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RADIO ONE, INC.,
Issuer
12% Senior Subordinated Notes Due 2004
------------
INDENTURE
Dated as of May 15, 1997
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UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) .............................. 7.10
(a)(2) .............................. 7.10
(a)(3) .............................. N.A.
(a)(4) .............................. N.A.
(b) .............................. 7.08; 7.10
(c) .............................. N.A.
311(a) .............................. 7.11
(b) .............................. 7.11
(c) .............................. N.A.
312(a) .............................. 2.05
(b) .............................. 13.03
(c) .............................. 13.03
313(a) .............................. 7.06
(b)(1) .............................. N.A.
(b)(2) .............................. 7.06
(c) .............................. 13.02
(d) .............................. 7.06
314(a) .............................. 4.02;
4.14; 13.02
(b) .............................. N.A.
(c)(1) .............................. 13.04
(c)(2) .............................. 13.04
(c)(3) .............................. N.A.
(d) .............................. N.A.
(e) .............................. 13.05
(f) .............................. 4.14
315(a) .............................. 7.01
(b) .............................. 7.05; 13.02
(c) .............................. 7.01
(d) .............................. 7.01
(e) .............................. 6.11
316(a)(last sentence) .............................. 13.06
(a)(1)(A) .............................. 6.05
(a)(1)(B) .............................. 6.04
(a)(2) .............................. N.A.
(b) .............................. 6.07
317(a)(1) .............................. 6.08
(a)(2) .............................. 6.09
(b) .............................. 2.04
318(a) .............................. 13.01
N.A. means Not Applicable.
----------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1 Page Page
----
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions ..................................... 1
SECTION 1.02. Other Definitions ............................... 23
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act ........................ 23
SECTION 1.04. Rules of Construction ........................... 24
ARTICLE 2
The Securities
--------------
SECTION 2.01. Form and Dating ................................ 24
SECTION 2.02. Execution and Authentication ................... 25
SECTION 2.03. Registrar and Paying Agent ..................... 25
SECTION 2.04. Paying Agent To Hold Money in Trust............. 26
SECTION 2.05. Securityholder Lists ........................... 27
SECTION 2.06. Transfer and Exchange .......................... 27
SECTION 2.07. Replacement Securities ......................... 28
SECTION 2.08. Outstanding Securities ......................... 28
SECTION 2.09. Temporary Securities ........................... 29
SECTION 2.10. Cancellation ................................... 29
SECTION 2.11. Defaulted Interest ............................. 29
SECTION 2.12. CUSIP Number ................................... 29
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee ............................. 30
SECTION 3.02. Selection of Securities To Be
Redeemed ............................ 30
SECTION 3.03. Notice of Redemption ........................... 31
SECTION 3.04. Effect of Notice of Redemption ................. 32
SECTION 3.05. Deposit of Redemption Price .................... 32
SECTION 3.06. Securities Redeemed in Part .................... 32
2
ARTICLE 4
Covenants
----------
SECTION 4.01. Payment of Securities .......................... 32
SECTION 4.02. SEC Reports .................................... 33
SECTION 4.03. Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock ..... 33
SECTION 4.04. Limitation on Senior Subordinated
Debt ................................ 35
SECTION 4.05. Limitation on Restricted Payments............... 35
SECTION 4.06. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries ....................... 38
SECTION 4.07. Limitation on Certain Asset Sales .............. 40
SECTION 4.08. Transactions with Affiliates ................... 41
SECTION 4.09. Limitation on Restricted Subsidiary Equity
Interests ................................. 42
SECTION 4.10. Change of Control .............................. 43
SECTION 4.11. Limitation on Asset Swaps ...................... 43
SECTION 4.12. Future Subsidiary Guarantors ................... 44
SECTION 4.13. Compliance Certificate ......................... 44
SECTION 4.14. Further Instruments and Acts ................... 44
SECTION 4.15. Ratings for Notes .............................. 44
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer
Assets ............................... 45
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default .............................. 47
SECTION 6.02. Acceleration ................................... 49
SECTION 6.03. Other Remedies ................................. 50
SECTION 6.04. Waiver of Past Defaults ........................ 50
SECTION 6.05. Control by Majority ............................ 50
SECTION 6.06. Limitation on Suits ............................ 50
SECTION 6.07. Rights of Holders to Receive Payment ........... 51
SECTION 6.08. Collection Suit by Trustee ..................... 51
SECTION 6.09. Trustee May File Proofs of Claim ............... 51
3
SECTION 6.10. Priorities ..................................... 52
SECTION 6.11. Undertaking for Costs .......................... 52
SECTION 6.12. Waiver of Stay or Extension Laws ............... 53
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee .............................. 53
SECTION 7.02. Rights of Trustee .............................. 54
SECTION 7.03. Individual Rights of Trustee ................... 55
SECTION 7.04. Trustee's Disclaimer ........................... 56
SECTION 7.05. Notice of Defaults ............................. 56
SECTION 7.06. Reports by Trustee to Holders .................. 56
SECTION 7.07. Compensation and Indemnity ..................... 56
SECTION 7.08. Replacement of Trustee ......................... 57
SECTION 7.09. Successor Trustee by Merger .................... 58
SECTION 7.10. Eligibility; Disqualification .................. 59
SECTION 7.11. Preferential Collection of Claims
Against Company ..................... 59
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities;
Defeasance .......................... 59
SECTION 8.02. Conditions to Defeasance ....................... 61
SECTION 8.03. Application of Trust Money ..................... 62
SECTION 8.04. Repayment to Company ........................... 62
SECTION 8.05. Indemnity for Government
Obligations ......................... 62
SECTION 8.06. Reinstatement .................................. 62
ARTICLE 9
Amendments
----------
SECTION 9.01. Without Consent of Holders ..................... 63
SECTION 9.02. With Consent of Holders ........................ 64
SECTION 9.03. Compliance with Trust Indenture ................ 65
SECTION 9.04. Revocation and Effect of Consents
and Waivers ......................... 65
SECTION 9.05. Notation on or Exchange of
Securities .......................... 66
SECTION 9.06. Trustee To Sign Amendments ..................... 66
4
SECTION 9.07. Payment for Consent ............................ 66
ARTILCE 10
Subordination
-------------
SECTION 10.01. Agreement to Subordinate ....................... 67
SECTION 10.02. Liquidation, Dissolution, Bankruptcy ........... 67
SECTION 10.03. Default on Senior Indebtedeness ................ 67
SECTION 10.04. Acceleration of Payment of Securites ........... 69
SECTION 10.05. When Distribution Must Be Paid Over ............ 69
SECTION 10.06. Subrogation .................................... 69
SECTION 10.07. Relative Rights ................................ 70
SECTION 10.08. Subordination May Not Be Impared By
Company ............................ 70
SECTION 10.09. Rights of Trustee and Paying
Agent .............................. 70
SECTION 10.10. Distribution or Notice to
Representative ..................... 71
SECTION 10.11. Article 10 Not to Prevent Events
of Defaults or Limit Right
To Accelerate ...................... 71
SECTION 10.12. Trust Moneys Not Subordinate ................... 71
SECTION 10.13. Trustee Entitled to Rely ....................... 72
SECTION 10.14. Trustee to Effectuate Subordination ............ 72
SECTION 10.15. Trustee Not Fiduciary for Holders
of Senior Debt ..................... 72
SECTION 10.16. Reliance by Holders of Senior Debt
on Subordination Provisions ........ 73
ARTICLE 11
Subsidiary Guaranties
---------------------
SECTION 11.01. Guaranties ..................................... 73
SECTION 11.02. Limitation on Liability ........................ 75
SECTION 11.03. Successors and Assigns ......................... 76
SECTION 11.04. No Waiver ...................................... 76
SECTION 11.05. Modification ................................... 76
SECTION 11.06. Release of Subsidiary Guarantor ................ 76
5
ARTICLE 12
Subordination of Subsidiary Guranties
-------------------------------------
SECTION 12.01. Agreement to Subordinate ....................... 77
SECTION 12.02. Liquidation, Dissolution, Bankruptcy ........... 77
SECTION 12.03. Default on Senior Debt of
Subsidiary Guarantor .............. 78
SECTION 12.04. Demand for Payment ............................. 78
SECTION 12.05. When Distribution Must Be Paid Over ............ 79
SECTION 12.06. Subrogation .................................... 79
SECTION 12.07. Relative Rights ................................ 79
SECTION 12.08. Subordination May Not Be Impaired
by Company ........................ 79
SECTION 12.09. Rights of Trustee and Paying Agent ............. 80
SECTION 12.10. Distribution or Notice to
Representation .................... 81
SECTION 12.11. Article 12 Not To Prevent Defaults
Under a Subsidiary Guarantee or
Limit Right to Demand Payment ..... 81
SECTION 12.12. Trustee Entitled to Rely ....................... 81
SECTION 12.13. Trustee To Effectuate Subordination ............ 82
SECTION 12.14. Trustee Not Fiduciary for Holders
of Senior Debt of Subsidiary
Guarantor ......................... 82
SECTION 12.15. Reliance by Holders of Senior Debt
on Subordination Provisions ........ 82
ARTICLE 13
Miscellaneous
-------------
SECTION 13.01. Trust Indenture Act Controls ................... 82
SECTION 13.02. Notices ........................................ 83
SECTION 13.03. Communication by Holders with Other
Holders ............................ 83
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent ............... 83
SECTION 13.05. Statements Required in Certificate
or Opinion ......................... 84
SECTION 13.06. When Securities Disregarded .................... 84
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar .......................... 85
SECTION 13.08. Legal Holidays ................................. 85
SECTION 13.09. Governing Law .................................. 85
SECTION 13.10. No Recourse Against Others ..................... 85
6
SECTION 13.11. Successors ..................................... 85
SECTION 13.12. Multiple Originals ............................. 85
SECTION 13.13. Table of Contents; Headings .................... 85
Exhibit A - Form of Security
Rule 144A/Regulation S Appendix
INDENTURE dated as of May 15, 1997, among
RADIO ONE, INC., a Delaware corporation (the
"Company"), RADIO ONE LICENSES, INC., as guarantor
("License Sub"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York trust company (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 12%
Senior Subordinated Notes Due 2004 (the "Initial Securities") and, if and when
issued pursuant to a registered exchange for Initial Securities, the Company's
12% Senior Subordinated Notes Due 2004 (the "Exchange Securities") and, if and
when issued pursuant to a private exchange for Initial Securities, the Company's
12% Senior Subordinated Notes Due 2004 (the "Private Exchange Securities",
together with the Exchange Securities and the Initial Securities, the
"Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accreted Value" means, as of any date (the "Specified Date"),
the amount provided below for each $1,000 principal amount of the Securities:
(i) if the Specified Date occurs on one of the following dates
(each, a "Semi-Annual Accrual Date"), the Accreted Value will equal the
amount set forth below for such Semi-Annual Accrual Date:
Semi-Annual Accrual Date Accreted Value
------------------------ --------------
November 15, 1997 $894.69
May 15, 1998 913.37
November 15, 1998 933.17
May 15, 1999 954.17
November 15, 1999 976.42
May 15, 2000 1,000.00
(ii) if the Specified Date occurs before the first Semi-Annual Accrual
Date, the Accreted Value will equal the sum of (a) the original issue
price for each $1,000 principal amount of the Securities and (b) an
amount equal to the product of (1) the Accreted Value for the first
Semi-Annual Accrual Date less such original issue price, multiplied by
(2) a fraction, the numerator of which is the number of days from the
Issue Date to the Specified Date, using a 360-day year of 12 30-day
2
months, and the denominator of which is the number of days elapsed from
the Issue Date to the first Semi-Annual Accrual Date, using a 360-day
year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding such Specified
Date and (b) an amount equal to the product of (1) the Accreted Value
for the immediately following Semi-Annual Accrual Date less the Accreted
Value for the immediately preceding Semi-Annual Accrual Date multiplied
by (2) a fraction, the numerator of which is the number of days from the
immediately preceding Semi-Annual Accrual Date to the Specified Date,
using a 360-day year of 12 30-day months, and the denominator of which
is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merges
with or into, or becomes a Subsidiary of, such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control of" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") any Person means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means NationsBank of Texas, N.A., in its capacity as
agent for the lenders under the Credit Agreement.
"Asset Swap" means the execution of a definitive agreement,
subject only to FCC approval and other customary
3
closing conditions, that the Company in good faith believes will be satisfied,
for a substantially concurrent purchase and sale, or exchange, of Broadcast
Assets between the Company or any of its Wholly Owned Restricted Subsidiaries
and another Person or group of Affiliated Persons; provided that any amendment
to or waiver of any closing condition which individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
"Broadcast Assets" means assets used or useful in the
ownership or operation of an AM or FM radio station.
