Exhibit 3.1
AMENDED AND RESTATED
TRUST AGREEMENT
among
KDSM, INC., as Depositor,
and
First Union National Bank of Maryland, as Property Trustee,
First Union Bank of Delaware, as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of March 12, 1997
XXXXXXXX CAPITAL
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TABLE OF CONTENTS
Page
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ARTICLE I Defined Terms.................................................2
Section 1.01. Definitions...................................................2
ARTICLE II Establishment of the Trust...................................16
Section 2.01. Name.........................................................16
Section 2.02. Principal Place of Business of the
Trust and the Delaware Trustee...............................16
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses......................................16
Section 2.04. Issuance of the Preferred Securities.........................16
Section 2.05. Issuance of the Common Securities;
Subscription and Purchase of the
KDSM Senior Debentures.......................................16
Section 2.06. Declaration of Trust.........................................17
Section 2.07. Authorization to Enter into Certain
Transactions.................................................17
Section 2.08. Assets of Trust..............................................23
Section 2.09. Title to Trust Property......................................23
ARTICLE III Payment Account..............................................23
Section 3.01. Payment Account..............................................23
ARTICLE IV Distributions; Redemption....................................24
Section 4.01. Distributions; Rights of Holders of
Preferred Securities.........................................24
Section 4.02. Redemption...................................................25
Section 4.03. Subordination of Common Securities...........................27
Section 4.04. Payment Procedures...........................................28
Section 4.05. Tax Returns and Reports......................................28
Section 4.06 Payment of Taxes, Duties, Etc. of the Trust..................29
Section 4.07. Payments under Indenture.....................................29
Section 4.08. Change of Control............................................29
ARTICLE V Trust Securities Certificates................................33
Section 5.01. Initial Ownership............................................33
Section 5.02. The Trust Securities Certificates............................33
Section 5.03. Delivery of Trust Securities Certificates....................34
Section 5.04. Global Securities............................................34
Section 5.05. Registration, Registration of Transfer and Exchange..........35
Section 5.06. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates......................................39
Section 5.07. Persons Deemed Securityholders...............................40
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Section 5.08. Access to List of Securityholders' Names
and Addresses................................................40
Section 5.09. Maintenance of Office or Agency..............................41
Section 5.10. Appointment of Paying Agent..................................41
Section 5.11. Ownership of Common Securities by Depositor..................42
Section 5.12. Notices to Clearing Agency...................................42
Section 5.13. Rights of Securityholders....................................42
ARTICLE VI Acts of Securityholders; Meetings; Voting....................42
Section 6.01. Limitations on Voting Rights.................................42
Section 6.02. Notice of Meetings...........................................44
Section 6.03. Meetings of Preferred Securityholders........................45
Section 6.04. Voting Rights................................................45
Section 6.05. Proxies, Etc.................................................45
Section 6.06. Securityholder Action by Written Consent.....................46
Section 6.07. Record Date for Voting and Other Purposes....................46
Section 6.08. Acts of Securityholders......................................46
Section 6.09. Inspection of Records........................................47
ARTICLE VII Representations and Warranties of the
Property Trustee, the Administrative
Trustees and the Delaware Trustee............................48
ARTICLE VIII The Trustees.................................................50
Section 8.01. Certain Duties and Responsibilities..........................50
Section 8.02. Notice of Defaults...........................................51
Section 8.03. Certain Rights of Property Trustee...........................51
Section 8.04. Not Responsible for Recitals or Issuance of
Securities...................................................52
Section 8.05. May Hold Securities..........................................52
Section 8.06. Compensation; Fees; Indemnity................................52
Section 8.07. Corporate Property Trustee Required;
Eligibility of Trustees......................................53
Section 8.08. Conflicting Interests........................................54
Section 8.09. Co-Trustees and Separate Trustee.............................54
Section 8.10. Resignation and Removal; Appointment of
Successor....................................................56
Section 8.11. Acceptance of Appointment by Successor.......................57
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business.......................................58
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust...........................................58
Section 8.14. Reports by Property Trustee..................................58
Section 8.15. Reports to the Property Trustee..............................59
Section 8.16. Evidence of Compliance with Conditions
Precedent....................................................59
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Section 8.17. Number of Trustees...........................................59
Section 8.18. Delegation of Power..........................................60
Section 8.19. Outside Business.............................................60
ARTICLE IX Dissolution and Liquidation..................................60
Section 9.01. Dissolution Upon Expiration Date.............................60
Section 9.02. Early Dissolution............................................61
Section 9.03. Dissolution..................................................61
Section 9.04. Liquidation..................................................61
ARTICLE X Miscellaneous Provisions.....................................64
Section 10.01. Limitation of Rights of Securityholders......................64
Section 10.02. Amendment....................................................64
Section 10.03. Agreement to be Bound........................................65
Section 10.04. Separability.................................................66
Section 10.05. Governing Law................................................66
Section 10.06. Successors...................................................66
Section 10.07. Headings.....................................................66
Section 10.08. Notice and Demand............................................66
Section 10.09. Agreement Not to Petition....................................67
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act................................................67
Section 10.11. Reports......................................................67
Section 10.12. Counterparts.................................................68
Section 10.13. Third Party Beneficiaries....................................69
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Exhibit A Certificate of Trust
Exhibit B Form of DTC Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
Exhibit F Form of Restricted Securities Transfer Certificate
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Xxxxxxxx Capital
Reconciliation and tie between Trust Agreement
and the Trust Indenture Act of 1939, as Amended
relating to:
Trust Indenture Trust Agreement
Act Section Section
---------------- -----------------
Section 310(a)(1) ................ 8.07
(a)(2) ................ 8.07
(a)(3) ................ 8.09
(a)(4) ................ Not Applicable
(b) ................ 8.08, 8.10
Section 311(a) ................ 8.13
(b) ................ 8.13
Section 312(a) ................ 5.08
(b) ................ 5.08
(c) ................ 5.08
Section 313(a) ................ 8.14(a)
(b) ................ 8.14(b)
(c) ................ 8.14(a), 8.14(b)
(d) ................ 8.14(c)
Section 314(a) ................ 8.15
(b) ................ Not Applicable
(c)(1) ................ 8.16
(c)(2) ................ 8.16
(c)(3) ................ 8.16
(d) ................ Not Applicable
(e) ................ 1.01
Section 315(a) ................ 8.01
(b) ................ 8.02, 8.14(b)
(c) ................ 8.01(a)
(d) ................ 8.01, 8.03
Section 316(a)
(a)(1)(A) ................ Not Applicable
(a)(1)(B) ................ Not Applicable
(a)(2) ................ Not Applicable
(b) ................ Not Applicable
(c) ................ Not Applicable
Section 317(a)(1) ................ Not Applicable
(a)(2) ................ Not Applicable
(b) ................ 5.10
Section 318(a) ................ 10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 12,
1997, among (i) KDSM, Inc., a Maryland corporation, as depositor (the
"Depositor" or "KDSM, Inc."), (ii) First Union National Bank of Maryland, a
national banking association, as trustee (the "Property Trustee" and, in its
separate corporate capacity, and not in its capacity as Property Trustee, the
Bank"), (iii) First Union Bank of Delaware, a Delaware banking corporation as
Delaware trustee (the "Delaware Trustee"), and (iv) Xxxxx X. Xxxxx, an
individual, and Xxxxx X. Xxx, an individual, each of whose address is 0000 X.
