity thereof, plus, without duplication, accrued and unpaid interest, if
any, to the Change of Control Payment Date if such Change of Control Payment
Date is after February 1, 2002. Prior to the mailing of the notice referred to
below, but in any event within 30 days following the date on which the Company
becomes aware that a Change of Control has occurred, the Company covenants that
if the purchase of the Securities would violate or constitute a default under
any other Indebtedness of the Company, then the Company shall, to the extent
needed to permit such purchase of Securities, either (i) repay all such
Indebtedness and terminate all commitments outstanding thereunder or (ii)
obtain the requisite consents, if any, under such Indebtedness required to
permit the purchase of the Securities as provided below. The Company will
first comply with the covenant in the preceding sentence before it will be
required to make the Change of Control Offer or purchase the Securities
pursuant to the provisions described below.
(b) Within 30 days following the date on which the Company
becomes aware that a Change of Control has occurred (the "Change of Control
Date"), the Company shall send, by first class mail, postage prepaid, a notice
to each Holder of Securities, 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
50
-42-
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 accrete or accrue
interest, as the case may be, 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 Xxxxxx 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
51
-43-
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 within three Business Days 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 the requirements listed on the Securities in Exhibit A and
Exhibit B 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 such Subsidiary, as the case may be,
from such Asset Sale is in 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 capital stock) for all or substantially all the assets (including
by way of the transfer of 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 any
Senior Debt of the Company or any Indebtedness of a Subsidiary of the Company
(and, to the extent such Senior Debt 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
52
-44-
to the Company for purchase at a price equal to 100% of the Accreted Value
thereof plus accrued interest thereon, if any, to the date of purchase pursuant
to an offer to purchase made by the Company as set forth below (a "Net Proceeds
Offer"); provided, however, that the Company may defer making a Net Proceeds
Offer until the aggregate Net Cash Proceeds from Asset Sales not otherwise
applied in accordance with this Section 4.15 equal or exceed $5,000,000.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds Offer will be mailed,
by first class mail, to Holders of 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. Such notice will specify, among other things, the purchase
date (which will be no earlier than 30 days nor later than 45 days from the
date such notice is mailed, except as otherwise required by law) and will
otherwise comply with the procedures set forth in this Indenture. Upon
receiving notice of the Net Proceeds Offer, holders of Securities may elect to
tender their Securities in whole or in part in integral multiples of $1,000.
To the extent holders properly tender Securities in an amount exceeding the Net
Proceeds Offer, Securities of tendering holders will be repurchased on a pro
rata basis (based upon the principal amount at maturity tendered. To the
extent that the aggregate principal amount at maturity of Securities 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 any 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.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act to the extent applicable in connection with the repurchase of
Securities pursuant to a Net Proceeds Offer.
SECTION 4.16. Limitation on Asset Swaps.
The Company will not, and will not permit any Subsidiary to,
engage in any Asset Swaps, unless: (i) at the time of entering into such Asset
Swap and immediately after giving effect to such Asset Swap, no Default or
Event of Default shall have occurred or be continuing or would occur as a
consequence thereof, (ii) in the event such Asset Swap involves an aggregate
amount in excess of $1,000,000, the terms of such Asset Swap have been approved
by a majority of the members of the Board of Directors of the Company and (iii)
in the event such Asset Swap involves an aggregate amount in excess of
$5,000,000, the Company has received a written opinion from an independent
investment banking firm of nationally recognized standing that
53
-45-
such Asset Swap is fair to the Company or such Subsidiary, as the case may be,
from a financial point of view.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation and Sale of Assets.