"Broadcast License" means an authorization issued by the FCC
for the operation of an AM or FM radio station.
"Capital Lease Obligation" means, at any time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on the
balance sheet in accordance with GAAP.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
less than one year from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of less than one year from the date
of acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Xxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
immediately above, (v) commercial paper having the highest rating obtainable for
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services and in
each case maturing within nine months after the date of acquisition and (vi)
interests in money market mutual funds which invest solely in assets or
securities of the type described in clauses (i)-(v) immediately above.
"Change of Control" means the occurrence of any of the
following:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Company's assets to any
Person or group (as
4
such term is used in Section 13(d)(3) of the Exchange Act) (other than
any or all of the Principal Shareholders or their Related Parties);
(ii) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(iii) prior to the first Public Equity Offering of the Company, either
(x) the Principal Shareholders and their Related Parties cease to be the
beneficial owner of at least 35% of the voting power of the voting stock
of the Company or (y) any Person or group (as such term is used in
Section 13(d)(3) of the Exchange Act) other than the Warrantholders
acquires, directly or indirectly, 35% or more of the voting power of the
voting stock of the Company by way of merger, consolidation or
otherwise;
(iv) following the first Public Equity Offering of the Company, any
Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than one or more of the Principal Shareholders and
their Related Parties) acquires, directly or indirectly, 35% or more of
the voting power of the voting stock of the Company by way of merger or
consolidation or otherwise; provided, however, that such acquisition
will not constitute a "Change of Control" (x) in the case of a Person or
group consisting of the Warrantholders, if and for so long as the
Principal Shareholders and Related Parties, individually or
collectively, own at least 30% of the voting power of the voting stock
of the Company and have the right or ability by voting power, contract
or otherwise to elect or designate for electing a majority of the board
of directors of the Company, or (y) in the case of any Person or group
not including any Warrantholder, unless or until such Person or group
owns, directly or indirectly, more of the voting power of the voting
stock of the Company than the Principal Shareholders and their Related
Parties; or
(v) the Continuing Directors cease for any reason (other than as a
result and during the continuance of a default under the Warrant
Agreement entitling the Warrantholders to appoint directors) to
constitute a majority of the directors of the Company then in office.
For purposes of this definition, any transfer of an Equity
Interest of an entity that was formed for the purpose of acquiring voting stock
of the Company shall be
5
deemed to be a transfer of such portion of such voting stock as corresponds to
the portion of the equity of such entity that has been so transferred.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Cash Interest Expense" means, with respect to
any period, the amount of Consolidated Interest Expense for such period to the
extent it represents cash disbursements for such purpose by the Company and its
Restricted Subsidiaries during such period.
"Consolidated Interest Expense" means, without duplication,
with respect to any period, the sum of (a) the interest expense and all
capitalized interest of the Company and its Restricted Subsidiaries for such
period, on a consolidated basis, including, without limitation, (i) amortization
of debt discount, (ii) the net cost under interest rate contracts (including
amortization of debt discount), (iii) the interest portion of any deferred
payment obligation and (iv) accrued interest, plus (b) the interest component of
any Capital Lease Obligation paid or accrued or scheduled to be paid or accrued
by the Company during such period, determined on a consolidated basis in
accordance with GAAP; provided, however, that any dividends with respect to the
Senior Preferred Stock shall not be considered for purposes of this definition.
"Continuing Director" means any member of the Board of
Directors of the Company who (i) is a member of that Board of Directors on the
Issue Date or (ii) was nominated for election by either (a) one or more of the
Principal Shareholders (or a Related Party thereof) or (b) the Board of
Directors a majority of whom were directors at the Issue Date or whose election
or nomination for election was previously approved by one or more of the
Principal Shareholders or such directors.
"Credit Agreement" means the credit agreement to be entered
into between the Company and NationsBank of Texas, N.A. individually, as a
lender, and as agent for the lenders from time to time party thereto.
6
"Debt to EBITDA Ratio" means, with respect to any date, the
ratio of (a) the aggregate principal amount of all outstanding Indebtedness of
the Company (excluding Hedging Obligations, including interest rate swap
obligations, that are incurred in the ordinary course of business for the
purpose of fixing or hedging interest rate risk with respect to any floating
rate Indebtedness which Indebtedness is permitted by the terms of the Indenture
to be outstanding) and its Restricted Subsidiaries as of such date on a
consolidated basis, plus the aggregate liquidation preference or redemption
amount of all outstanding Disqualified Stock of the Company and its Restricted
Subsidiaries as of such date (excluding any such Disqualified Stock held by the
Company of a Wholly Owned Restricted Subsidiary), to (b) EBITDA of the Company
and its Restricted Subsidiaries on a consolidated basis for the four most recent
full fiscal quarters ending immediately prior to such date, determined on a pro
forma basis after giving effect to each acquisition or disposition of assets
made by the Company and its Restricted Subsidiaries from the beginning of such
four-quarter period through such date as if such acquisition or disposition had
occurred at the beginning of such four-quarter period.
"Default" means any event that is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"Designated Senior Debt" means (i) the Senior Bank Debt and
(ii) any Senior Debt of the Company and the Subsidiary Guarantors permitted
under the Indenture, the principal amount (or accreted value in the case of
Indebtedness issued at a discount) of which is $10 million or more at the time
of designation by the Company (or otherwise available under a committed
facility) or a Subsidiary Guarantor, as the case may be, in a written instrument
delivered to the Trustee.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Stock" means any Equity Interest that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder
7
thereof (other than upon a Change of Control of the Company in circumstances
where the holders of the Securities would have similar rights), in whole or in
part on or prior to one year after the stated maturity of the Securities. The
amount of Disqualified Stock shall be the greater of the liquidation preference
or mandatory or optional redemption price thereof.
"EBITDA" of a specified Person means, for any period, the
consolidated net income of such specified Person and its Restricted Subsidiaries
for such period:
(a) plus (without duplication and to the extent involved in computing
such consolidated net income) (i) interest expense, (ii) provision for
taxes on income or profits and (iii) depreciation and amortization and
other non-cash items (including amortization of goodwill and other
intangibles and barter expenses); and
(b) minus (without duplication and to the extent involved in computing
such consolidated net income) (i) any gains (or plus losses), together
with any related provision for taxes on such gains (or losses), realized
in connection with any sale of assets (including, without limitation,
dispositions pursuant to sale and leaseback transactions), (ii) any
non-cash or extraordinary gains (or plus losses), together with any
related provision for taxes on such extraordinary gains (or losses),
(iii) the amount of any cash payments related to non-cash charges that
were added back in determining EBITDA in any prior period and (iv)
barter revenues,
provided, however, that
(1) the net income of any other Person that is accounted for by the
equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to such specified
Person whose EBITDA is being determined or a Wholly Owned Restricted
Subsidiary thereof;
(2) the net income of any other Person that is a Restricted Subsidiary
(other than a Wholly Owned Restricted Subsidiary) or is an Unrestricted
Subsidiary shall be included only to the extent of the amount of
dividends or distributions paid in cash to such specified Person whose
EBITDA is being determined or a Wholly Owned Restricted Subsidiary
thereof; provided that for purposes of Section 4.05 only, any such
8
dividend or distribution shall be excluded to the extent it has already
been included under clause (a)(3)(D) thereof;
(3) the net income (loss) of any other Person acquired after the Issue
Date in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded (to the extent otherwise
included); and
(4) gains or losses from sales of assets other than sales of assets
acquired and held for resale in the ordinary course of business shall be
excluded (to the extent otherwise included).
All of the foregoing will determined in accordance with GAAP.
"Equity Interests" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity, and including, in the case of a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness" means any outstanding Indebtedness of
the Company and its Restricted Subsidiaries as of the Issue Date, including the
Securities.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy. All determinations in the
covenants of Fair Market Value shall be made by the Board of Directors of the
Company and shall be evidenced by a resolution of such Board set forth in an
Officers' Certificate delivered to the Trustee, upon which the Trustee may
conclusively rely.
"FCC" means the Federal Communications Commission and any
successor agency.
9
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Persons against fluctuations
in interest rates.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Equity Interests
of a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning. The accretion of principal
of a non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, whether or
not contingent, (i) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current trade
10
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person, (iv) all
Hedging Obligations of such Person, (v) all liabilities of the type referred to
in clause (i), (ii) or (iii) immediately above which are secured by any Lien on
any property owned by such Person even if such Person has not assumed or
otherwise become liable for the payment thereof to the extent of the value of
the property subject to such Lien, and (vi) to the extent not otherwise
included, any guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (i) through (v) above; provided, however,
in no event shall Senior Preferred Stock (including any and all accrued
dividends thereon) be considered "Indebtedness."
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary", the definition of "Restricted Payment"
and Section 4.05, (i) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such Subsidiary
is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the
11
time of such transfer, in each case as determined in good faith by the Board of
Directors.
"Issue Date" means the date on which the Securities are
originally issued.
"License Subsidiary" means Radio One Licenses, Inc., a
Delaware corporation and a wholly owned subsidiary of the Company.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of, or agreement to give, any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).
"Net Cash Proceeds", with respect to any issuance or sale of
Equity Interests, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Proceeds" means, with respect to any Asset Sale by any
Person, the aggregate cash proceeds received by such Person in respect of such
Asset Sale, which amount is equal to the excess, if any, of:
(i) the cash received by such Person (including any cash payments
received by way of deferred payment pursuant to, or monetization of, a
note or installment receivable or otherwise, but only as and when
received) in connection with such Asset Sale, over
(ii) the sum of
(a) the amount of any Indebtedness including any premium
thereon and fees and expenses associated therewith which is
required to be repaid by such Person in connection with such
Asset Sale, plus
(b) the out-of-pocket expenses (1) incurred by such Person in
connection with such Asset Sale, and (2) if such Person is a
Restricted Subsidiary,
12
incurred in connection with the transfer of such amount to the
parent company or entity of such Person, plus
(c) provision for taxes, including income taxes, attributable
to the Asset Sale or attributable to required prepayments or
repayments of Indebtedness with the proceeds of such Asset
Sale, plus
(d) a reasonable reserve for the after-tax costs of any
indemnification payments (fixed or contingent) attributable to
the seller's indemnities to the purchaser in respect of such
Asset Sale undertaken by the Company or any of its Restricted
Subsidiaries in connection with such Asset Sale.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offer to Purchase" means a written offer (an "Offer") sent by
the Company to each Holder at his address appearing in the Note Register on the
date of the Offer offering to purchase in cash up to the principal amount of the
Securities specified in such Offer at a purchase price equal to 101% of the
Accreted Value of the Securities plus accrued and unpaid interest, if any.
Unless otherwise required by applicable law, the Offer shall specify an
expiration date ("Expiration Date") of the Offer to Purchase which shall be,
subject to any contrary requirements of applicable law, not less than 30 days
nor more than 60 days after the date of such Offer and a settlement date
("Purchase Date") for purchase of Securities within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be sent by first class mail by the Company or, at the Company's
request and expense, by the Trustee in the name and at the expense of the
Company. The Offer shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the documents
13
required to be filed with the Trustee pursuant to Section 4.02 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of the Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate Accreted Value of the outstanding Securities offered
to be purchased by the Company (the "Purchase Amount") and the aggregate
principal amount of the outstanding Securities offered to be purchased
by the Company pursuant to the Offer to Purchase (including, if less
than 100% of the principal amount, the manner by which such has been
determined pursuant to the Section hereof requiring the Offer to
Purchase);
(4) the purchase price to be paid by the Company (the "Purchase Price")
for each $1,000 aggregate principal amount of Securities accepted for
payment (as specified pursuant to the Indenture);
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
14
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer to
Purchase will be required to surrender such Security at the place or
places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or the Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security that the Holder tendered,
the certificate number of the Security that the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
(11) that (a) if Securities in an aggregate Accreted Value less than or
equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate Accreted Value in
excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities having an
aggregate Accreted Value equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 principal amount or integral
multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange
for the unpurchased portion of the Security so tendered.