00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (each an "Administrative Trustee" and
referred to collectively as the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustees referred to
collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of February 24, 1997 (the "Original Trust Agreement"), and
by the execution and filing by the Property Trustee, the Delaware Trustee and
Xxxxx X. Xxx with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on February 24, 1997, attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee desire to amend and restate the Original Trust Agreement as set forth
herein to provide for, among other things, (i) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the KDSM Senior
Debentures (as defined herein), (ii) the issuance and sale of the Common
Securities (as defined herein) by the Trust to the Depositor, (iii) the issuance
and sale of the Preferred Securities (as defined herein) by the Trust pursuant
to the Purchase Agreement (as defined herein) and (iv) the appointment of the
Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for the
benefit of the other party and for the benefit of the Securityholders (as
defined herein), hereby amends and restates the Original Trust Agreement in its
entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act (as defined herein), either directly or by reference
therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Accredited Investors" means institutional "accredited
investors" as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities
Act who are not QIBs.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Value (as defined herein) and/or a given period, the amount
of Additional Interest Attributable to Deferral paid by the Depositor on a Like
Amount of the KDSM Senior Debentures for such period (which shall accrue
additional Distributions at a rate of 11 5/8% per annum compounded quarterly)
and Additional Interest Attributable to Taxes (as defined in the Indenture), if
applicable.
"Additional Amounts Attributable to Deferral" has the meaning
ascribed to such term in the Indenture.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in his or her capacity as Administrative Trustee of the Trust
heretofore formed and continued hereunder and not in his or her individual
capacity, or such Administrative
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Trustee's successor in interest in such capacity, or any successor
Administrative Trustee appointed as herein provided.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any other
Person that owns, directly or indirectly, 5% or more of such Person's Equity
Interests or any officer or director of any such Person or other Person or, with
respect to any natural Person, any Person having a relationship with such Person
or other Person by blood, marriage or adoption not more remote than first cousin
or (iii) any other Person 10% or more of the voting Equity Interests of which
are beneficially owned or held directly or indirectly by such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 5.04(a).
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bank Credit Agreement" means the Second Amended and Restated
Credit Agreement, dated as of May 31, 1996, as amended, between Xxxxxxxx, the
Subsidiaries (as defined in the Parent Preferred Articles Supplementary) of
Xxxxxxxx identified on the signature pages thereof under the caption "Subsidiary
Guarantors," the lenders named therein, and The Chase Manhattan Bank, N.A., as
agent, as such agreement may be amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified from time
to time (including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing). The term "Bank Credit Agreement" shall
include any amendments, renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplements or any other modifications that
increase the principal amount of the Indebtedness or the commitments to lend
thereunder.
"Bankruptcy Event" means, with respect to any Person:
(i) a decree or order is entered by a court having competent
jurisdiction in the premises (a) for relief in respect of such Person in an
involuntary case or proceeding under the applicable Bankruptcy Laws or (b)
adjudging such Person a
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bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of such Person under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or of any substantial
part of any of its properties, or ordering the winding up or liquidation of any
of its affairs, and any such decree or order for relief shall continue to be in
effect, or any such other decree or order shall be unstayed and in effect, for a
period of 60 consecutive days; or
(ii) (a) such Person institutes a voluntary case or proceeding under
any applicable Bankruptcy Laws or any other case or proceeding to be adjudicated
a bankrupt or insolvent, (b) such Person consents to the entry of a decree or
order for relief in respect of such Person in any involuntary case or proceeding
under any applicable Bankruptcy Laws or to the commencement of bankruptcy or
insolvency proceedings against such Person, (c) such Person files a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, (d) such Person (x) consents to the filing of any such petition or
to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of any such Person
or of any substantial part of its property, (y) makes an assignment for the
benefit of creditors or (z) admits in writing its inability to pay its debts
generally as they become due or (e) takes corporate action in furtherance of any
such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banking institutions in the State of Maryland or The
City of New York are authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate Trust Office or
the Debenture Trustee's principal corporate trust office is closed for business.
"Capital Lease Obligation" means any obligation of the Trust
under any capital lease of real or personal property which, in accordance with
GAAP, has been recorded as a capitalized lease obligation.
"Certificate of Trust" means the Certificate of Trust referred
to in the recitals to this Trust Agreement.
"Change of Control" has the meaning specified in the Parent
Preferred Articles Supplementary as of the date hereof.
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"Change of Control Offer" has the meaning specified in Section
4.08(a).
"Change of Control Purchase Date" has the meaning specified in
Section 4.08(a).
"Change of Control Purchase Notice" has the meaning specified
in Section 4. 08 (b)
"Change of Control Purchase Price" has the meaning specified
in the Parent Preferred Articles Supplementary as of the date hereof.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. DTC will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the Closing Date as defined in the
Purchase Agreement (as defined herein), which date is also the date of execution
and delivery of this Trust Agreement.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Value in ordinary circumstances of
$100 and having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the
Property Trustee located at First Union National Bank of Maryland, 000 Xxxx Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000. Attention: Xxxxxxxx Xxxxxxx.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
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"Debenture Redemption Date" means "Redemption Date" as defined
in the Indenture.
"Debenture Trustee" means First Union National Bank of
Maryland, a national banking association.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. REWRITE Section 3801, et seq., as it may be
amended from time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble.
"Disqualified Equity Interests" means any Equity Interests
that, either by their terms or by the terms of any security into which they are
convertible or exchangeable or otherwise, are or upon the happening of an event
or passage of time would be required to be redeemed prior to any Stated Maturity
of the principal of the Securities or are redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or are convertible into
or exchangeable for debt securities at any time prior to any such Stated
Maturity at the option of the holder thereof.
"Distribution Payment Date" has the meaning specified in
Section 4.01(a).