(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 is the surviving or continuing
Person or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company have been
transferred, shall be a corporation, partnership or trust organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and such surviving or transferee Person shall
expressly assume all the obligations of the Company under the Securities
and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(2) immediately after giving effect to such transaction and
the use of the proceeds therefrom (on a pro forma basis, including
giving effect to any Indebtedness incurred or anticipated to be incurred
in connection with such transaction), the Company (in the case of clause
(A) of the foregoing clause (1)) or the surviving or transferee Person
(in the case of clause (B) of the foregoing clause (1)) shall be 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 transactions no
Default or Event of Default shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and
Opinion of Counsel, each stating that
54
-46-
such consolidation, merger or transfer complies with this Indenture and
that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, 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. Notwithstanding the foregoing clauses (2) and (3), (a) any
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with a corporate Affiliate thereof incorporated solely for the purpose of
reincorporating the Company in another jurisdiction in the United States to
realize tax or other benefits.
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; or
(2) the Company defaults in the payment of the Accreted Value
or premium, if any, of any Securities when the same becomes due and
payable, at maturity, upon redemption or otherwise; or
55
-47-
(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 the Company receives
written notice thereof specifying such Default from the Trustee or the
Holders of at least 25% in aggregate principal amount at maturity 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.
56
-48-
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, and the
Trustee upon the request of Holders of 25% in principal amount at maturity of
the outstanding Securities shall, or the Holders of at least 25% in aggregate
principal amount at maturity of the Securities then outstanding may, declare
the Default Amount 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 New Credit Facility, shall become due and payable upon the first to
occur of an acceleration under the New Credit Facility or five Business Days
after receipt by the Company and the Representative under the New Credit
Facility 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, then the Default Amount 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. At any time after
a declaration of acceleration with respect to the Securities, the Holders of a
majority in principal amount at maturity 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 Default Amount and
any accrued interest on the Securities that has become due solely by such
declaration of acceleration, (iii) to the extent the payment of such interest
is lawful, interest (at the same rate as specified in the Securities) on
overdue installments of interest and overdue payments of Accreted Value and
premium, 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 Officers' 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, premium or interest, if any, on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
57
-49-
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 the Accreted Value of or interest on any Security as
specified in clauses (1) and (2) of Section 6.01.
SECTION 6.05 Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount at maturity 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, that 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 at maturity of
the outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be incurred in compliance with
such request which is reasonably satisfactory to the Trustee;
58
-50-
(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, premium 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
59
-51-
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, its agents and attorneys 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 Accreted Value or principal, premium 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
60
-52-
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 at maturity 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.
61
-53-
(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 10.04 and 10.05.
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.
62
-54-
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith that 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.
63
-55-
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 Accreted Value or principal of, premium 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 February 1 of each year beginning with
February 1, 1998, 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
64
-56-
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 in writing at
least 10 days in advance. The Holders of a majority in principal amount at
maturity of the outstanding Securities may remove the Trustee by so notifying
the Company and the Trustee and may appoint a successor Trustee with the
Company's consent. A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only with the successor Trustee's
acceptance of appointment as provided in this Section. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
65
-57-
(2) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(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 at maturity 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 at maturity 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 Xxxxxx, 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.
66
-58-
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
$100,000,000 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
requirements 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 ("legal
67
-59-
defeasance") 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 ("covenant defeasance") 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 that, through the payment of
interest thereon and Accreted Value or principal amounts 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 amounts of Accreted Value of and interest on the
Securities on the dates such installments of interest or Accreted Value
or principal amounts 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; 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) 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;
(3) 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;
(4) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07;
(5) 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
New Credit Facility) to which the Company or any of its Subsidiaries is
a party or by which it or its property is bound;
(6) Subject to the satisfaction of the conditions set forth in
paragraphs (1) through (5) above, (a) the Company shall be deemed to
have completed legal defeasance if the Company
68
-60-
shall have delivered to the Trustee an Opinion of Counsel confirming
that (i) the Company has received from, or there has been published by,
the Internal Revenue Service, a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such legal defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance had not occurred and
(b) the Company shall be deemed to have completed covenant defeasance if
the Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that the Holders of the
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred; 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 7 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.
69
-61-
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.