15
Any Offer to Purchase will be governed by and effected in
accordance with the Offer for such Offer to Purchase.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom shall be the principal executive financial or accounting
officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Investment" means:
(i) any Investment in the Company or any Wholly Owned Restricted
Subsidiary:
(ii) any Investment in Cash Equivalents;
(iii) any Investment in a Person if, as a result of such Investment,
(a) such Person becomes a Wholly Owned Restricted Subsidiary of the
Company, or (b) such Person either (1) is merged, consolidated or
amalgamated with or into the Company or one of its Wholly Owned
Restricted Subsidiaries and the Company or such Wholly Owned Restricted
Subsidiary is the Surviving Person or the Surviving Person becomes a
Wholly Owned Restricted Subsidiary, or (2) transfers or conveys all or
substantially all of its assets to, or is liquidated into, the Company
or one of its Wholly Owned Restricted Subsidiaries;
(iv) any Investment in accounts and notes receivable acquired in the
ordinary course of business;
(v) notes from employees issued to the Company representing payment of
the exercise price of options to purchase capital stock of the Company;
and
(vi) Investments in Unrestricted Subsidiaries represented by Equity
Interests (other than Disqualified Stock) or assets and property
acquired in exchange for Equity Interests (other than Disqualified
Stock) of the Company.
16
Any Investment in an Unrestricted Subsidiary shall not be a
Permitted Investment unless permitted pursuant to any of clauses (i) through
(vi) above.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Equity Interests of any
Person, means Equity Interests of any class or classes (however designated) that
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Equity Interests of any other class of such
Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Principal Shareholders" means Xxxxxxxxx X. Xxxxxx and Xxxxxx
X. Xxxxxxx, III and their respective estates, executors and heirs.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in connection with the purchase
of property or assets for the business of the Company and its Restricted
Subsidiaries.
"Purchase Money Lien" means any Lien securing solely Purchase
Money Indebtedness.
"Refinancing Indebtedness" means (i) Indebtedness of the
Company or any Restricted Subsidiary incurred or given in exchange for, or the
proceeds of which are used to extend, refinance, renew, replace, substitute,
defease or refund, any other Indebtedness or Disqualified Stock incurred by the
Company in accordance with the terms of this Indenture, and (ii) Indebtedness of
any Restricted Subsidiary incurred or given in exchange for, or the proceeds of
which are used to extend, refinance, renew, replace, substitute, defease or
refund, any other Indebtedness or Disqualified Stock of the Company or any
17
Restricted Subsidiary in accordance with the terms of this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated May 14, 1997, among the Company, License Subsidiary, Credit
Suisse First Boston and NationsBank Capital Markets, Inc.
"Related Party" with respect to any Principal Shareholder
means (i) any 80% (or more) owned Subsidiary or Immediate Family Member (in the
case of an individual) of such Principal Shareholder or (ii) any Person, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such Principal Shareholder
or an Immediate Family Member, or (iii) any Person employed by the Company in a
management capacity as of the Issue Date.
"Representative" means any Vice President or other more senior
officer of the Agent in respect of the Senior Bank Debt, or any trustee, agent
or representative (if any) for any other issue of Senior Indebtedness of the
Company.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Equity Interests (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Equity Interests (other than distributions payable
solely in its Equity Interests (other than Disqualified Stock) and dividends or
distributions payable solely to the Company or a Restricted Subsidiary, and
other than pro rata dividends or other distributions made by a Subsidiary that
is not a Wholly Owned Restricted Subsidiary to minority stockholders (or owners
of an equivalent interest in the case of a Subsidiary that is an entity other
than a corporation)), (ii) the purchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company held by any Person
or of any Equity Interests of a Restricted Subsidiary held by any Affiliate of
the Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Equity Interests (other than its Equity Interests of the
Company that is not Disqualified Stock), (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Debt (other than the purchase, repurchase or other acquisition of
Subordinated Debt purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final
18
maturity, in each case due within one year of the date acquisition) or (iv) the
making of any Investment in any Person (other than a Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means any Indebtedness of the Company secured
by a Lien.
"Securities" means the Securities issued under this Indenture.
"Senior Bank Debt" means the Indebtedness Incurred pursuant to
the Credit Agreement and any other agreement that replaces the Credit Agreement
or otherwise refunds or refinances any or all of the indebtedness thereunder.
"Senior Debt":
(i) with respect to the Company, the principal of and interest
(including post-petition interest whether or not allowed as a claim) on,
and all other amounts owing in respect of Indebtedness permitted to be
incurred by the Company under the terms of this Indenture, including the
Credit Agreement, (including but not limited to reasonable fees and
expenses of counsel and all other charges, fees and expenses incurred in
connection with such Indebtedness), whether presently outstanding or
hereafter created, incurred or assumed, unless the instrument creating
or evidencing such Indebtedness or pursuant to which such Indebtedness
is outstanding expressly provides that such Indebtedness is on a parity
with or subordinated in right of payment to the Securities; and
(ii) with respect to any Subsidiary Guarantor, the principal of and
interest (including postpetition interest whether or not allowed as a
claim) on, and all other amounts owing in respect of Indebtedness
permitted to be incurred by such Subsidiary Guarantor under the terms of
this Indenture, including the Credit Agreement, (including but not
limited to reasonable fees and expenses of counsel and all other
charges, fees and expenses incurred in connection with such
Indebtedness), whether presently outstanding or hereafter created,
incurred or assumed, unless the instrument created or evidencing such
Indebtedness or
19
pursuant to which such Indebtedness is outstanding expressly provides
that such Indebtedness is on a parity with or subordinated in right of
payment to the Subsidiary Guarantee of such Subsidiary Guarantor.
Notwithstanding the foregoing, Senior Debt shall not include
(A) any Indebtedness consisting of Disqualified Stock, (B) any liability for
federal, state, local, or other taxes, (C) any Indebtedness among or between the
Company, any Restricted Subsidiary or any of their Affiliates, (D) any trade
payables and any Indebtedness to trade creditors (other than amounts accrued
thereon) incurred for the purchase of goods or materials, or for services
obtained, in the ordinary course of business or any Obligations to trade
creditors in respect of any such Indebtedness, or (E) any Indebtedness that is
incurred in violation of this Indenture.
"Senior Preferred Stock" means the Company's Series A 15%
Cumulative Redeemable Preferred Stock issued on the Issue Date.
"Senior Subordinated Indebtedness" means (i) with respect to
the Company, the Securities and any other Indebtedness of the Company that
specifically provides that such Indebtedness is to rank pari passu with the
Securities in right of payment and is not subordinated by its terms in right of
payment to any Indebtedness or other obligation of the Company which is not
Senior Debt of the Company and (ii) with respect to a Subsidiary Guarantor, its
Guarantee of the Securities and any other Indebtedness of such Subsidiary
Guarantor that specifically provides that such Indebtedness is to rank pari
passu with such Guarantee in right of payment and is not subordinated by its
terms in right of payment to any Indebtedness or other obligations of such
Subsidiary Guarantor which is not Senior Debt of such Subsidiary Guarantor.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Subordinated Debt" means any Indebtedness of the Company or a
Subsidiary Guarantor if the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding expressly provides that
such Indebtedness is (i) if incurred by the Company, subordinated in right of
payment to the Securities, or (ii) if incurred by a Subsidiary Guarantor,
subordinated in right of payment to the Subsidiary Guarantee of such Subsidiary
Guarantor.
20
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of all Voting Equity Interests entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees or other governing body thereof is at the time owned or
controlled by such Person (regardless of whether such Equity Interests are owned
directly or through one or more other Subsidiaries of such Person or a
combination thereof).
"Subsidiary Guarantee" means the guarantee by a Subsidiary
Guarantor of the Company's obligations with respect to the Securities contained
in Article 11 hereof.
"Subsidiary Guarantors" means License Subsidiary and each
other Subsidiary of the Company that, pursuant to the terms hereof, executes a
supplemental indenture in a form reasonably satisfactory to the Trustee and
thereby becomes bound under Article 11 hereof.
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as otherwise
provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters and with respect to the Senior Bank
Debt as notified to the Agent in writing from time to time by the Trustee.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below) and
(ii) any direct or indirect Subsidiary of an Unrestricted Subsidiary. The Board
of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or
21
newly formed Subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply: (a) neither the Company nor any of its Restricted
Subsidiaries provides credit support for any Indebtedness of such Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness) other than capital contributions or other Restricted Payments
permitted under Section 4.05, (b) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, (c) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Company or any
Restricted Subsidiary of the Company except for transactions with affiliates
permitted by the terms of this Indenture unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company (the "Third Party Value") or, in
the event such condition is not satisfied, an amount equal to the value of the
portion of such agreement, contract, arrangement or understanding to such
Subsidiary in excess of the Third Party Value shall be deemed a Restricted
Payment, and (d) such Unrestricted Subsidiary does not own any Equity Interest
in or Indebtedness of any Subsidiary of the Company that has not theretofore
been and is not simultaneously being designated an Unrestricted Subsidiary. Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee of a board resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complies with the foregoing conditions. The Board of Directors of the Company
may designate any Unrestricted Subsidiary as a Restricted Subsidiary; provided,
however, that (i) immediately after giving effect to such designation, the
Company could incur $1.00 of additional Indebtedness pursuant to Section 4.03(a)
and (ii) all Indebtedness of such Unrestricted Subsidiary shall be deemed to be
incurred on the date such Subsidiary is designated a Restricted Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (other than a
guarantee of Indebtedness of the Company or any Restricted Subsidiary which is
non-recourse to the Company and its Restricted Subsidiaries) (i) as to which
neither the Company nor any Restricted Subsidiary is directly or indirectly
liable (by virtue of the Company or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness) and (ii) which,
22
upon the occurrence of a default with respect thereto, does not result in, or
permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare, a default on such Indebtedness of the Company or any
Restricted Subsidiary or cause the payment thereof to be accelerated or payable
prior to its stated maturity.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Equity Interest" of a Person means all classes of
Equity Interest or other interests (including partnership interests) of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.
"Warrant Agreement" means the Warrantholders' Agreement dated
as of June 6, 1995, as amended from time to time, among the Company, the
Principal Shareholders, Xxxxx Xxxxx and the Warrantholders.
"Warrantholders" means the holders of warrants issued pursuant
to the Warrant Agreement and, in the case of any such holders, shares of Common
Stock issued in exchange therefor.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Voting Equity Interests (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company or
a Surviving Person of any Disposition involving the Company, as the case may be.
23
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"........................ 4.08
"Asset Sale"....................................4.07
"Bankruptcy Law"............................... 6.01
"Blockage Notice"............................. 10.03
"covenant defeasance option".................8.01(b)
"Custodian".................................... 6.01
"Event of Default"............................. 6.01
"legal defeasance option"....................8.01(b)
"Legal Holiday"............................... 13.08
"pay the Securities".......................... 10.03
"Paying Agent"................................. 2.03
"Payment Blockage Period"..................... 10.03
"Registrar".................................... 2.03
"Successor Company"............................ 5.01
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
24
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Debt merely by virtue of its nature as
unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(9) all references to the date the Securities were originally
issued shall refer to the date the Initial Securities were originally
issued.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Form and Dating. Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
"Appendix") which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to the Appendix
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange
25
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). Each Security
shall be dated the date of its authentication. The terms of the Securities set
forth in the Appendix and Exhibit A are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate principal amount of $85,478,000, upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company. Such order shall
specify the amount of the Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for
26
exchange (the "Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one
or more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by the
Company or a Subsidiary in trust for the payment of principal or interest on any
Security and remaining unclaimed for two years after such principal and interest
has become due and payable shall be paid to the Company at its request, or, if
then held by the Company or a Subsidiary, shall be discharged from such trust;
and the
27
Securityholders shall thereafter, as unsecured general creditors, look only to
the Company for payment thereof, and all liability of the Paying Agent with
respect to such money, and all liability of the Company or such Subsidiary as
trustee thereof, shall thereupon cease.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401(1)
of the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed or 15 days before an interest
payment date.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the
28
Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected
by notice to the contrary.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture will evidence the same debt and will be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security. In the event any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Company in its discretion may pay such Security
instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser; provided,
however, that the rights of the Company under Section 8-405 of the Uniform
Commercial Code shall not be diminished in any way.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and
29
interest payable on that date with respect to the Securities (or portions
thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10 Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state
30
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 3
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 in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not less than 15 days after the
date of notice to the Trustee (unless a shorter period shall be acceptable to
the Trustee). Any such notice may be canceled by notice in writing to the
Trustee at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall be
in amounts of
31
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail, or cause to be mailed, a notice of redemption by first-class mail to each
Holder of Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed; provided, however, that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Securities; and
(8) that if a Security is to be redeemed in part, only the
portion of the principal amount (equal to $1,000 or an integral
multiple thereof) of such Security is to be redeemed and that a new
Security in the aggregate principal amount equal to the unredeemed
portion thereof will be issued without charge to the holder.