"Distribution Rate" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the
Securities as provided in Section 4.01.
"DTC" means The Depository Trust Company.
"DTC Agreement" means the agreement among the Trust, the
Property Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date, relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and supplemented from
time to time.
"Early Dissolution Event" has the meaning specified in Section
9.02.
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"Equity Interest" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, of such Person, including any Preferred Equity Interests.
"Event of Default" means (a) the occurrence of a Debenture
Event of Default, (b) the failure to obtain the consent of the Holders of the
Outstanding Preferred Securities with respect to any action by the Trust which
cannot be taken without such consent under this Trust Agreement, (c) the failure
to make Distributions for any period for which KDSM, Inc. pays interest on the
KDSM Senior Debentures, or (d) failure of the Trust to perform its obligations
under this Agreement.
"Existing Notes" means the 1993 Notes and the 1995 Notes.
"Existing Indentures" means (i) the Indenture, dated as of
December 9, 1993, among Xxxxxxxx, the Guarantors (as defined therein) and First
Union National Bank of North Carolina, as amended and (ii) the Indenture, dated
as of August 28, 1995, among Xxxxxxxx Broadcast Group, Inc., the Guarantors (as
defined therein) and the United States Trust Company of New York as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between KDSM, Inc. and the Trust, substantially in the form attached
as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9. 01.
"Extension Period" has the meaning specified in Section 4. 01.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"GAAP" means generally accepted accounting principles in the
United States, consistently applied, as in effect on the date the 1993 Notes
were issued.
"Global Security" means a security in global form evidencing
all or a part of the Preferred Securities to be issued as book-entry securities
issued to DTC in accordance with Section 5. 04.
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"Guarantee Agreement" means the Parent Guarantee Agreement
executed and delivered by Xxxxxxxx and the First Union National Bank of
Maryland, a national banking association, contemporaneously with the execution
and delivery of this Trust Agreement, for the benefit of the Holders of the
Preferred Securities, as amended from time to time.
"Guarantee Trustee" means First Union National Bank of
Maryland, as trustee with respect to the Parent Guarantee Agreement.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness contained in this Section guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (ii)
to purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss,
(iii) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services without requiring that
such property be received or such services be rendered), (iv) to maintain
working capital or equity capital of the debtor, or otherwise to maintain the
net worth, solvency or other financial condition of the debtor or (v) otherwise
to assure a creditor against loss; provided that the term "guarantee" shall not
include endorsements for collection or deposit, in either case in the ordinary
course of business.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Equity Interests of such Person, or any
warrants, rights or options to acquire such Equity Interests, now or hereafter
outstanding, (ii) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the
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event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
obligations under Interest Rate Agreements of such Person, (v) all Capital Lease
Obligations of such Person, (vi) all Indebtedness referred to in clauses (i)
through (v) above of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vii) all Guaranteed Debt of such
Person, (viii) all Disqualified Equity Interests valued at the greater of their
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends, and (ix) any amendment, supplement, modification, deferral, renewal,
extension, refunding or refinancing of any liability of the types referred to in
clauses (i) through (viii) above.
"Indemnified Person" has the meaning specified in Section
8.06.
"Indenture" means the Indenture, dated as of March 12, 1997,
among Xxxxxxxx, KDSM, Inc. and the Debenture Trustee, as amended or supplemented
from time to time.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Initial Purchasers" means Xxxxx Xxxxxx Inc. and Chase
Securities Inc.
"Investment Company Act Event" means the receipt by the Trust
or the Depositor of an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act of 1940, as amended
(the "1940 Act"), to the effect that as a result of the occurrence of a change
in law or regulation or a change in official interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), the Trust or KDSM, Inc. is or
will be considered an "investment company" which is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of issuance of the Preferred Securities.
"Investments" means, with respect to any Person,
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directly or indirectly, any advance, loan (including guarantees), or other
extension of credit 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, acquisition or ownership by such
Person of any Equity Interests, bonds, notes, debentures or other securities or
assets issued or owned by any other Person and all other items that would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"KDSM Inc." has the meaning specified in the preamble.
"KDSM Senior Debentures" means the $206,200,000 aggregate
principal amount of the Depositor's 11 5/8% Senior Debentures due 2009, issued
pursuant to the Indenture.
"Lien" means any lien (statutory or otherwise), pledge,
charge, mortgage, privilege, hypothecation, security interest or other
encumbrance upon or with respect to any property of any kind (including any
conditional sale or other title retention agreement, any leases in the nature
thereof, and any agreement to give any security interest), real or personal,
movable or immovable, now owned or hereafter acquired.
"Like Amount" means (i) with respect to a redemption of Trust
Securities for cash, Trust Securities having an aggregate Liquidation Value
equal to the principal amount of the KDSM Senior Debentures to be
contemporaneously redeemed in accordance with the Indenture and (ii) with
respect to a distribution of the KDSM Senior Debentures to Holders of Trust
Securities in connection with a Tax Event, the KDSM Senior Debentures having a
principal amount equal to the aggregate Liquidation Value of the Trust
Securities of the Holder to whom such KDSM Senior Debentures are distributed and
(iii) with respect to Additional Amounts, Trust Securities having an aggregate
Liquidation Value equal to the principal amount of KDSM Senior Debentures.
"Liquidation Value" means the stated liquidation amount of
$100 per Trust Security.
"Liquidation Date" means the date on which the KDSM Senior
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(a).
"1995 Notes" mean Xxxxxxxx'x 10% Senior Subordinated Notes due
2005.
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"1993 Notes" mean Xxxxxxxx'x 10% Senior Subordinated Notes due
2003.
"Offering Memorandum" has the meaning specified in Section
2.07(a)
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President or the Treasurer of
the Depositor and (ii) the Secretary or an Assistant Secretary of the Depositor,
and delivered to the appropriate Trustee; provided, however, that such
certificate may be signed by two of the officers or directors listed in clause
(i) above in lieu of being signed by one of such officers or directors listed in
such clause (i) and one of the officers listed in clause (ii) above. One of the
officers signing an Officers' Certificate given pursuant to Section 8.15 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
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(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement;
(iii) Preferred Securities which have been issued in exchange
for or in lieu of which other Preferred Securities have been
authenticated and delivered pursuant to this Trust Agreement; and
(iv) Preferred Securities exchanged for the KDSM Senior
Debentures pursuant to Section 9.04;
provided, however, that in determining whether the Holders of the requisite
aggregate Liquidation Value of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent. or waiver
hereunder, Preferred Securities owned by the Depositor, any of the Trustees or
any Affiliate of the Depositor or any of the Trustees shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing shall
not apply at any time when all of the Outstanding Preferred Securities are owned
by the Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a
book-entry interest as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency)
"Parent Debenture Guarantee" means the guarantee by Xxxxxxxx
of the KDSM Senior Debentures included in the Indenture which may become
effective in certain circumstances.