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 Accreted Value or principal
amounts 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 Accreted Value or principal
amounts 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 or Accreted Value
of any Securities because of the
70
-62-
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;
(4) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(5) 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 at maturity 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 at maturity of the
71
-63-
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 defaulted interest, on any Securities or amend the
rate of accretion or amend the definition of Accreted Value;
(3) reduce the Accreted Value 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 and this Indenture;
(5) make any change in provisions of this Indenture protecting
the right of each Holder of a Security to receive payment of principal
of, premium 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 at maturity 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.
72
-64-
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 at maturity 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.
73
-65-
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.
SECTION TEN
MISCELLANEOUS
SECTION 10.01 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 10.02 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:
74
-66-
if to the Company:
Capstar Broadcasting Partners, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx and
Xxxxxxx 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.
75
-67-
SECTION 10.03 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 10.04 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 10.05 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.
76
-68-
SECTION 10.06 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 10.07 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 10.08 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 10.09 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 10.10 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.
77
-69-
SECTION 10.11 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 10.12 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 10.13 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.
78
-70-
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.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By: /s/ XXXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx
Title:
79
-71-
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
80
-72-
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE
CASE OF THE FOREGOING CAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE ISSUER AND THE TRANSFER AGENT, THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
81
-73-
CAPSTAR BROADCASTING PARTNERS, INC.
The Security is issued with original issue discount for purposes
of Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of
principal amount of this Security, the issue price is $542.54 and the amount of
original issue discount is $457.46. The issue date of this Security is
February 20, 1997 and the yield to maturity is 12 3/4%.
12 3/4% Senior Discount Note due 2009, Series A
No. $
CAPSTAR BROADCASTING PARTNERS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to CEDE & CO. or registered
assigns, the principal sum of Dollars, on February
1, 2009.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
CAPSTAR BROADCASTING PARTNERS, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
82
-74-
Trustee's Certificate of Authentication
This is one of the 12 3/4% Senior Discount Notes due 2009
referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
---------------------------------
Authorized Signatory
83
-75-
(REVERSE OF SECURITY)
12 3/4% Senior Discount Note due 2009
1. Interest. CAPSTAR BROADCASTING PARTNERS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on each February 1 and August 1 (each an
"Interest Payment Date") and at stated maturity, commencing August 1, 2002.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Security shall not bear or accrue interest
until February 1, 2002, except in the case of a default in payment of principal
and/or premium, if any, upon acceleration, redemption or purchase and, in such
case, the overdue principal and any overdue premium shall bear interest at the
rate of 12 3/4% per annum (compounded semiannually on each February 15 and
August 15) (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for. To the extent, but only to the extent, interest on amounts in
default constituting original issue discount prior to February 1, 2002 is not
permitted by law, original issue discount shall continue to accrete until paid
or duly provided for. On or after February 1, 2002, interest on overdue
principal and premium, if any, and, to the extent permitted by law, on overdue
installments of interest will accrue, until the principal and premium, if any,
is paid or duly provided for, at the rate of 12 3/4% per annum. Interest on
any overdue principal or premium shall be payable on demand.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the 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, premium and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender"). However, the Company may pay principal, premium
and interest by its check payable in such U.S. Legal Tender. The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company
of Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying
84
-76-
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. The Company issued the Securities under an
Indenture, dated as of February 20, 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 3/4% Senior Discount Notes due 2009 (the
"Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount at maturity to $277,000,000, 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. 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 February 1, 2002, at the following redemption prices
(expressed as percentages of Accreted Value thereof on the applicable
redemption date) if redeemed during the twelve-month period commencing on
February 1 of the year set forth below, plus, in each case, accrued and unpaid
interest, if any, thereon to the redemption date:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106.375%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.313%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.250%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.188%
2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.125%
2007 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) In addition, prior to February 1, 2001, the Company may, at
its option, use the net cash proceeds of one or more Public Equity Offerings or
Major Asset Sales to redeem up to 25% of the principal amount at maturity of
the Securities at a redemption price of 112.75% of the Accreted Value thereof
at the redemption date of the Securities so redeemed; provided, however, that
after any such redemption, at least 75% in aggregate principal amount at
maturity of Securities would remain outstanding immediately after giving effect
to such redemption. Any such redemption will be required to occur on or prior
to the date that is one year after the receipt
85
-77-
by the Company of the proceeds of a Public Equity Offering or Major Asset Sale.