32
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date that is on or prior to
the redemption date). Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
---------
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
33
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, commencing the first fiscal quarter ended June 30, 1997, the
Company shall file with the SEC and provide the Trustee and Securityholders with
such annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents and reports to
be so filed and provided at the times specified for the filing of such
information, documents and reports under such Sections. The Company also shall
comply with the other provisions of TIA ss. 314(a).
SECTION 4.03. Limitation on Incurrence of Indebtedness and
Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired
Debt) or issue any Preferred Stock, except that the Company may (i) issue
Preferred Stock that is not Disqualified Stock at any time and (ii) Incur
Indebtedness or issue Disqualified Stock if the Debt to EBITDA Ratio of the
Company and its Restricted Subsidiaries at the time of Incurrence of such
Indebtedness or issuance of such Disqualified Stock, after giving pro forma
effect thereto, does not exceed 7.0 to 1.0; provided, however, that any such
Indebtedness (other than Senior Debt) Incurred by the Company shall, at the time
of Incurrence, have a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of the Securities.
(b) The limitations set forth in paragraph (a) above shall not
apply to the Incurrence of any of the following:
(i) Indebtedness consisting of Senior Bank Debt; provided,
however, that the aggregate principal amount outstanding at any time
under this clause (i) does not exceed $10,000,000;
(ii) Existing Indebtedness;
(iii) Indebtedness represented by the Securities and the
Subsidiary Guarantees;
34
(iv) Refinancing Indebtedness; provided, however, that
(A) the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of
Indebtedness or the amount of Disqualified Stock so extended,
refinanced, renewed, replaced, substituted, defeased or
refunded (plus the amount of expenses incurred and premiums
paid in connection therewith),
(B) with respect to Refinancing Indebtedness of any
Indebtedness other than Senior Debt or Disqualified Stock, the
Refinancing Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced,
renewed, replaced, substituted, defeased or refunded, and
(C) with respect to Refinancing Indebtedness of any
Indebtedness other than Senior Debt or Disqualified Stock
incurred by (1) the Company, such Refinancing Indebtedness
ranks no more senior, and at least as subordinated, in right
of payment to the Securities as the Indebtedness being
extended, refinanced, renewed, replaced, substituted, defeased
or refunded and (2) a Subsidiary Guarantor, such Refinancing
Indebtedness ranks no more senior, and at least as
subordinated, in right of payment to the Subsidiary Guarantee
of such Subsidiary Guarantor as the Indebtedness being
extended, refinanced, renewed, replaced, substituted, defeased
or refunded;
(v) intercompany Indebtedness between the Company and any of
its Wholly Owned Restricted Subsidiaries;
(vi) Hedging Obligations, including interest rate swap
obligations, that are incurred in the ordinary course of business for
the purpose of fixing or hedging interest rate risk with respect to any
floating rate Indebtedness that is permitted by the terms of this
Indenture to be outstanding;
(vii) guarantees by the Company and the Subsidiary Guarantors
of any Indebtedness of the Company or any Restricted Subsidiary
permitted under this Section 4.03;
35
(viii) Indebtedness of the Company or any Restricted
Subsidiary consisting of indemnification, adjustment of purchase price
or similar obligations, in each case incurred in connection with the
disposition of any assets of the Company or any Restricted Subsidiary;
and
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries (in addition to Indebtedness permitted by clauses (ii)
through (viii) of this Section) in an aggregate principal amount at any
time outstanding that, together with any Indebtedness incurred pursuant
to clause (i) of this Section, does not exceed $5,000,000.
(c) For purposes of determining compliance with this Section
4.03, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described herein, the Company, in its sole
discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses and
(ii) an item of Indebtedness may be divided and classified in more than one of
the types of Indebtedness described herein.
SECTION 4.04. Limitation on Senior Subordinated Debt. (a) The
Company shall not Incur (i) any Indebtedness that is subordinate or junior in
ranking in right of payment by its terms to any Senior Debt of the Company and
senior in right of payment by its terms to the Securities or (ii) any Secured
Debt that is not Senior Debt unless contemporaneously therewith effective
provision is made to secure the Securities equally and ratably with such Secured
Debt for so long as such Secured Debt is secured by a Lien.
(b) The Company shall not permit any Subsidiary Guarantor to
Incur (i) any Indebtedness that is subordinated or junior in ranking in right of
payment by its terms to any Senior Debt and senior in right of payment to its
Subsidiary Guarantee or (ii) any Secured Debt that is not Senior Debt unless
contemporaneously therewith effective provision is made to secure its Subsidiary
Guarantee equally and ratably with such Secured Debt for so long as such Secured
Debt is secured by a Lien.
SECTION 4.05. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a
36
Restricted Payment if at the time the Company or such Restricted Subsidiary
makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, the Company would
not be permitted to Incur at least $1.00 of additional Indebtedness
under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of:
(A) an amount equal to the Company's EBITDA cumulated
from April 1, 1997, to the end of the Company's most recently
ended full fiscal quarter, taken as a single accounting
period, minus 1.4 times the sum of (i) the Company's
Consolidated Interest Expense from April 1, 1997, to the end
of the Company's most recently ended full fiscal quarter,
taken as a single accounting period, plus (ii) all dividends
or other distributions paid or made by the Company or any
Restricted Subsidiary on any Disqualified Stock of the Company
or any of its Subsidiaries during such period;
(B) the aggregate Net Cash Proceeds received by the
Company from the issuance or sale of its Equity Interests
(other than Disqualified Stock) subsequent to the Issue Date
(other than an issuance or sale to a Subsidiary of the Company
and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees);
(C) the amount by which Indebtedness of the Company
is reduced on the Company's balance sheet upon the conversion
or exchange (other than by a Subsidiary of the Company)
subsequent to the Issue Date of any Indebtedness of the
Company convertible or exchangeable for Equity Interests
(other than Disqualified Stock) of the Company (less the
amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange
other than Equity
37
Interests not constituting Disqualified Stock); and
(D) an amount equal to the sum of (i) the net
reduction in Investments in Unrestricted Subsidiaries
resulting from dividends, repayments of loans or advances or
other transfers of assets, in each case to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries, and (ii)
the portion (proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net assets of
an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case
of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the
Company or any Restricted Subsidiary in such Unrestricted
Subsidiary.
(b) The provisions of paragraph (a) above shall not prohibit:
(i) any Restricted Payment made out of the proceeds of the
substantially concurrent sale of, and any acquisition of any Equity
Interest of the Company made by exchange for, Equity Interests of the
Company (other than Disqualified Stock and Capital Stock issued or sold
to a Subsidiary of the Company or to an employee stock ownership plan
or a trust established by the Company or any of its Subsidiaries for
the benefit of their employees); provided, however, that (A) such
Restricted Payment shall be excluded in the calculation of the amount
of Restricted Payments and (B) the Net Cash Proceeds from such sale
shall be excluded from the calculation of amounts under clause (3)(B)
of paragraph (a) above;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Debt made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness of the Company that is permitted to be Incurred
pursuant to Section 4.03; provided, however, that such purchase,
repurchase, redemption, defeasance or other acquisition or retirement
for value shall be excluded in the calculation of the amount of
Restricted Payments;
38
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with paragraph (a) above; provided, however, that (A) at
the time of payment of such dividend, no Default shall have occurred
and be continuing (or result therefrom) and (B) such dividend shall be
included in the calculation of the amount of Restricted Payments from
and after such time;
(iv) loans to members of management of the Company or any
Restricted Subsidiary the proceeds of which are used for a concurrent
purchase of Equity Interests of the Company or a capital contribution
to the Company (provided that the proceeds from such purchase of Equity
Interests or capital contribution shall be excluded from the
calculation of amounts under clause (3)(B) of paragraph (a) above);
provided, however, that such loans shall be included in the calculation
of the amount of Restricted Payments from and after such time;
(v) any principal payment on, or purchase, redemption,
defeasance or other acquisition or retirement for value of, any
Indebtedness that is subordinated by its terms to the Securities out of
Excess Proceeds available for general corporate purposes after the
purchase of all Securities properly tendered pursuant to an Offer to
Purchase required by Section 4.07; provided, however, that the amount
of such payments shall be excluded in the calculation of the amount of
Restricted Payments; and
(vi) repurchases of Equity Interests of the Company from any
employee of the Company (other than a Principal Shareholder) whose
employment with the Company has ceased; provided, however, that the
aggregate amount of such repurchases shall not exceed $500,000 in any
year; provided further, however, that the amount of such payments shall
be included in the calculation of the amount of Restricted Payments
from and after such time.
SECTION 4.06. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a) (i) pay dividends
or make any other distributions to the Company or any other Restricted
Subsidiary (A) on its
39
Equity Interests or (B) with respect to any other interest or participation in,
or measured by, its profits or (ii) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (b) make any loans or advances to the Company
or any other Restricted Subsidiary or (c) transfer any of its property or assets
to the Company or any other Restricted Subsidiary, except any encumbrance or
restriction existing under or by reason of:
(i) any Existing Indebtedness;
(ii) applicable law;
(iii) any instrument governing Indebtedness or Equity
Interests of a Person acquired by the Company or any Restricted
Subsidiary as in effect at the time of such acquisition (except to the
extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition); provided, however, that (A) such
restriction is not applicable to any other Person or the properties or
assets of any other Person, and (B) the consolidated net income (loss)
of such acquired Person for any period prior to such acquisition shall
not be taken into account in determining whether such acquisition was
permitted by the terms of the Indenture;
(iv) by reason of customary nonassignment provisions in leases
entered into in the ordinary course of business and consistent with
past practices;
(v) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only impose restrictions on the
property so acquired;
(vi) Refinancing Indebtedness permitted under Section 4.03;
provided, however, that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive in the
aggregate than those contained in the agreements governing the
Indebtedness being refinanced immediately prior to such refinancing;
(vii) the Credit Agreement;
(viii) agreements relating to the financing of the acquisition
of real or tangible personal property acquired after the date of the
Indenture, provided that such encumbrance or restriction relates only
to the property that is acquired and, in the case of any
40
encumbrance or restriction that constitutes a Lien, such Lien
constitutes a Purchase Money Lien; or
(ix) any restriction or encumbrance contained in contracts for
sale of assets in respect of the assets being sold pursuant to such
contract.
SECTION 4.07. Limitation on Certain Asset Sales. The Company
shall not, and shall not permit any Restricted Subsidiary to:
(i) sell, lease, convey or otherwise dispose of any assets
(including by way of a sale-and-leaseback) other than in the ordinary
course of business, or
(ii) issue or sell Equity Interests of any of its Restricted
Subsidiaries,
in each case, whether in a single transaction or a series of related
transactions, to any Person (other than (x) an issuance, sale, lease, conveyance
or disposal by a Restricted Subsidiary to the Company or one of its Wholly Owned
Restricted Subsidiaries, (y) an Asset Swap permitted by Section 4.11 or (z) the
sale of the stock of any Unrestricted Subsidiary) (each of the foregoing, an
"Asset Sale"), unless: (x) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets or Equity Interests sold or
otherwise disposed of, (y) at least 80% of such consideration is in the form of
cash or Cash Equivalents and (z) if such Asset Sale includes Equity Interests of
any Restricted Subsidiary, 100% of the Equity Interests of such Restricted
Subsidiary owned by the Company or any other Restricted Subsidiary are sold or
otherwise disposed of in such Asset Sale. Following any Asset Sale, the Company
may at its option apply all or any portion of the Net Proceeds from such Asset
Sale, within 360 days of such Asset Sale, (A) to permanently reduce or satisfy
any Senior Debt (and, in the event that such Senior Debt is extended under a
revolving credit or similar facility, to permanently reduce or satisfy the
aggregate commitments thereunder as then in effect) or (B) to acquire Broadcast
Assets. Pending the final application of any such Net Proceeds, the Company may
temporarily reduce Senior Debt or invest such Net Proceeds in Permitted
Investments or to reduce loans outstanding under any revolving credit facility
of the Company or any Restricted Subsidiary. Any Net Proceeds from an Asset Sale
not applied to the payment of Senior Debt or the acquisition of Broadcast Assets
as provided in the immediately preceding sentence, upon expiration such 360-day
period, will be
41
deemed to constitute "Excess Proceeds". Whenever aggregate Excess Proceeds
realized since the Issue Date minus the aggregate purchase price of the
Securities that have been the subject of any previous Offer to Purchase ("Net
Excess Proceeds") exceeds $5,000,000, the Company will commence an Offer to
Purchase within 30 days after the date on which the Net Excess Proceeds exceeded
$5,000,000. Such Offer to Purchase shall be for a principal amount of Notes then
outstanding having an aggregate purchase price equal to such Net Excess
Proceeds. Notwithstanding the foregoing provisions of this Section 4.07, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Proceeds in accordance with this Section 4.07 except to the extent that the
aggregate Net Proceeds from all Asset Sales which are not applied in accordance
with this Section 4.07 exceeds $1,000,000.