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"Parent Preferred" means the Series C Preferred Stock, par
value $.01 per share of Xxxxxxxx, having a liquidation amount of $100 per share.
"Parent Preferred Articles Supplementary" means the operative
document pursuant to which the Parent Preferred were issued.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the KDSM Senior Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance with
Section 4.01.
"Person" means any individual, corporation, partnership, joint
venture, trust, company, including without limitation, a limited liability
company, association, joint stock company, business trust or corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" has the meaning specified in Section
5.04(b).
"Pledge Agreement" means the Pledge and Security Agreement,
dated March 12, 1997, between the Depositor and First Union National Bank of
Maryland, as Collateral Agent.
"Preferred Equity Interest," as applied to the Equity Interest
of any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over Equity Interests of any other
class of such Person.
"Preferred Rate" has the meaning specified in Section 4.01(a)
"Preferred Security" or "Security" means an undivided
beneficial interest in the assets of the Trust, having a Liquidation Value under
ordinary circumstances of $100 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
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"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor Property Trustee appointed as herein
provided.
"Purchase Agreement" means the Purchase Agreement, dated as of
March 5, 1997, among the Trust, the Depositor, Xxxxxxxx and the Initial
Purchasers.
"QIBs" means "qualified institutional buyers" as defined
pursuant to Rule 144A under the Securities Act of 1933, as amended.
"Qualified Institutional Buyer" means a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the KDSM Senior Debentures shall be a Redemption Date for a Like Amount of
Trust Securities without any further action of the Trust.
"Redemption Price" means, with respect to any Redemption Date
of any Trust Security, (i) the Liquidation Value of such Trust Security,
multiplied by the sum of (a) 100% plus (b) the percentage premium, if any, paid
by the Depositor upon the concurrent redemption of a bike Amount of the KDSM
Senior Debentures, plus (ii) accumulated and unpaid Distributions to such date,
whether or not earned or declared.
"Registration Default" has the meaning specified in Section
2(d) of the Registration Rights Agreement.
"Registration Default Distributions" has the meaning specified
in Section 2(d) of the Registration Rights Agreement.
"Registration Rights Agreement" means the registration rights
agreements dated as of March 5, 1997, among the Trust, the Depositor, Xxxxxxxx
and Xxxxx Xxxxxx Inc. and Chase Securities Inc. as initial purchasers.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Required Filing Dates" has the meaning specified in Section
10.11.
"Restricted Preferred Security" has the meaning specified in
Section 5.05.
"Restricted Preferred Securities Certificate" means a
certificate substantially in the form set forth in Exhibit E bearing the
Restrictive Preferred Securities Legend set forth therein.
"Restricted Preferred Securities Legend" means the restricted
securities legend set forth in the certificate in Exhibit E.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Xxxxxxxx" means Xxxxxxxx Broadcast Group, Inc., a Maryland
corporation.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon, means the date specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest is due and payable.
"Tax Event" means the receipt by the Trust or the Depositor,
as the case may be, of an Opinion of Counsel experienced in such matters to the
effect that, as a result of (i) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws or treaties (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or (ii) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement (including any notice or announcement of intent to adopt
such procedures or regulations) ("Administrative Action"), or (iii) any
amendment to, clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision or any
interpretation or pronouncement that provides for a position with respect to
such Administrative Action or judicial decision that differs from the
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theretofore generally accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body, irrespective of the manner in
which such amendment, clarification or change is made known, which amendment,
clarification, or change is effective or such pronouncement or decision is
announced on or after the Closing Date, there is more than an insubstantial risk
that (i) the Trust is, or will be, subject to United States federal income tax
with respect to interest received on the KDSM Senior Debentures, (ii) interest
payable by the Depositor on the KDSM Senior Debentures is not, or will not be,
fully deductible for United States federal income tax purposes, or (iii) the
Trust is, or will be, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the KDSM Senior Debentures, (ii)
any cash on deposit in, or owing to, the Payment Account and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
terms of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
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"Voting Rights Triggering Event" has the meaning specified in
the Parent Preferred Articles Supplementary.
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ARTICLE II
Establishment of the Trust
Section 2.01. Name. The Trust created and continued hereby
shall be known as "Xxxxxxxx Capital," as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders of
Trust Securities and the other Trustees, in which name the Trustees may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Principal Place of Business of the Trust and the
Delaware Trustee. The principal place of business of the Trust is c/x Xxxxxxxx
Broadcast Group, Inc., 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. The
address of the Delaware Trustee is One Xxxxxx Square, First Floor, 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
Section 2.03. Initial Contribution of Trust Property:
Organizational Expenses. The Property Trustee acknowledges receipt from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor hereby agrees to pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04. Issuance of the Preferred Securities. On March
5, 1997, the Depositor, on behalf of the Trust and pursuant to the Original
Trust Agreement, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute and deliver
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of 2,000,000 Preferred
Securities having an aggregate Liquidation Value of $200,000,000 against receipt
of the aggregate purchase price of such Preferred Securities of $200,000,000,
which amount the Administrative Trustees shall promptly deliver to the Property
Trustee.
Section 2.05. Issuance of the Common Securities: Subscription
and Purchase of the KDSM Senior Debentures. Contemporaneously with the execution
and delivery of this Trust Agreement, (x) the Administrative Trustees, on behalf
of the Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
62,000 Common Securities for the purchase price of $6,200,000 and (y) the
Administrative Trustees,
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on behalf of the Trust, shall subscribe to and purchase from the Depositor, the
KDSM Senior Debentures, registered in the name of the Trust and having an
aggregate principal amount equal to $206,200,000, and, in satisfaction of the
purchase price for such KDSM Senior Debentures, the Property Trustee, on behalf
of the Trust, shall deliver to the Depositor the sum of $206,200,000.