The Company shall effect such redemption on a pro rata basis.
(c) In addition, prior to February 1, 2002, upon the
occurrence of a Change of Control, the Company will have the option to redeem
the Securities in whole but not in part (a "Change of Control Redemption") at a
redemption price equal to 100% of the Accreted Value thereof at the redemption
date of the Securities plus the Applicable Premium. In order to effect a
Change of Control Redemption, the Company must send a notice to each holder of
Securities, which notice shall govern the terms of the Change of Control
Redemption. Such notice must be mailed to holders of Securities within 30 days
following the date the Change of Control occurred (the "Change of Control
Redemption Date") and state that the Company is effecting a Change of Control
Redemption in lieu of a Change of Control Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the Accreted
Value of such Security and (ii) the excess of (A) the present value at such
time of the redemption price of such Security at February 1, 2002 (such
redemption price being described in paragraph (a) above) computed using a
discount rate equal to the Treasury Rate plus 150 basis points over (B) the
principal amount at maturity of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior
to the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source or similar market data)) most
nearly equal to the period from the Change of Control Redemption Date to
February 1, 2002; provided, however, that if the period from the Change of
Control Redemption Date to February 1, 2002 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given
except that if the period from the Change of Control Redemption Date to
February 1, 2002 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
6. Notice of Redemption. Notice of redemption will be mailed
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.
Securities in denominations larger than $1,000 may be redeemed in part.
86
-78-
7. 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 Accreted Value thereof on the Change of Control
Payment Date if the Change of Control Payment Date is on or before February 1,
2002 and (ii) 101% of the principal amount at maturity thereof, plus, without
duplication, all accrued and unpaid interest, if any, to the Change of Control
Payment Date if such Change of Control Payment Date is after February 1, 2002.
Holders of Securities that 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.
8. 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
Accreted Value thereof, plus accrued interest to the date of repurchase.
9. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a
Security shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for 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.
12. 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, premium 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, premium and interest on
the Securities).
87
-79-
13. 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 at maturity 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 at maturity 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.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness and issue Disqualified Capital Stock,
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.
15. 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.
16. 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 at maturity of Securities then outstanding 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 at maturity 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.
17. 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
88
-80-
otherwise deal with the Company, its Subsidiaries, Unrestricted Subsidiaries or
their respective Affiliates as if it were not the Trustee.
18. 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.
19. Authentication. This Security shall not be valid until
the Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
20. 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.
21. 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).
22. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
23. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated upon the occurrence of certain events
to consummate an exchange offer pursuant to which the Holder of this Security
shall have the right to exchange this Series A Security for the Company's 12
3/4% Senior Discount Notes due 2009, Series B, which have been registered under
the Securities Act, in like principal amount at maturity and having terms
identical in all material respects as the Series A Securities. The Holders
shall be entitled to receive certain additional interest payments in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
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.
89
-81-
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. Requests may be made to:
CAPSTAR BROADCASTING PARTNERS, INC., 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000.
90
-82-
[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: __________________________________________________
91
-83-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state
the amount: $_____________
Date: ___________________ Your Signature: _______________________________
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee: ____________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
92
-84-
EXHIBIT B
CAPSTAR BROADCASTING PARTNERS, INC.
The Security is issued with original issue discount for purposes of Section
1271 et seq. of the Internal Revenue Code. For each $1,000 of principal amount
of this Security, the issue price is $542.54 and the amount of original issue
discount is $457.46. The issue date of this Security is February 20, 1997 and
the yield to maturity is 12 3/4%.