For the purposes of this Section 4.07, the following are
deemed to be cash: (x) the assumption of Senior Debt of the Company or any
Restricted Subsidiary and the release of the Company or such Restricted
Subsidiary from all liability on such Senior Debt in connection with such Asset
Sale (other than customary indemnification provisions relating thereto that do
not involve the repayment of funded indebtedness) and (y) securities received by
the Company or any Restricted Subsidiary from the transferee that are promptly
converted by the Company or such Restricted Subsidiary into cash.
SECTION 4.08. Transactions with Affiliates. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, sell, lease, transfer or otherwise dispose of any of its properties
or assets to, or purchase any property or assets from, or enter into any
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary (each of
the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with a
non-Affiliated Person, (ii) such Affiliate Transaction is approved by a majority
of the disinterested members of the Company's Board of Directors and (iii) the
Company delivers to the Trustee (A) with respect to any Affiliate Transaction
involving aggregate payments in excess of $1,000,000, an Officers' Certificate
certifying that such Affiliate Transaction complies with clauses (i) and (ii)
above and (B) with respect to any Affiliate Transaction (or series of related
transactions) with an aggregate value in
42
excess of $5,000,000, an opinion from a nationally recognized investment bank to
the effect that the transaction is fair to the Company or the Restricted
Subsidiary, as the case may be, from a financial point of view.
(b) The provisions of paragraph (a) above shall not prohibit:
(i) employment arrangements (including customary benefits
thereunder) entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the
past practice of the Company or such Restricted Subsidiary;
(ii) transactions solely between or among the Company and its
Wholly Owned Restricted Subsidiaries or solely between or among wholly
Owned Restricted Subsidiaries;
(iii) transactions permitted under Section 4.05;
(iv) any agreement as in effect on the Issue Date or any
amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) and any replacement agreement
thereto so long as any such amendment or replacement agreement is not
more disadvantageous to the holders of the Securities in any material
respect than the original agreement as in effect on the Issue Date;
(v) the existence of, or the performance by the Company or any
of its Restricted Subsidiaries of its obligations under the terms of,
any stockholders agreement (including any registration rights agreement
or purchase agreement related thereto) to which it is a party on the
Issue Date;
(vi) services provided to any Unrestricted Subsidiary of the
Company for fees approved by the Board of Directors; and
(vii) the issuance, sale or other disposition of any Equity
Interest (other than Disqualified Stock) of the Company, including any
equity-related agreements relating thereto such as registration rights
and voting agreements so long as such agreements do not result in such
Equity Interests being Disqualified Stock.
SECTION 4.09. Limitation on Restricted Subsidiary Equity
Interests. The Company shall not permit any
43
Restricted Subsidiary to issue any Equity Interests, except (a) Equity Interests
issued to and held by the Company or a Wholly Owned Restricted Subsidiary, and
(b) Equity Interests issued by a Person prior to the time (i) such Person
becomes a Restricted Subsidiary, (ii) such Person merges with or into a
Restricted Subsidiary or (iii) a Restricted Subsidiary mergers with or into such
Person; provided, however, that such Equity Interests were not issued or
incurred by such Person in anticipation of the type of transaction contemplated
by subclause (i), (ii) or (iii).
SECTION 4.10. Change of Control. Upon the occurrence of a
Change of Control, the Company shall commence an Offer to Purchase all the
outstanding Securities. The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with an Offer to Purchase Notes pursuant to
this Section 4.10. To the extent the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue
thereof.
SECTION 4.11. Limitation on Asset Swaps. The Company shall
not, and shall not permit any Restricted Subsidiary to, engage in any Asset
Swaps, unless:
(i) at the time of entering into the agreement relating to the
proposed Asset Swap and immediately after such Asset Swap, no Default
or Event of Default shall have occurred and be continuing;
(ii) at the time of entering into the agreement relating to
the proposed Asset Swap and after giving pro forma effect to such Asset
Swap as if it had occurred at the beginning of the applicable
four-quarter period, the Company would be permitted to incur at least
$1.00 of additional Indebtedness under Section 4.03(a);
(iii) after giving pro forma effect to the proposed Asset Swap
as if such Asset Swap had occurred at the beginning of the four most
recent full fiscal quarters ending immediately prior to the date of the
proposed Asset Swap, the ratio of (A) EBITDA of the Company and its
Restricted Subsidiaries on a consolidated basis for such four-quarter
period to (B) the Consolidated Cash Interest Expense of the Company and
its Restricted
44
Subsidiaries for such four-quarter period exceeds 1.2 to 1.0; and
(iv) the respective Fair Market Values of the assets being
purchased and sold by the Company or any of its Restricted Subsidiaries
are substantially the same at the time of entering into such agreement.
SECTION 4.12. Future Subsidiary Guarantors. The Company shall
(a) cause each Person that, after the Issue Date, becomes a Wholly Owned
Restricted Subsidiary of the Company to execute and deliver a supplemental
indenture and thereby become a Subsidiary Guarantor bound by the Subsidiary
Guarantee of the Securities set forth in Article 11 hereof (without such
Subsidiary Guarantor being required to execute and deliver its Subsidiary
Guarantee endorsed on the Securities) and (b) deliver to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the Trustee, that
the Subsidiary Guarantee of such Subsidiary Guarantor is a valid and legally
binding obligation of such Subsidiary Guarantor.
SECTION 4.13. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such fiscal year. If they do, the certificate shall describe the
Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
ss. 314(a)(4).
SECTION 4.14. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.15. Ratings for Notes. Following the filing with the
SEC of the Company's first Annual Report on Form 10-K after the Issue Date, the
Company shall use its reasonable best efforts to obtain, by June 30, 1998, the
publication of ratings for the Securities from Xxxxx'x Investors Service, Inc.
and from Standard and Poor's Ratings Group (or any successor to either of them)
or, in the event that either of such entities at such time no longer publishes
ratings for long-term debt securities, then any other nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act).
45
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer Assets. (a)
The Company shall not consolidate or merge with or into (whether or not the
Company is the Surviving Person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person, unless:
(i) the Surviving Person shall be a corporation organized or
existing under the laws of the United States, any state thereof or the
District of Columbia;
(ii) the Surviving Person (if other than the Company) 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;
(iii) at the time of and immediately after such Disposition,
no Default shall have occurred and be continuing;
(iv) the Surviving Person shall, at the time of such
Disposition and after giving pro forma effect thereto, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to Section
4.03(a); and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Surviving Person (if other than the Company) shall be the
successor to the Company and shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, but the
predecessor Company in the case of a sale, assignment, transfer, lease or
conveyance shall not be released from the obligation to pay the principal of and
interest on the Securities.
(b) In the event of a sale of all or substantially all of the
assets of any Subsidiary Guarantor or all of the Equity Interests of any
Subsidiary Guarantor, by way of
46
merger, consolidation or otherwise, then the Surviving Person of any such merger
or consolidation, or such Subsidiary Guarantor, if all of its Equity Interests
are sold, shall be released and relieved of any and all obligations under the
Subsidiary Guarantee of such Subsidiary Guarantor if:
(i) the Person surviving such merger or consolidation or
acquiring the Equity Interest of such Subsidiary Guarantor is not a
Restricted Subsidiary of the Company;
(ii) the Net Proceeds from such sale are applied as described
under Section 4.07; and
(iii) such Subsidiary Guarantor is released from its
guarantees of other Indebtedness of the Company or any Restricted
Subsidiary.
(c) Except as provided in clause (b), no Subsidiary Guarantor
may consolidate or merge with or into (whether or not such Person is Affiliated
with such Subsidiary Guarantor and whether or not the Guarantor is the Surviving
Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets in one or more related transactions, to another
Person, unless:
(i) the Surviving Person shall be the Company or one of its
Wholly Owned Restricted Subsidiaries;
(ii) the Surviving Person shall be a corporation organized or
existing under the laws of the United States, any state thereof or the
District of Columbia;
(iii) the Surviving Person (if other than the Subsidiary
Guarantor) shall expressly assume all the obligations of the Subsidiary
Guarantor under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the
Trustee; and
(iv) at the time of and immediately after such Disposition, no
Default shall have occurred an be continuing.
47
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of principal of (or
premium if any, on) any Security when the same becomes due and payable,
whether or not such payment shall be prohibited by Article 10;
(2) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article 10, and such default continues
for a period of 30 days;
(3) the Company fails to redeem or purchase any Security when
required pursuant to this Indenture or the Securities, including, in
connection with an Offer to Purchase, whether or not such redemption or
purchase shall be prohibited by Article 10;
(4) the Company fails to comply with Sections 4.15 or 5.01;
(5) the Company or any Subsidiary Guarantor fails to comply
with any of their respective agreements in the Securities or this
Indenture (other than those referred to in clause (1), (2), (3) or (4)
above) and such failure continues for 30 days after the notice
specified below;
(6) the Company or any Restricted Subsidiary fails to comply
with terms of any instrument evidencing or securing Indebtedness for
money borrowed by the Company or any Restricted Subsidiary having an
outstanding principal amount of $5,000,000 individually or in the
aggregate, which failure results in the acceleration of the payment of
such Indebtedness or constitutes the failure to pay such Indebtedness
when due at final maturity, and such non-payment continues for a period
of 30 days;
48
(7) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Restricted Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Restricted Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Restricted Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) any final judgment or decree for the payment of money in
excess of $5,000,000 (not subject to appeal) is entered against the
Company or any Restricted Subsidiary and remains undischarged or
unstayed for a period of 60 days after the later of (A) entry of such
final judgment or decree and (B) the date on which the right to appeal
has expired; or
(10) a Subsidiary Guarantee of a significant Subsidiary ceases
to be in full force and effect (other than in accordance with the terms
of such Subsidiary Guarantee) or a Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guarantee.