Section 2.06. Declaration of Trust. The exclusive purposes of
the Trust are (a) to issue and sell Trust Securities, (b) to purchase the KDSM
Senior Debentures with the proceeds from the sale of the Preferred Securities
and Common Securities, (c) if applicable, exchange the Trust Securities pursuant
to the Registration Rights Agreement and (d) to engage in those activities
necessary or incidental thereto. The Depositor hereby appoints the Trustees, as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon, and
subject to, the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. Notwithstanding any other provision of this Trust
Agreement, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities or
liabilities, of the Property Trustee or the Administrative Trustees set forth
herein. The Delaware Trustee shall be one of the Trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
Section 2.07. Authorization to Enter into Certain
Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (A) and (B), the Administrative Trustees and the Property Trustee
shall have the authority to enter into all transactions and agreements
determined by such Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to such Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall
have the power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(i) the issuance and sale of the Trust Securities;
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(ii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Expense
Agreement, the DTC Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(iii) to prepare an offering memorandum (the
"Offering Memorandum") in relation to the offering and sale of
Preferred Securities to QIBs in reliance on Rule 144A under the
Securities Act and to certain institutional Accredited Investors; and
to execute, file with the Commission and cause to become effective, at
such time as determined by the Registration Rights Agreement, a
registration statement or registration statements filed on Form 5-1,
Form 5-3 or Form 5-4, as the case may be, including any amendments
thereto in relation to the Preferred Securities;
(iv) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Registration
Rights Agreement, assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended (the
"Securities Act"), including the preparation of a registration
statement related thereto, and under state securities or blue sky laws,
and the qualification of this Trust Agreement to the extent required as
a trust indenture under the Trust Indenture Act and take all other
actions required to be taken by or on behalf of the Trust pursuant to
the Registration Rights Agreement;
(v) to execute and file any documents, or take any
acts as determined in accordance with the Registration Rights Agreement
to be necessary in order to qualify or register all or part of the
Preferred Securities in any state or foreign jurisdiction;
(vi) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor or as required under the Registration
Rights Agreement and the registration of the Preferred Securities under
the Exchange Act and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(vii) to send notices and other information regarding
the Trust Securities, the KDSM Senior Debentures, the Parent Preferred,
the Trust, KDSM, Inc. or Xxxxxxxx to the Securityholders in accordance
with this Trust Agreement;
(viii) to issue press releases announcing an
Extension Period (as defined herein);
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(ix) to appoint a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(x) to register transfers of the Trust Securities in
accordance with this Trust Agreement;
(xi) to the extent provided in this Trust Agreement,
to wind up the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(xii) to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have the power
to execute pursuant to this Trust Agreement;
(xiii) to execute and file an application (which may
be prepared by the Depositor) to the Private Offerings, Resale and
Trading through Automated Linkages ("PORTAL") Market and, at such time
as determined in accordance with the Registration Rights Agreement or
by the Depositor, of the holders of the Preferred Securities to the New
York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing or quotation of the Preferred Securities;
(xiv) to execute and deliver letters, documents, or
instruments with DTC relating to the Preferred Securities;
(xv) to execute and file with the Commission, at such
time as required in accordance with the Registration Rights Agreement
or applicable law, a registration statement on Form 8-A, including any
amendments thereto, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act;
(xvi) to execute, enter into or confirm the Purchase
Agreement, Registration Rights Agreement and other related agreements
providing for the sale of the Preferred Securities;
(xvii) the taking of all actions reasonably necessary
to enable the holders of Preferred Securities to vote on any matters
which require the consent of all or some of the Securityholders under
this Trust Agreement and taking all actions reasonably necessary to
effectuate such vote; and
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(xviii) the taking of any action incidental to the
foregoing as the Administrative Trustees and the Property Trustee may
from time to time determine is necessary, advisable or convenient to
give effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such action
on any particular Securityholder)
(B) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the establishment and maintenance of the Payment
Account;
(ii) to the extent necessary, assisting in the
registration of the Preferred Securities under the Securities Act,
including the preparation of a registration statement related thereto,
and under state securities or blue sky laws, and the qualification of
the Trust Agreement as a trust indenture under this Trust Indenture
Act;
(iii) to the extent necessary, assisting in the
preparation of an offering memorandum (the "Offering Memorandum") in
relation to the offering and sale of Preferred Securities to QIBs in
reliance on Rule 144A under the Securities Act and to certain
institutional Accredited Investors and to execute, file with the
Commission and cause to become effective, at such time as determined by
the Registration Rights Agreement, a registration statement or
registration statements filed on Form 5-1, Form 5-3 or Form 5-4, as the
case may be, including any amendments thereto in relation to the
Preferred Securities;
(iv) the receipt and safekeeping of the KDSM Senior
Debentures;
(v) executing and filing any documents prepared by
the Depositor, or take any acts as determined by the Depositor to be
necessary in order to qualify or register all or part of the Preferred
Securities in any State or foreign jurisdiction in which the Depositor
has determined to qualify or register such Preferred Securities for
sale;
(vi) the collection of interest, principal and any
other payments made in respect of the KDSM Senior Debentures in the
Payment Account;
(vii) the distribution of amounts owed to the
securityholders in respect of the Trust Securities pursuant to this
Trust Agreement;
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(viii) the sending of notices of default and other
information regarding the Trust Securities and the KDSM Senior
Debentures to the Securityholders in accordance with this Trust
Agreement;
(ix) the sending of notices of default under the
Pledge Agreement;
(x) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xi) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(xii) executing and delivering letters, documents, or
instruments with DTC relating to the Preferred Securities;
(xiii) upon the occurrence of a Change of Control,
cause the KDSM Senior Debentures held by the Trust to be redeemed in
accordance with Section 4.08 if the Trust has the right to cause such
redemption;
(xiv) the taking of any action reasonably necessary
to enable the holders of Trust Securities to vote on any matters which
require the consent of all or some of the Securityholders under the
Trust Agreement and taking all actions reasonably necessary to
effectuate such vote; and
(xv) the taking of any action incidental to the
foregoing (including sending certain information, notices and reports
to the holders of the Preferred Securities) as the Property Trustee may
from time to time determine is necessary or advisable to give effect to
the terms of this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Administrative Trustees and the Property
Trustee shall not (i) acquire any Investments (other than KDSM Senior Debentures
as provided herein) or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or otherwise
dispose of any of the Trust Property
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or interests therein, including to Securityholders, except as expressly provided
herein, (iii) take any action that would cause the Trust to be deemed an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or treated as an association taxable as a corporation for
United States federal income tax purposes, (iv) incur any Indebtedness, (v) take
or consent to any action that would result in the placement of a Lien on any of
the Trust Property or (vi) declare Distributions on the Preferred Securities
that are not properly declarable, or redeem Preferred Securities where funds are
not legally available for such redemption of such Preferred Securities.