12 3/4% Senior Discount Note due 2009, Series B
No. 1 $
CAPSTAR BROADCASTING PARTNERS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to or registered
assigns, the principal sum of Dollars, on February 1, 2009.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
CAPSTAR BROADCASTING PARTNERS, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
93
-85-
Trustee's Certificate of Authentication
This is one of the 12 3/4% Senior Discount Notes due 2009
referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
---------------------------------
Authorized Signatory
94
-86-
(REVERSE OF SECURITY)
12 3/4% Senior Discount Note due 2009
1. Interest. CAPSTAR BROADCASTING PARTNERS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on each February 1 and August 1 (each an
"Interest Payment Date") and at stated maturity, commencing August 1, 2002.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Security shall not bear or accrue interest
until February 1, 2002, except in the case of a default in payment of principal
and/or premium, if any, upon acceleration, redemption or purchase and, in such
case, the overdue principal and any overdue premium shall bear interest at the
rate of 12 3/4% per annum (compounded semiannually on each February 15 and
August 15) (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for. To the extent, but only to the extent, interest on amounts in
default constituting original issue discount prior to February 1, 2002 is not
permitted by law, original issue discount shall continue to accrete until paid
or duly provided for. On or after February 1, 2002, interest on overdue
principal and premium, if any, and, to the extent permitted by law, on overdue
installments of interest will accrue, until the principal and premium, if any,
is paid or duly provided for, at the rate of 12 3/4% per annum. Interest on
any overdue principal or premium shall be payable on demand.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the 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, premium and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender"). However, the Company may pay principal, premium
and interest by its check payable in such U.S. Legal Tender. The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company
of Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying
95
-87-
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. The Company issued the Securities under an
Indenture, dated as of February 20, 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 3/4% Senior Discount Notes due 2009 (the
"Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount at maturity to $277,000,000, 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. 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 February 1, 2002, at the following redemption prices
(expressed as percentages of Accreted Value thereof on the applicable
redemption date) if redeemed during the twelve-month period commencing on
February 1 of the year set forth below, plus, in each case, accrued and unpaid
interest, if any, thereon to the redemption date:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106.375%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.313%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.250%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.188%
2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.125%
2007 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) In addition, prior February 1, 2001, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings or
Major Asset Sales to redeem up to 25% of the principal amount at maturity of
the Securities at a redemption price of 112.75% of the Accreted Value thereof
at the redemption date of the Securities so redeemed; provided, however, that
after any such redemption, at least 75% in aggregate principal amount at
maturity of Securities would remain outstanding immediately after giving effect
to such redemption. Any such redemption will be required to occur on or prior
to the date that is one year after the receipt
96
-88-
by the Company of the proceeds of a Public Equity Offering or Major Asset Sale.
The Company shall effect such redemption on a pro rata basis.
(c) In addition, prior to February 1, 2002, upon the
occurrence of a Change of Control, the Company will have the option to redeem
the Securities in whole but not in part (a "Change of Control Redemption") at a
redemption price equal to 100% of the Accreted Value thereof at the redemption
date of the Securities plus the Applicable Premium. In order to effect a
Change of Control Redemption, the Company must send a notice to each holder of
Securities, which notice shall govern the terms of the Change of Control
Redemption. Such notice must be mailed to holders of Securities within 30 days
following the date the Change of Control occurred (the "Change of Control
Redemption Date") and state that the Company is effecting a Change of Control
Redemption in lieu of a Change of Control Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the Accreted
Value of such Security and (ii) the excess of (A) the present value at such
time of the redemption price of such Security at February 1, 2002 (such
redemption price being described in paragraph (a) above) computed using a
discount rate equal to the Treasury Rate plus 150 basis points over (B) the
principal amount at maturity of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior
to the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source or similar market data)) most
nearly equal to the period from the Change of Control Redemption Date to
February 1, 2002; provided, however, that if the period from the Change of
Control Redemption Date to February 1, 2002 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one- twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given
except that if the period from the Change of Control Redemption Date to
February 1, 2002 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
6. Notice of Redemption. Notice of redemption will be mailed
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.
Securities in denominations larger than $1,000 may be redeemed in part.