49
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (5) is not an Event of Default until
the Trustee or the holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6), (9) or (10) and any event which with
the giving of notice or the lapse of time would become an Event of Default under
clause (5), its status and what action the Company is taking or proposes to take
with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the Securities by notice to the
Company and the Trustee, may declare the Accreted Value of and accrued but
unpaid interest on all the Securities (the "Default Amount") to be due and
payable. Upon such a declaration, the Default Amount shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs, 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 Securityholders. The Holders of a majority in principal
amount of the Securities by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such
50
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 to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of, or premium or interest on, a Security, (ii) a
Default arising from the failure to repurchase any Security tendered for
repurchase in connection with an Offer to Purchase or (iii) a Default in respect
of a provision that under Section 9.02 cannot be amended without the consent of
each Securityholder affected. When a Default is waived, it is deemed cured, but
no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to receive from the
Securityholders indemnification or security satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue
51
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal amount of
the Securities do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1), (2) or (3) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders
52
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein shall be deemed to empower 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 Securityholder, 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 or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to
the extent required by Article 10;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable
53
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificate or
opinions which, by any provision hereof, are required to be furnished
to the Trustee, the Trustee shall examine the certificates and opinions
54
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
55
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) 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 in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers created in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
(h) The Trustee may enter into and perform its obligations
under the Standstill Agreement dated May 19, 1997, among the Company, the
Subsidiary Guarantors, the Investors and Management Stockholders (as those terms
are defined in the Standstill Agreement), and the Agent and the Trustee.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same
56
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security,
the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with May 15, 1998, and in any event
prior to June 15 in each year, the Trustee shall mail to each Securityholder a
brief report dated as of such date that complies with TIA ss. 313(a). The
Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee promptly upon request from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the administration
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of this trust, the enforcement of this Indenture (including this Section 7.07)
against the Company and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim (whether asserted by
any Securityholder or any other Person) or liability in connection with the
acceptance, exercise or performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee so to notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith. The Company need
not pay for any settlement made by the Trustee without the Company's consent,
such consent not to be unreasonably withheld.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or Indebtedness of the Company.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
or render services after the occurrence of a Default specified in Section
6.01(7) or (8) with respect to the Company, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
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(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided that the
amounts owing to the Trustee hereunder have been paid and subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in aggregate principal amount of the 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 the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
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In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption date
(other than Securities replaced pursuant to Section 2.07), and if in either case
the Company pays all
60
other sums payable hereunder by the Company, then this Indenture shall, subject
to Section 8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12 and the
operation of Sections 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in
the case of Sections 6.01(7) and (8), with respect only to Restricted
Subsidiaries) and the limitations contained in Sections 5.01(a)(iv) and 5.01(c)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(3), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and
6.01(10)(but, in the case of Sections 6.01(7) and (8), with respect only to
Restricted Subsidiaries which constitute Significant Subsidiaries) or because of
the failure of the Company to comply with Section 5.01(a)(iv) or 5.01(c). If the
Company exercises its legal defeasance option or its covenant defeasance option,
each Subsidiary Guarantor, if any, shall be released from all its obligations
with respect to its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
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SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of
and interest on the Securities to maturity or redemption, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
62
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such 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
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of
63
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article 8; provided, however, that, if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company, the
Subsidiary Guarantor and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article 10 or Article
12, respectively;
(5) to add guarantees with respect to the Securities or to
release Guarantors when permitted by the terms hereof or to secure the
Securities;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
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(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or any
group or representative thereof authorized to give a consent) consent in writing
to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in aggregate principal amount of the Securities then
outstanding. However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security;
(2) reduce the principal amount of, or the premium or interest
on, any Security;
(3) change the place or currency of payment of principal of,
or premium or interest on, any Security;
(4) reduce the amount of Securities whose Holders must consent
to an amendment or modification of this Indenture;
(5) reduce the amount of Securities whose Holders must consent
to any waiver of compliance with the provisions of this Indenture;
(6) modify Section 6.04 or 6.07 or the second sentence of this
Section;
65
(7) modify any of the provisions of Article 10 or Article 12
in a manner materially adverse to the Securityholders;
(8) modify any provisions of the Indenture relating to the
guarantee by the Company or any Subsidiary Guarantor of the
Indebtedness of any Unrestricted Subsidiaries; or
(9) following the mailing of any Offer to Purchase, modify
such Offer to Purchase required under Section 4.07 and Section 4.10 in
a manner materially adverse to the Securityholders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or any
group or representative thereof authorized to give a consent) consent in writing
to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
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The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
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ARTICLE 10
Subordination
-------------
SECTION 10.01. Agreement To Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment in full in
cash or Cash Equivalents of all Senior Debt of the Company and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Debt. The Securities shall rank pari passu in right of payment with all
other Senior Subordinated Indebtedness of the Company and only Indebtedness of
the Company that is Senior Debt shall rank senior to the Securities in
accordance with the provisions set forth herein. All provisions of this Article
10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency or similar
proceeding relating to the Company or its property:
(1) holders of Senior Debt of the Company shall be entitled to
receive payment in full of such Senior Debt in cash or Cash Equivalents
before Securityholders shall be entitled to receive any payment of
principal of, or premium, if any, or interest on, the Securities; and
(2) until the Senior Debt of the Company is paid in full in
cash or Cash Equivalents, any payment or distribution to which
Securityholders would be entitled but for this Article 10 shall be made
to holders of such Senior Debt as their interests may appear, except
that Securityholders may receive shares of stock and any debt
securities that are subordinated to such Senior Debt to at least the
same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness. The Company may
not pay the principal of or interest on the Securities or make any deposit
pursuant to Section 8.01 and may not repurchase, redeem or otherwise retire any
Securities (collectively, "pay the Securities") if (i) any Senior Debt is not
paid in full in cash or Cash Equivalents
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following the maturity (on the due date, upon acceleration or otherwise) of such
Senior Debt or (ii) there shall have occurred and be continuing a default in the
payment of Senior Debt unless, in either case, (x) the default has been
expressly cured or waived or (y) such Senior Debt has been paid in full in cash
or Cash Equivalents; provided, however, that the Company may pay the Securities
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the Representative of such Senior Debt.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Designated Senior
Debt that permits one or more holders thereof (or a trustee on behalf of the
holders thereof) to accelerate the maturity thereof, the Company may not pay the
Securities for a period (a "Payment Blockage Period") commencing upon the
receipt by the Company and the Trustee of written notice (a "Blockage Notice")
of such default from the Representative of such Designated Senior Debt
specifying an election to effect a Payment Blockage Period and ending on the
earlier of (x) 179 days thereafter and (y) the date on which the Designated
Senior Debt to which such default relates is paid in full in cash or Cash
Equivalents or such default is expressly waived or otherwise cured.
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of such Designated Senior Debt or the Representative of such
holders shall have accelerated the maturity of such Designated Senior Debt, the
Company may resume payments on the Securities after termination of such Payment
Blockage Period, subject to the provisions of the Senior Debt. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Debt during such
period, and there shall be a period of at least 181 consecutive days in each
period of 360 consecutive days during which no Payment Blockage Period is in
effect. For purposes of this Section, no default or event of default (other than
a default described in clause (i) or (ii) of the first sentence of this
paragraph) that existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Debt initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Debt, whether or not within a period of 360 consecutive days, unless such
default or event of default shall have been expressly cured or waived for a
period of not less than 180 consecutive days.
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SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
holders of Senior Debt shall be entitled to receive payment in full in cash or
Cash Equivalents of all Senior Debt before the holders of the Securities shall
be entitled to receive any payment on account of the principal of (or premium,
if any) or interest on the Securities or on account of the purchase or
redemption or other acquisition of the Securities.
If an Event of Default shall have occurred and be continuing
(other than an Event of Default pursuant to Section 6.01(7) or 6.01(8)), the
Trustee or the Holders of the Securities electing to accelerate the Securities
pursuant to Section 6.02 shall give the holders of all Designated Senior Debt
(or their Representatives) five Business Days' prior written notice before
accelerating the Securities, which notice shall state that it is a "Notice of
Intent to Accelerate"; provided, however, that the Trustee shall have received
prior written notice from the Company specifying the names and addresses of such
holders of Designated Senior Debt; provided further, however, that the Trustee
or such holders may so accelerate the Securities immediately without such notice
if at such time payment of any Designated Senior Debt shall have been
accelerated. If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Debt (or their Representatives) of the acceleration.
Notwithstanding anything to the contrary in this Section
10.04, the Trustee's obligations under this Section 10.04 shall only extend to
those holders of Designated Senior Debt whose identity or addresses have been
accurately disclosed in writing by the Company to the Trustee prior to the
occurrence of an Event of Default.
SECTION 10.05. When Distribution Must Be Paid Over. If a
payment or other distribution is made to the Trustee or any Securityholders that
because of this Article 10 should not have been made to them, the Trustee or
Securityholders, as the case may be, who receive the payment or other
distribution shall hold it in trust for holders of Senior Debt of the Company
and pay it over to them as their interests may appear, to the extent necessary
to pay in full in cash or Cash Equivalents all the Senior Debt.
SECTION 10.06. Subrogation. After all Senior Debt of the
Company is paid in full in cash or Cash Equivalents and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders
70
of such Senior Debt to receive distributions applicable to such Senior Debt. A
distribution made under this Article 10 to holders of such Senior Debt which
otherwise would have been made to Securityholders is not, as between the Company
and Securityholders, a payment by the Company on such Senior Debt.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Debt of the Company.
Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Debt of the Company to receive payments and other
distributions otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture. The holders of Senior Debt may extend, renew, modify, amend,
compromise, supplement or waive the terms of the Senior Debt or any security
therefor and release, sell or exchange such and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties to
the Indenture or the Securityholders. Each Securityholder by its acceptance of
the Securities, waives any and all notice of renewal, extension, modification,
amendment or compromise, supplement or waiver (including granting right of
accrual) of the Designated Senior Debt, present or future, and agrees and
consents to the foregoing.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
prior to such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 10;
provided, however, that if on a date not less than two Business Days prior to
the
71
date on which by the terms of this Indenture moneys deposited by the Company
with the Trustee for the payment of the Securities shall have become payable for
any purpose, the Trustee or the Paying Agent shall not have received with
respect to such moneys the notice provided for in this Article 10, then the
Trustee or such Payment Agent will have full power and authority to apply the
same to the purpose for which they were received. Nothing herein will be
construed to relieve any Securityholder from duties imposed upon it under
Section 10.05 with respect to moneys received in violation of the provisions of
this Article. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Debt may give the notice; provided,
however, that, if an issue of Senior Debt of the Company has a Representative,
only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt of the Company with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 10 with respect to any Senior Debt of the Company which may at any
time be held by it, to the same extent as any other holder of such Senior Debt;
and nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt of the Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Except as specifically provided in
Section 10.04, nothing in this Article 10 shall have any effect on the right of
the Securityholders or the Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior
72
Debt or subject to the restrictions set forth in this Article 10, and none of
the Securityholders shall be obligated to pay over any such amount to the
Company or any holder of Senior Debt of the Company or any other creditor of the
Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior Debt
of the Company for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a
holder of Senior Debt of the Company to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Debt of the Company as provided in this Article 10 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall
mistakenly pay
73
over or distribute to Securityholders or the Company or any other Person, money
or assets to which any holders of Senior Debt of the Company shall be entitled
by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Debt of the Company, whether such Senior Debt was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Debt and such holder of such Senior Debt shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE 11
Subsidiary Guaranties
---------------------
SECTION 11.01. Guaranties. Each Subsidiary Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Company under this Indenture and the Securities and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture and the Securities (all
the foregoing being hereinafter collectively called the "Obligations"). Each
Subsidiary Guarantor further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under
this Article 11 notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or
74
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations; or (f) any change in the
ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
Each Subsidiary Guarantee is, to the extent and in the manner
set forth in Article 12, subordinated and subject in right of payment to the
prior payment in full of all Senior Debt of the Subsidiary Guarantor giving such
Subsidiary Guarantee and each Subsidiary Guarantee is made subject to such
provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and
11.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of principal of or interest on any
75
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right that any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Obligation, each Subsidiary Guarantor, subject
to the provisions of Article 12, hereby promises to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to
the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount
of such Obligations, (ii) accrued and unpaid interest on such Obligations (but
only to the extent not prohibited by law) and (iii) all other monetary
Obligations of the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in respect of any Obligations guaranteed hereby
until payment in full of all Obligations and all obligations to which the
Obligations are subordinated as provided in Article 12. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Obligations
Guaranteed hereby may be accelerated as provided in Article 6 for the purposes
of such Subsidiary Guarantor's Subsidiary Guarantee herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section, subject to the provisions
of Article 12.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 11.02. Limitation on Liability. Any term or provision
of this Indenture to the contrary notwithstanding, the maximum, aggregate amount
of the Obligations guaranteed hereunder by any Subsidiary Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates
76
to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally. In addition, for purposes of any applicable
fraudulent transfer or similar laws, Indebtedness under the Senior Debt will be
deemed to have been incurred prior to the incurrence by any Subsidiary Guarantor
of its liabilities under this Article.
SECTION 11.03. Successors and Assigns. This Article 11 shall
be binding upon each Subsidiary Guarantor and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 11
at law, in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or
waiver of any provision of this Article 11, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 11.06. Release of Subsidiary Guarantor. Under the
circumstances provided for in Section 5.01(b), a Subsidiary Guarantor shall be
deemed released from all obligations under this Article 11 without any further
action required on the part of the Trustee or any Holder. At the request of the
Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.
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ARTICLE 12
Subordination of Subsidiary Guaranties
--------------------------------------
SECTION 12.01. Agreement To Subordinate. Each Subsidiary
Guarantor agrees, and each Securityholder by accepting a Security agrees, that
the Obligations of such Subsidiary Guarantor are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment of all Senior Debt of such Subsidiary Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Debt. The Obligations of a Subsidiary Guarantor shall rank pari passu in
right of payment with all other Senior Subordinated Indebtedness of such
Subsidiary Guarantor and only Senior Debt of such Subsidiary Guarantor
(including such Subsidiary Guarantor's Guarantee of Senior Debt of the Company)
shall rank senior to the Obligations of such Subsidiary Guarantor in accordance
with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of any Subsidiary Guarantor to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or
similar proceeding relating to such Subsidiary Guarantor or its property:
(1) holders of Senior Debt of such Subsidiary Guarantor shall
be entitled to receive payment in full of such Senior Debt in cash or
Cash Equivalents before Securityholders shall be entitled to receive
any payment pursuant to any Obligations of such Subsidiary Guarantor;
and
(2) until the Senior Debt of such Subsidiary Guarantor is paid
in full in cash or Cash Equivalents, any payment or distribution to
which Securityholders would be entitled but for this Article 12 shall
be made to holders of such Senior Debt as their interests may appear,
except that Securityholders may receive shares of stock and any debt
securities of such Subsidiary Guarantor that are subordinated to Senior
Debt, and to any debt securities received by holders of Senior Debt, of
such Subsidiary Guarantor to at least the same extent as the
Obligations of such Subsidiary Guarantor are subordinated to Senior
Debt of such Subsidiary Guarantor.