Notwithstanding anything herein, Distributions on the Preferred Securities are
not properly declarable, and funds are not legally available for redemption of
Securities unless the Trust has cash sufficient to pay such Distributions or
make such redemption, as the case may be. The Administrative Trustees and the
Property Trustee shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects as
actions of the Trust)
(i) preparing, if necessary, an offering memorandum
(the "Offering Memorandum") in preliminary and final form prepared by
the Depositor, in relation to the offering and sale of Preferred
Securities to QIBs in reliance on Rule 144A under the Securities Act
and to certain institutional Accredited Investors and to execute and
file with the Commission, at such time as determined by the Depositor,
a registration statement or registration statements filed on Form 5-1,
Form 5-3 or Form 5-4, as the case may be, prepared by the Depositor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) executing and filing any documents prepared by
the Depositor, or take any acts as determined by the Depositor to be
necessary in order to qualify or register all or part of the Preferred
Securities in any State or foreign jurisdiction in which the Depositor
has determined to qualify or register such Preferred Securities for
sale;
(iii) executing and filing an application, prepared
by the Depositor, to the Private Offerings, Resale and Trading through
Automated Linkages ("PORTAL") Market
- 24 -
and, at such time as determined by the Depositor to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National
Market for listing or quotation of the Preferred Securities;
(iv) executing and delivering letters, documents, or
instruments with DTC relating to the Preferred Securities;
(v) executing and filing with the Commission, at such
time as determined by the Depositor, a registration statement on Form
8-A, including any amendments thereto, prepared by the Depositor
relating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act;
(vi) executing and entering into the Purchase
Agreement, Registration Rights Agreement and other related agreements
providing for the sale of the Preferred Securities; and
(vii) any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees and the Property Trustee, in their respective role set
forth in this Trust Agreement, are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or taxed as a corporation for United
States federal income tax purposes and so that the KDSM Senior Debentures will
be treated as indebtedness of the Depositor for United States federal income tax
purposes. In this connection, the Depositor and the Administrative Trustee and
the Property Trustee are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that the
Depositor or any of the Administrative Trustees and the Property Trustee
determines in its discretion to be necessary, desirable or convenient for such
purposes, as long as such action does not adversely affect the interests of the
holders of the Preferred Securities.
Section 2.08. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee for
the benefit of the Trust and the Securityholders in accordance with this Trust
Agreement.
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ARTICLE III
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the KDSM Senior Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions: Rights of Holders of Preferred
Securities.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions payable as a preference on the
Preferred Securities shall be fixed at a rate of 11 5/8% per annum (the
"Distribution Rate") of the Liquidation Value of the Preferred Securities,
subject to any increase provided for below (the "Preference Rate"). Any overdue
Distributions (including Additional Amounts Attributable to Deferral) shall
accrue additional preferred Distributions that will compound quarterly at the
Preference Rate. Distributions shall accrue from March 12, 1997, and, except in
the event that the Depositor exercises its right to extend the interest payment
period for the KDSM Senior Debentures pursuant to Section 301 of the Indenture,
shall be payable quarterly in arrears on March 15, June 15, September 15, and
December 15 of each year, commencing on June 15, 1997 to the holders of record
of Securities as of the March 1, June 1, September 1, and December 1 of each
year preceding such payment
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date. In the event that (i) Xxxxxxxx elects to defer a payment period pursuant
to its rights under the Parent Preferred and (ii) KDSM, Inc. concurrently defers
the interest payment period on the KDSM Senior Debentures (and/or elects to
defer interest payments for one quarter even if Xxxxxxxx is paying dividends on
the Parent Preferred), then preferred Distributions on the outstanding Preferred
Securities may be properly deferred for a maximum of three consecutive quarters
(an "Extension Period") but preferred Distributions would continue to accrue on
such amounts, including additional preferred Distributions on Additional Amounts
Attributable to Deferral payable on any unpaid amounts at a rate per annum of 11
5/8%, compounded quarterly. The Trust may exercise such deferral options only by
issuing a press release at least ten Business Days prior to the record date for
any Distribution which is being deferred. The Trust shall make partial
Distributions to the extent KDSM, Inc. makes partial interest payments of the
KDSM Senior Debentures. The failure of the Trust to pay in full all
Distributions in arrears (i) for any period for which Distributions were not
properly deferred or at least once every four quarters, or (ii) on March 15,
2009, shall be deemed an Event of Default hereunder. If any date on which
Distributions are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay) (each date on which Distributions are payable in
accordance with this Section 4.01(a) a "Distribution Payment Date").
Notwithstanding the foregoing, in the event of a Registration Default which
shall be promptly notified to the Trustees by the Depositor in an Officers'
Certificate, Registration Default Distributions shall be payable as a preference
on the Preferred Securities in the amount and on the terms provided in the
Registration Rights Agreement and any unpaid Registration Default Distributions
shall accrue additional preferred Distributions at 11 5/8% per annum compounded
quarterly. All references hereinto accrued or accumulated and unpaid
Distributions shall be deemed to include a reference to (a) any accumulated or
additional Distributions on any such accrued and unpaid dividends, (b)
Registration Default Distributions and any additional Distributions thereon and
(c) Additional Amounts and any additional preferred Distributions thereon, if
applicable. The Preferred Securities and Common Securities are solely payable by
the Trust from the Trust Property.
(b) The Trust Securities represent undivided beneficial
interests in the assets of the Trust, subject to Section 4.03 hereof, and all
Distributions will be made by the Trust first to the Holders of the Preferred
Securities and then, second, to the extent the Trust has funds available
pursuant to Section 4.01(c) to Holders of Common Securities subject to
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Section 4.03 hereof. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly period, shall be computed on the
basis of the actual number of days elapsed in such period. The amount of
Distributions payable for any period shall include Additional Amounts and
Registration Default Distributions, if any.
(c) For all purposes hereunder, including with respect to
Liquidation Distributions, the holders of the Preferred Securities shall not be
deemed to be creditors of the Trust.
Section 4.02. Redemption.