97
-89-
7. 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 Accreted Value thereof on the Change of Control
Payment Date if the Change of Control Payment Date is on or before February 1,
2002 and (ii) 101% of the principal amount at maturity thereof, plus, without
duplication, all accrued and unpaid interest, if any, to the Change of Control
Payment Date if such Change of Control Payment Date is after February 1, 2002.
Holders of Securities that 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.
8. 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
Accreted Value thereof, plus accrued interest to the date of repurchase.
9. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a
Security shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for 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.
12. 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, premium 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, premium and interest on
the Securities).
98
-90-
13. 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 at maturity 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 at maturity 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.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness and issue Disqualified Capital Stock,
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.
15. 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.
16. 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 at maturity of Securities then outstanding 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 at maturity 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.
17. 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
99
-91-
otherwise deal with the Company, its Subsidiaries, Unrestricted Subsidiaries or
their respective Affiliates as if it were not the Trustee.
18. 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.
19. Authentication. This Security shall not be valid until
the Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
20. 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.
21. 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).
22. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
23. 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. Requests may be made to:
CAPSTAR BROADCASTING PARTNERS, INC., 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000.
100
-92-
[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: _________________________________
101
-93-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state
the amount: $_____________
Date: ___________________ Your Signature:______________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee: _________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
102
-94-
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
103
-95-
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 12 3/4% Senior Discount Notes due 2009, Series A and 12 3/4%
Senior Discount Notes due 2009, Series B (the "Securities"), of
Capstar Broadcasting Partners, Inc.
This Certificate relates to $_______ principal amount at maturity
of Securities held in the form of* ___ a beneficial interest in a Global
Security or* _______ physical securities by ______ (the "Transferor").
The Transferor:*
/ / has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a physical security or physical securities in definitive, registered
form of authorized denominations and an aggregate number equal to its
beneficial interest in such Global Security (or the portion thereof indicated
above); or
/ / has requested that the Registrar by written order to exchange or
register the transfer of a physical security or physical securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 2.16 of such
Indenture, and that the transfer of this Security does not require registration
under the Securities Act of 1933, as amended (the "Act") because*:
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
/ / Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraphs (a)(1), (2), (3) or
(7) of Rule 501 under the Act.
104
-96-
/ / Such Security is being transferred in reliance on Regulation S
under the Act.
/ / Such Security is being transferred in reliance on Rule 144 under
the Act.
/ / Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act
other than Rule 144A or Rule 144 under the Act to a person other than an
institutional "accredited investor."
______________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
[Authorized Signatory]
Date: _____________
*Check applicable box.
105
-97-
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
Capstar Broadcasting Partners, Inc.
c/o U.S. Trust Company of Texas, N.A.
Dear Sirs:
This certificate is delivered to request a transfer of $ million
in principal amount at maturity of 12 3/4% Senior Discount Notes due 2009 (the
"Notes") of Capstar Broadcasting Partners, Inc. (the "Company"). Upon
transfer, the Notes would be registered in the name of the new beneficial owner
as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"Securities Act")) purchasing Notes for our own account or for the account of
such an institutional "accredited investor" and we are acquiring the Notes not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the shares of the Notes and we invest in or purchase
securities similar to the Notes in the normal course of our business. We and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
2. We understand that the shares of the Notes have not been
registered under the Securities Act and, unless so registered, may not be sold
except as permitted in the following sentence. We agree on our own behalf and
on behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date which is three years
after the later of the date of original issue and the last date on which the
Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale
106
-98-
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under
the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, that
is purchasing for its own account or for the account of such an institutional
"accredited investor," or (f) pursuant to any other available exemption from
the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of any of the
Notes is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the U.S.
Trust Company of Texas, N.A. (the "Trustee"), which shall provide, among other
things, that the transferee is an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and
that it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any offer, sale or
other transfer prior to the Resale Restriction Termination Date of the Notes
pursuant to clause (d), (e) or (f) above to require the delivery of an opinion
of counsel, certificates and/or other information satisfactory to the Company
and the Transfer Agent.
TRANSFEREE:
By: ____________________________