78
SECTION 12.03. Default on Senior Debt of Subsidiary Guarantor.
No Subsidiary Guarantor may make any payment pursuant to any of its Obligations
or repurchase, redeem or otherwise retire or defease any Securities or other
Obligations (collectively, "pay its Subsidiary Guaranty") if (i) any Senior Debt
of the Company is not paid in full in cash or Cash Equivalents following the
maturity (on the due date, upon acceleration or otherwise) of such Senior Debt
or (ii) there shall have occurred and be continuing a default in the payment of
Senior Debt of the Company unless, in either case, (x) the default has been
expressly cured or waived or (y) such Senior Debt has been paid in full in cash
or Cash Equivalents; provided, however, that any Subsidiary Guarantor may pay
its Subsidiary Guarantee without regard to the foregoing if such Subsidiary
Guarantor and the Trustee receive written notice approving such payment from the
Representatives of the Senior Debt. No Subsidiary Guarantor may pay its
Subsidiary Guarantee during the continuance of any Payment Blockage Period after
receipt by the Company and the Trustee of a Blockage Notice under Section 10.03.
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section),
unless the holders of Designated Senior Debt giving such Blockage Notice or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Debt, any Subsidiary Guarantor may resume payments pursuant to
its Subsidiary Guarantee after termination of such Payment Blockage Period,
subject to the provisions of any Senior Debt.
SECTION 12.04. Demand for Payment. If a demand for payment is
made on a Subsidiary Guarantor pursuant to Article 11, the Trustee or the
Holders of the Securities electing to demand such payment from the Subsidiary
Guarantor pursuant to Article 11 shall give the holders of the Designated Senior
Debt (or their Representatives) five Business Days' prior written notice before
making such demand, which notice shall state that it is a "Notice of Intent to
Demand for Payment"; provided, however, that the Trustee shall have received
prior written notice from the Company specifying the names and addresses of such
holders of Designated Senior Debt; provided further, however, that the Trustee
or such Holders may make such demand immediately without such notice if at such
time payment of any Designated Senior Debt shall have been demanded. If payment
of the Securities is demanded because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Debt (or
their Representatives) of such demand.
79
Notwithstanding anything to the contrary in this Section
12.04, the Trustee's obligations under this Section 12.04 shall only extend to
those holders of Designated Senior Debt whose identity or addresses have been
accurately disclosed in writing by the Company to the Trustee prior to the
occurrence of an Event of Default.
SECTION 12.05. When Distribution Must Be Paid Over. If a
payment or other distribution is made to the Trustee or any Securityholders that
because of this Article 12 should not have been made to them, the Trustee or
Securityholders who receive the payment or other distribution shall hold it in
trust for holders of the relevant Senior Debt and pay it over to them or their
Representatives as their interests may appear to the extent necessary to pay in
full in cash or Cash Equivalents all the Senior Debt of such Subsidiary
Guarantor.
SECTION 12.06. Subrogation. After all Senior Debt of a
Subsidiary Guarantor is paid in full in cash or Cash Equivalents and until the
Securities are paid in full, Securityholders shall be subrogated to the rights
of holders of such Senior Debt to receive distributions applicable to Senior
Debt. A distribution made under this Article 12 to holders of such Senior Debt
which otherwise would have been made to Securityholders is not, as between the
relevant Subsidiary Guarantor and Securityholders, a payment by such Subsidiary
Guarantor on such Senior Debt.
SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Securityholders and holders of Senior Debt of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and
Securityholders, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional, to pay the Obligations to the extent set
forth in Article 11 or the relevant Subsidiary Guaranty; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by such Subsidiary Guarantor
under the Obligations, subject to the rights of holders of Senior Debt
of such Subsidiary Guarantor to receive payments and other
distributions otherwise payable to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt of any Subsidiary Guarantor to enforce the
subordination of the Obligations of such Subsidiary Guarantor shall be impaired
80
by any act or failure to act by such Subsidiary Guarantor or by its failure to
comply with this Indenture. The holders of Senior Debt may extend, renew,
modify, amend, compromise, supplement or waive the terms of the Senior Debt or
any security therefor and release, sell or exchange such and otherwise deal
freely with the Company, all without affecting the liabilities and obligations
of the parties to the Indenture or the Securityholders. Each Securityholder by
its acceptance of the Securities, waives any and all notice of renewal,
extension, modification, amendment or compromise, supplement or waiver
(including granting right of accrual) of the Designated Senior Debt, present or
future, and agrees and consents to the foregoing.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
prior to such payment, a Trust Officer of the Trustee receives written notice
satisfactory to it that payments may not be made under this Article 12;
provided, however, that if on a date not less than two Business Days prior to
the date on which by the terms of this Indenture moneys deposited by the Company
with the Trustee for the payment of the Securities shall have become payable for
any purpose, the Trustee or the Paying Agent shall not have received with
respect to such moneys the notice provided for in this Article 12, then the
Trustee or such Payment Agent will have full power and authority to apply the
same to the purpose for which they were received. Nothing herein will be
construed to relieve any Securityholder from duties imposed upon it under
Section 12.05 with respect to moneys received in violation of the provisions of
this Article. The Company, the relevant Subsidiary Guarantor, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior Debt of
any Subsidiary Guarantor may give the notice; provided, however, that, if an
issue of Senior Debt of any Subsidiary Guarantor has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not the Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 12 with respect to any Senior Debt of any Subsidiary Guarantor which may
at any time be held by it, to the same extent as any other holder of Senior
Debt; and nothing in Article 7 shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article 12 shall
81
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt of any Subsidiary Guarantor, the distribution may be made and the notice
given to their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Defaults Under a
Subsidiary Guarantee or Limit Right To Demand Payment. The failure to make a
payment pursuant to a Subsidiary Guarantee by reason of any provision in this
Article 12 shall not be construed as preventing the occurrence of a default
under such Subsidiary Guaranty. Nothing in this Article 12 shall have any effect
on the right of the Securityholders or the Trustee to make a demand for payment
on any Subsidiary Guarantor pursuant to Article 11 or the relevant Subsidiary
Guaranty.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior Debt
of any Subsidiary Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior Debt
and other indebtedness of such Subsidiary Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 12. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Debt of any Subsidiary Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt of such Subsidiary
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be
82
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Debt of any Subsidiary Guarantor as provided in this Article 12 and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Debt of Subsidiary Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of any Subsidiary Guarantor and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Company or any other Person, money or
assets to which any holders of such Senior Debt shall be entitled by virtue of
this Article 12 or otherwise.
SECTION 12.15. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Debt of any Subsidiary Guarantor, whether such Senior Debt was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Debt and such holder of Senior Debt
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE 13
Miscellaneous
-------------
SECTION 13.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
83
SECTION 13.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Subsidiary Guarantor:
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention of: Xxxxxx X. Xxxxxxx, III
Chief Executive Officer
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention of : Corporate Trust Division
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking
84
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual 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 individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
85
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 13.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 13.11. 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 13.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
RADIO ONE, INC.,
by /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: President
RADIO ONE LICENSES, INC., as
Guarantor,
by /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: President
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee,
by /s/ Xxxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assitant Vice President
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
*/
**/
No. $
12% Senior Subordinated Notes Due 2004
RADIO ONE, INC., a Delaware corporation, promises to pay to ,
or registered assigns, the principal sum of Dollars on May 15, 2004.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
RADIO ONE INC.,
by
-----------------------
President
-----------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee, certifies
that this is one of [Seal]
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
2
----------
*/ If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".
**/ If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
12% Senior Subordinated Note Due 2004
1. Interest
Radio One, Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security from May 19, 1997 to and including May 15, 2000 at a rate of 7%
per annum and after May 15, 2000 until maturity at a rate of 12% per annum;
provided, however, that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest will accrue on this
Security at a rate of 0.50% per annum from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. The Company will pay interest
semiannually on May 15 and November 15 of each year, commencing on November 15,
1997. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from May 19, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 2% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on May 1 or November 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of Securities (including
principal, premium and interest) will be made by wire transfer of immediately
4
available funds to the accounts specified by the holders thereof or, if no U.S.
dollar account maintained by the payee with a bank in the United States is
designated by any holder to the Trustee or the Paying Agent at least 30 days
prior to the relevant due date for payment (or such other date as the Trustee
may accept in its discretion), by mailing a check to the registered address of
such holder.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a New York
trust company ("Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 15, 1997 (the "Indenture"), among the Company, Radio One Licenses, Inc.,
as a Subsidiary Guarantor, and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company limited to $85,478,000 aggregate principal amount (subject to Section
2.07 of the Indenture). The Indenture contains certain restrictive covenants
with respect to the Company and certain of its subsidiaries, including
limitations on (a) the sale of assets, including the equity interests of such
subsidiaries, (b) asset swaps, (c) the payment of Restricted Payments (as
defined), (d) the incurrence of indebtedness and issuance of preferred stock by
the Company or such subsidiaries, (e) the issuance of Equity Interests (as
defined) by such subsidiaries, (f) certain transactions with affiliates, (g) the
incurrence of senior subordinated debt and (h) certain consolidations and
mergers. The Indenture also will prohibit certain
5
restrictions on distributions from such subsidiaries. All of these limitations
and prohibitions, however, are subject to a number of important qualifications.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may
not be redeemed prior to May 15, 2001. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of principal amount), plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date) if redeemed during the 12-month period beginning on May
15 of each of the years indicated below.
Period Percentage
2001 106.000%
2002 104.000%
2003 100.000%
In addition, at any time prior to May 15, 2000, the Company
may redeem up to 25% of the original principal amount of the Securities with the
net proceeds of a Public Equity Offering, at any time or from time to time, at a
redemption price (expressed as a percentage of Accreted Value) of 112%, plus
accrued interest to redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the related interest
payment date); provided, however, that (a) such redemptions shall occur within
180 days following the closing of such Public Equity Offering and (b) after
giving effect to such redemption, at least $64,109,000 aggregate Accreted Value
of the Securities shall remain outstanding.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the
6
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Offers to Purchase
The Company shall be required (a) upon a Change of Control,
subject to certain conditions, to commence an Offer to Purchase all the
Securities and (b) upon the realization of Excess Proceeds in an amount greater
than $5,000,000, to commence an Offer to Purchase Securities in a principal
amount equal to such Excess Proceeds, in each case at a repurchase price equal
to 101% of the Accreted Value of the Securities to be repurchased plus accrued
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Debt, as defined in
the Indenture. To the extent provided in the Indenture, Senior Debt must be paid
before the Securities may be paid. The Company agrees, and each Securityholder
by accepting a Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
7
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount outstanding of the
Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure the Securities, or to add additional covenants or surrender rights and
powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
8
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in
payment of principal on the Securities when due; (ii) default for 30 days in
payment of interest on the Securities; (iii) failure to purchase the Securities
required to be purchased pursuant to paragraph 7; (iv) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (v) certain accelerations (including
failure to pay within 30 days after final maturity) of other Indebtedness of the
Company or any Restricted Subsidiary if the amount accelerated (or so unpaid)
exceeds $5,000,000; (vi) certain events of bankruptcy or insolvency with respect
to the Company or any Restricted Subsidiary; and (vii) certain judgments or
decrees for the payment of money in excess of $5,000,000. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Securities may declare all the Securities to
be due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
9
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including,
without limitation, the obligations of the Holders with respect to a
10
registration and the indemnification of the Company to the extent provided
therein.
21. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE.
REQUESTS MAY BE MADE TO:
ATTENTION OF
11
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
______________
Date: ________________ Your Signature: _____________________
________________________________________________________________________________
______________
Sign exactly as your name appears on the other side of this Security.
12
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.07 OR 4.10 OF THE INDENTURE, CHECK THE BOX: / /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.07 OR 4.10 OF THE INDENTURE,
STATE THE AMOUNT: $
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
(SIGNATURE MUST BE GUARANTEED BY A
MEMBER FIRM OF THE NEW YORK STOCK
EXCHANGE OR A COMMERCIAL BANK OR TRUST
COMPANY)
RULE 144A/REGULATION S APPENDIX
[FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A, INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7)) AND TO CERTAIN PERSONS
IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S.]