(a) On each Debenture Redemption Date with respect to a cash
redemption, the Trust is required to redeem a Like Amount of Trust Securities in
cash at the Redemption Price and the Trustees shall take all actions reasonably
necessary to accomplish such redemption.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall identify the Trust Securities to be redeemed
(including CUSIP number) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place of payment where such Trust Securities are to
be surrendered for payment of the Redemption Price; and
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that interest thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of the KDSM Senior Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be deemed payable
on each Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of
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redemption in respect of any Preferred Securities (which notice will be
irrevocable), then, by 12:00 noon, New York time, on the Redemption Date,
subject to Section 4.02(c), the Property Trustee shall, so long as the Preferred
Securities are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Preferred Securities funds sufficient to pay the applicable
Redemption Price and, at the direction of the Depositor, shall give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof. If the Preferred Securities are no longer in
book-entry-only-form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and shall give the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates for
the related Distribution Payment Dates. If notice of redemption shall have been
given and funds or securities, as the case may be, deposited as required, then
upon the redemption date, all rights of Securityholders holding Trust Securities
so called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price, but without the right to additional preferred
Distributions or other payments (including Additional Amounts) on such
Redemption Price, and such Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by Xxxxxxxx
pursuant to the Guarantee Agreement, Distributions on such Trust Securities will
continue to accrue at the Distribution Rate from the Redemption Date originally
established by the Trust for such Trust Securities to the date such Redemption
Price is actually paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption Price.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Redemption Price to be paid
shall be allocated to the Holders of
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Outstanding Preferred Securities in priority over the Holders of Outstanding
Common Securities, and, after all Preferred Securities have been redeemed in
accordance with this Trust Agreement to the extent sufficient cash or other
assets are available, to the Holder of Common Securities. If less than all of
the Preferred Securities are to be redeemed on a Redemption Date, then the
particular Preferred Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $100 or any
integral multiple thereof) of the aggregate Liquidation Value of Preferred
Securities of a denomination larger than $100. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Value thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Value of Preferred Securities which has
been or is to be redeemed.
Section 4.03. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts and
Registration Default Distributions, if applicable) on, and the Redemption Price
of, the Trust Securities, as applicable, shall be made pro rata based on the
aggregate Liquidation Value of the Trust Securities; provided, however, that no
payment of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts and Registration Default Distributions, if
applicable) payable as a preference on all Outstanding Preferred Securities for
all distribution periods terminating on or prior thereto (whether or not such
Distributions have been properly deferred), or in the case of payment of the
Redemption Price, the full amount of such Redemption Price on all Outstanding
Preferred Securities called for redemption in accordance with 4.02(e), shall
have been made or provided for, and all funds legally available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts and Registration Default
Distributions, if applicable) on, or Redemption Price of, Preferred Securities
then due and payable.
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(b) In the case of the occurrence of any Event of Default, the
Holders of Common Securities will be deemed to have waived any right to act with
respect to any such Event of Default until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee and the Administrative Trustees under
the Trust Agreement shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder or Holders of the Common Securities, and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee and the Administrative Trustees to act on their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
Preferred Securities shall be payable to the Holders as they appear on the
Securities Register for the Trust Securities on the relevant record date at the
office or agency of the Paying Agent in maintained for such purpose and at any
other office or agency maintained by the Paying Agent for such purpose;
provided, however, that at the option of the Property Trustee, Distributions may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register; provided further, if the
Preferred Securities are held by DTC, payments shall be made to DTC, which shall
credit the relevant accounts at DTC on the applicable Distribution Payment
Dates. Payments in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the holders of the
Common Securities.
Section 4.05. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States federal, state and local tax and information returns
and reports required to be filed by or in respect of the Trust. In this regard,
the Administrative Trustees shall (a) prepare and file (or cause to be prepared
or filed) the Internal Revenue Service Form 1041 (or any successor form) or any
other tax forms required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder all Internal Revenue Service forms required to
be provided by the Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns, reports and
schedules promptly after such filing or furnishing. The Administrative Trustees
and the Property Trustee, in their respective capacities, shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
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Section 4.06. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the KDSM Senior Debentures of Additional Interest
Attributable to Taxes (as defined in the Indenture), the Property Trustee, at
the direction of the Administrative Trustee if so directed, shall promptly pay
any taxes, duties, assessments or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
Section 4.07. Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities (and any Owner with respect
thereto) shall be reduced by the amount of any corresponding payment such Holder
(and Owner) has directly received pursuant to Section 508 of the Indenture.
Notwithstanding the provisions hereunder to the contrary, Securityholders and
Owners acknowledge that any Holder of Preferred Securities (and Owner with
respect thereto) that receives payment under Section 508 of the Indenture may
receive amounts greater than the amount such Holder or Owner may be entitled to
receive pursuant to the other provisions of this Trust Agreement.
Section 4.08. Change of Control. (a) Subject to the next
sentence, if a Change of Control shall occur at any time, then each Holder of
Preferred Securities shall have the right to require that the Trust purchase
such Holder's Preferred Securities in whole or in part, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101% of the
Liquidation Value of such Preferred Securities, plus accrued and unpaid
Distributions, if any, to the date of purchase (the "Change of Control Purchase
Date"), pursuant to the offer described in subsection (c) of this Section (the
"Change of Control Offer") and in accordance with the procedures set forth in
Subsections (b), (c), (d) and (e) of this Section. Notwithstanding the
foregoing, the holders of the Preferred Securities will not have the right to
require the Trust to redeem or repurchase, as the case may be, such securities
upon a Change of Control under any circumstances unless all of the Existing
Notes and all indebtedness under the Bank Credit Agreement are repaid, redeemed
or repurchased, all of the commitments and letters of credit issued under the
Bank Credit Agreement are terminated, and all Interest Rate Agreements entered
into between Xxxxxxxx and any lenders under the Bank Credit Agreement are
terminated as a result of such Change of Control or the holders of such
instruments have consented to a Change of Control Offer, in which case the date
on which all Existing Notes and all indebtedness under the Bank Credit Agreement
are so repaid, redeemed or repurchased and such commitments, letters of credit
and Interest Rate Agreements are terminated or the holders of such instruments
have consented to a Change of Control Offer shall be deemed to be the date on
which such Change of Control
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shall have occurred.
(b) Within 5 days following any Change of Control, the
Depositor shall notify the Property Trustee thereof and, if the holders of the
Preferred Securities shall have the right to cause the Trust to redeem or
repurchase the Preferred Securities upon a Change of Control, the Administrative
Trustees and the Property Trustee shall, within 30 days following a Change of
Control, cause written notice (a "Change of Control Purchase Notice") of such
Change of Control to be provided to each Holder of Outstanding Preferred
Securities by first-class mail, postage prepaid, at his address appearing in the
Security Register stating or including:
(1) that a Change of Control has occurred, the date
of such event, and that such Holder has the right to require
the Trust to repurchase such Holder's Preferred Securities at
the Change of Control Purchase
Price;
(2) the circumstances and relevant facts regarding
such Change of Control (including but not limited to
information with respect to pro forma historical income, cash
flow and capitalization after giving effect to such Change of
Control);
(3) that the Change of Control Offer is being made
pursuant to this Section 4.08 of the Trust Agreement and that
all Preferred Securities properly tendered pursuant to the
Change of Control Offer will be accepted for payment at the
Change of Control Purchase Price;
(4) the Change of Control Purchase Date which shall
be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed, or such later date
as is necessary to comply with requirements under the Exchange
Act;
(5) the Change of Control Purchase Price;
(6) the name and address of the Paying Agent;
(7) that Preferred Securities must be surrendered on
or prior to the Change of Control Purchase Date to the Paying
Agent at the office of the Paying Agent to collect payment;
(8) that the Change of Control Purchase Price for any
Preferred Security which has been properly tendered and not
withdrawn will be paid promptly following the
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Change of Control Offer Purchase Date;
(9) the procedures for withdrawing a tender of
Preferred Securities and Change of Control Purchase Notice;
(10) that any Preferred Security not tendered will
continue to accrue preferred Distributions; and
(11) that, unless the Trust defaults in the payment
of the Change of Control Purchase Price, any Preferred
Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue preferred Distributions
after the Change of Control Purchase Date.