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Definitive Security" means a certificated Initial Security
bearing the restricted securities legend set forth in Section 2.3(d) and which
is held by an IAI in accordance with Section 2.1(c).
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Securities" means the 12% Senior Subordinated Notes
Due 2004 to be issued pursuant to this Indenture in connection with a Registered
Exchange Offer pursuant to the Registration Rights Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Credit Suisse First Boston
Corporation and Nationsbanc Capital Markets, Inc.
"Initial Securities" means the 12% Senior Subordinated Notes
Due 2004, issued under this Indenture on or about the date hereof.
"Private Exchange" means the offer by the Company, pursuant to
the Registration Rights Agreement, to the Initial Purchasers to issue and
deliver to each Initial Purchaser, in exchange for the Initial Securities held
by such Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Purchase Agreement" means the Purchase Agreement dated May
14, 1997, between the Company and the Initial Purchasers.
2
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated May 14, 1997, among the Company and the Initial Purchasers.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration
statement issued by the Company, in connection with the offer and sale of
Initial Securities or Private Exchange Securities, pursuant to the Registration
Rights Agreement.
"Transfer Restricted Securities" means Definitive Securities
and Securities that bear or are required to bear the legend set forth in Section
2.3(d)hereto.
1.2 Other Definitions
Defined in
Term Section:
"Agent Members" ............................. 2.1(b)
"Global Security" ............................. 2.1(a)
"Regulation S" ............................. 2.1(a)
"Rule 144A" ............................. 2.1(a)
3
2. The Securities.
2.1 Form and Dating.
The Initial Securities are being offered and sold by the
Company pursuant to the Purchase Agreement.
(a) Global Securities. Initial Securities offered and sold to
a QIB in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global Securities in definitive, fully registered form
without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit 1 hereto (each, a Global Security"),
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depository (or with such other custodian as the Depository may direct), and
registered in the name of Cede & Co., a nominee of the Depository, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Security, and the Depository
may be treated by the Company, the Trustee and any agent of
4
the Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in this
Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery of certificated
Securities. Purchasers of Initial Securities who are IAI's and are not QIBs and
did not purchase Initial Securities sold in reliance on Regulation S will
receive Definitive Securities; provided, however, that upon transfer of such
Definitive Securities to a QIB, such Definitive Securities will, unless the
Global Security has previously been exchanged, be exchanged for an interest in a
Global Security pursuant to the provisions of Section 2.3.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
Initial Securities for original issue in an aggregate principal amount of
$85,478,000 and (2) Exchange Securities or Private Exchange Securities for issue
only in a Registered Exchange Offer or a Private Exchange, respectively,
pursuant to the Registration Rights Agreement, for a like principal amount of
Initial Securities, in each case upon a written order of the Company signed by
two Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company. Such order shall specify the amount of the Securities
to be authenticated and the date on which the original issue of Securities is to
be authenticated and whether the Securities are to be Initial Securities,
Exchange Securities or Private Exchange Securities. The aggregate principal
amount of Securities outstanding at any time may not exceed $85,478,000 except
as provided in Section 2.07 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
5
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act, pursuant to
Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse of
the Security); or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect (in
the form set forth on the reverse of the Security); or
(C) if such Definitive Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144; or (x) in reliance on another
exemption from the registration requirements of the Securities
Act: (i) a certification to that effect (in the form set forth
on the reverse of the Security) and (ii) if the Company or
Registrar so requests, an opinion of counsel or other evidence
reasonably satisfactory to them as to the compliance with the
restrictions set forth in the legend set forth in Section
2.3(d)(i).
6
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred (A) to a
QIB in accordance with Rule 144A, or (B) outside the United States in
an offshore transaction within the meaning of Regulation S and in
compliance with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any)
7
and the procedures of the Depository therefor. A transferor of a beneficial
interest in a Global Security shall deliver to the Registrar a written order
given in accordance with the Depositary's procedures containing information
regarding the participant account of the Depositary to credited with a
beneficial interest in the Global Security. The Registrar shall, in accordance
with such instructions instruct the Depositary to credit to the account of the
Person specified in such instructions a beneficial interest in the Global
Security and to debit the account of the Person making the transfer the
beneficial interest in the Global Security being transferred.
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), 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.
(iii) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4 or
Section 2.09 of the Indenture, prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule 144A
or Regulation S, as the case may be) and such other procedures as may
from time to time be adopted by the Company.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form:
8
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
"THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(V) TO THE COMPANY, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITHIN ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE. "THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Definitive Security will also bear the following
additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted
9
Security represented by a Global Security) pursuant to Rule 144 under
the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a certificated Security that does not bear the
legend set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security, if the Holder
certifies in writing to the Registrar that its request for
such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of
the Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all requirements
pertaining to legends on such Initial Security or such Private Exchange
Security will cease to apply, the requirements requiring any such
Initial Security or such Private Exchange Security issued to certain
Holders be issued in global form will cease to apply, and a
certificated Initial Security or Private Exchange Security without
legends will be available to the transferee of the Holder of such
Initial Securities or Private Exchange Securities upon exchange of such
transferring Holder's certificated Initial Security or Private Exchange
Security or directions to transfer such Holder's interest in the Global
Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain
10
Holders be issued in global form will cease to apply and certificated
Initial Securities with the restricted securities legend set forth in
Exhibit 1 hereto will be available to Holders of such Initial
Securities that do not exchange their Initial Securities, and Exchange
Securities in certificated or global form will be available to Holders
that exchange such Initial Securities in such Registered Exchange
Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Private Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will still apply, and Private Exchange Securities in
global form with the Restricted Securities Legend set forth in Exhibit
1 hereto will be available to Holders that exchange such Initial
Securities in such Private Exchange.
(e) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
certificated or Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to the Depository for cancelation or retained
and canceled by the Trustee. At any time prior to such cancelation, if any
beneficial interest in a Global Security is exchanged for certificated or
Definitive Securities, redeemed, repurchased or canceled, the principal amount
of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Securities, Definitive Securities and Global Securities at the
Registrar's or co-registrar's request.
11
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.10 and 9.05.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any certificated or
Definitive Security selected for redemption in whole or in part
pursuant to Article 3 of this Indenture, except the unredeemed portion
of any certificated or Definitive Security being redeemed in part, or
(b) any Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem Securities or
15 Business Days before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depository or other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any
12
participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to or upon the order of the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only
through the Depository subject to the applicable rules and procedures
of the Depository. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository or with
the Trustee as custodian for the Depository pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of certificated
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the
13
Trustee in writing that it elects to cause the issuance of certificated
Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depository
to the Trustee located in the Borough of Manhattan, The City of New York, to be
so transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Security, an equal aggregate principal amount of certificated
Initial Securities of authorized denominations. Any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depository shall direct. Any certificated
Initial Security delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.3(d), bear the restricted
securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of either of the events
specified in Section 2.4(a), the Company will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (i) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (ii) OUTSIDE THE UNITED STATES IN A TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (iv) PURSUANT TO AN EFFECTIVE REGISTRATION
2
STATEMENT UNDER THE SECURITIES ACT OR (v) TO THE COMPANY, IN EACH OF CASES (i)
THROUGH (v) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.]1
--------
1. Include if a Definitive Security to be held by an institutional "accredited
investor" (as defined in Rule 501(a),(1),(2),(3) or (7) under the Securities
Act).
3
No. $
12% Senior Subordinated Notes Due 2004
RADIO ONE, INC., a Delaware corporation, promises to pay to ,
or registered assigns, the principal sum of Dollars on May 15, 2004.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
RADIO ONE, INC.,
by
-----------------------
President
-----------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred [Seal]
to in the Indenture.
by
-----------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
12% Senior Subordinated Note Due 2004
1. Interest
Radio One, Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security from May 19, 1997 to and including May 15, 2000 at a rate of 7%
per annum and after May 15, 2000 until maturity at a rate of 12% per annum;
provided, however, that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest will accrue on this
Security at a rate of 0.50% per annum from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. The Company will pay interest
semiannually on May 15 and November 15 of each year, commencing on November 15,
1997. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from May 19, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 2% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on May 1 or November 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts
5
specified by The Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and interest)
by mailing a check to the registered address of each Holder thereof; provided,
however, that payments on a certificated Security in an aggregate principal
amount of $1,000,000 or more will be made by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such later date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a New York
trust company ("Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 15, 1997 (the "Indenture"), among the Company, Radio One Licenses, Inc.,
as a Subsidiary Guarantor, and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect
on the date of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company limited to $85,478,000 aggregate principal amount (subject to Section
2.07 of the Indenture). The Indenture contains certain restrictive covenants
with respect to the Company and certain of its subsidiaries, including
limitations on (a) the sale of assets, including the equity interests of such
subsidiaries, (b) asset swaps, (c) the payment of Restricted Payments (as
defined), (d) the incurrence of indebtedness and issuance of preferred stock by
the Company or such subsidiaries, (e) the issuance of
6
Equity Interests (as defined) by such subsidiaries, (f) certain transactions
with affiliates, (g) the incurrence of senior subordinated debt and (h) certain
consolidations and mergers. The Indenture also will prohibit certain
restrictions on distributions from such subsidiaries. All of these limitations
and prohibitions, however, are subject to a number of important qualifications.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may
not be redeemed prior to May 15, 2001. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of Accreted Value), plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date), if redeemed during the 12-month period beginning on May
15 of each of the years indicated below:
Period Percentage
2001 .............................. 106.000%
2002 .............................. 104.000%
2003 .............................. 100.000%
In addition, at any time prior to May 15, 2000, the Company
may redeem up to 25% of the original principal amount of the Securities with the
net proceeds of a Public Equity Offering, at any time or from time to time, at a
redemption price (expressed as a percentage of Accreted Value) of 112%, plus
accrued interest to redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the related interest
payment date); provided, however, that (a) such redemption shall occur within
180 days following the closing of such Public Equity Offering and (b) after
giving effect to such redemption, at least $64,109,000 aggregate Accreted Value
of the Securities shall remain outstanding.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000.
7
If money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Offers to Purchase
The Company shall be required (a) upon a Change of Control,
subject to certain conditions, to commence an Offer to Purchase all the
Securities and (b) upon the realization of Excess Proceeds in an amount greater
than $5,000,00, to commence an Offer to Purchase Securities in a principal
amount equal to such Excess Proceeds, in each case at a repurchase price equal
to 101% of the Accreted Value of the Securities to be repurchased plus accrued
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Debt, as defined in
the Indenture. To the extent provided in the Indenture, Senior Debt must be paid
before the Securities may be paid. The Company agrees, and each Securityholder
by accepting a Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 (or in the case of Definitive Securities sold to
institutional accredited investors as described in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act, minimum denominations of $200,000) and whole
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
8
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment
date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount outstanding of the
Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure the Securities, or to add additional covenants or surrender rights and
9
powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in
payment of principal on the Securities when due; (ii) default for 30 days in
payment of interest on the Securities; (iii) failure to purchase the Securities
required to be purchased pursuant to paragraph 7; (iv) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (v) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Restricted Subsidiary if the amount
accelerated (or so unpaid) exceeds $5,000,000; (vi) certain events of bankruptcy
or insolvency with respect to the Company or any Restricted Subsidiary; and
(vii) certain judgments or decrees for the payment of money in excess of
$5,000,000. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Securities may
declare all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations
10
owed to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the
11
Registration Rights Agreement, including, without limitation, the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.
21. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE.
REQUESTS MAY BE MADE TO:
ATTENTION OF
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: ________________ Your Signature: _____________________
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
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In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration
statement under the Securities Act of 1933;
or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is given that such transfer
is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933;
or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation
S under the Securities Act in compliance
with Rule 904 under the Securities Act of
1933; or
(5) [ ] pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate
in the name of any person other than the registered holder
thereof; provided, however, that if box (4) or (5) is checked,
the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions,
certifications and other information as the Company has
reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
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subject to, the registration requirements of the Securities
Act of 1933, such as the exemption provided by Rule 144 under
such Act.
------------------------
Signature
Signature Guarantee:
--------------------- --------------------------
Signature must be guaranteed Signature
--------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized officer
of this Global of this Global following such of Trustee or
Security Security decrease or increase) Securities Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.07 or 4.10 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.07 or 4.10 of the Indenture,
state the amount in principal amount: $
Date: _______________ Your Signature: ______________________
(Sign exactly as your name appears
on the other side of this Security.)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)