(c) If the holders of the Preferred Securities shall have the
right to cause the Trust to redeem or repurchase the Preferred Securities upon a
Change of Control, immediately upon receipt by the Trust of the final
information regarding participation in the Change of Control Offer of Preferred
Securities, the Property Trustee, on behalf of the Trust, shall cause KDSM, Inc.
to redeem such portion of the KDSM Senior Debentures held by the Trust in an
amount sufficient to pay each Holder of Preferred Securities, in respect of
which such proper tender was made (unless the tender of such Preferred Security
is properly withdrawn), the Change of Control Purchase Price with respect to
such Preferred Security. Upon surrender of any such Preferred Security for
purchase in accordance with the foregoing provisions, such Preferred Security
shall be paid by the Trust at the Change of Control Purchase Price.
(d) If the holders of the Preferred Securities shall have the
right to cause the Trust to redeem or repurchase the Preferred Securities upon a
change of Control, the Trust shall (i) not later than the Change of Control
Purchase Date, accept for redemption Preferred Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) not later than 11:00 a.m.
(New York City time) on the Change of Control Purchase Date, deposit with the
Paying Agent an amount of cash sufficient to pay the aggregate Change of Control
Purchase Price of all the Preferred Securities or portions thereof which are to
be purchased as of the Change of Control Purchase Date and (iii) not later than
the Change of Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Preferred Securities or portions thereof accepted for
payment by the Trust. The Paying Agent shall promptly mail or deliver to Holders
of Securities so accepted payment in an amount equal to the Change of Control
Purchase Price of the Preferred Securities purchased from each such Holder, and
the Trust shall execute and the Property Trustee shall promptly authenticate and
mail or deliver
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to such Holders a new Preferred Security equal in principal amount to any
unpurchased portion of the Preferred Security surrendered. Any Preferred
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof.
(e) If the holders of the Preferred Securities shall have the
right to cause the Trust to redeem or repurchase the Preferred Securities upon a
Change of Control, a Change of Control Purchase Notice may be withdrawn before
or after delivery by the Holder to the Paying Agent at the office of the Paying
Agent of the Preferred Security to which such Change of Control Purchase Notice
relates, by means of a written notice of withdrawal delivered by the Holder of
the Preferred Security to the Paying Agent at the office of the Paying Agent to
which the related Change of Control Purchase Notice was delivered not later than
one Business Day prior to the Change of Control Purchase Date specifying, as
applicable:
(1) the name of the Holder;
(2) the certificate number of the Preferred Security
in respect of which such notice of withdrawal is being
submitted;
(3) the Liquidation Value of the Preferred Security
(which shall be $100 or an integral multiple thereof)
delivered for purchase by the Holder as to which such notice
of withdrawal is being submitted; and
(4) the Liquidation Value, if any, of such Preferred
Security (which shall be $100 or an integral multiple thereof)
that remains subject to the original Change of Control
Purchase Notice and that has been or will be delivered for
purchase by the Trust.
(f) If the holders of the Preferred Securities shall have the
right to cause the Trust to redeem or repurchase the Preferred Securities upon a
Change of Control, subject to applicable escheat laws, as provided in the
Preferred Securities, the Property Trustee and the Paying Agent shall return to
the Trust any cash that remains unclaimed, together with interest or dividends,
if any, thereon, held by them for the payment of the Change of Control Purchase
Price; provided, however, that (x) to the extent that the aggregate amount of
cash deposited by the Trust pursuant to clause (ii) of paragraph (d) above
exceeds the aggregate Change of Control Purchase Price of the Preferred
Securities or portions thereof to be purchased, then the Property Trustee shall
hold such excess for the Trust and (y) unless otherwise directed by the Trust in
writing, promptly after the Business Day following the Change of Control
Purchase Date the
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Property Trustee shall return any such excess to the Trust together with
interest, if any, thereon.
(g) If the holders of the Preferred Securities shall have the
right to cause the Trust to redeem or repurchase the Preferred Securities upon a
Change of Control, the Trust shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer.
No failure of the Property Trustee to give the Change of
Control Notice shall limit any Holder's right to exercise its rights.
Exercise of the Change of Control rights by a Holder of
Preferred Securities will be irrevocable. In the event that the Trust does not
have sufficient funds to redeem all outstanding Preferred Securities, the
provisions of Section 4.02(e) shall apply to this Section 4.08.
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership. Until the issuance of the
Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates. (a) Initial
Holders shall purchase Preferred Securities in minimum denominations of $100
(based on Liquidation Value) and integral multiples of $100 in excess thereof,
and the Common Securities Certificates shall be issued in denominations of $100
Liquidation Value and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.05.
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(b) Except as described in clause (c) below, upon their
original issuance, Preferred Securities Certificates shall be issued in
book-entry form of one or more book-entry certificates registered in the name of
DTC, as Clearing Agency, or its nominee and deposited with DTC for credit by DTC
to the respective accounts of the Owners thereof (or such other accounts as they
may direct).
(c) Upon the original issuance of Preferred Securities to
institutional Accredited Investors the Preferred Securities Certificates shall
not be issued in the form of a book-entry Preferred Securities Certificate or in
any other form intended to facilitate book-entry trading in beneficial interests
of such Preferred Securities.
(d) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.03. Delivery of Trust Securities Certificates. On
the Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Value as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust and delivered to or upon the written
order of the Depositor signed by its Chairman, its Vice Chairman, its Chief
Executive Officer, its President or any Vice President, without further
corporate action by the Depositor, in authorized denominations.
Section 5.04. Global Securities. (a) Except as described in
the next paragraph, upon their original issuance, the Preferred Securities shall
be issued as a book-entry global security ("Global Security"), which Global
Security initially shall (i) be registered in the name of the DTC for such
Global Security or the nominee of such DTC, (ii) be deposited with, or on behalf
of, DTC and (iii) bear the applicable legends set forth in Exhibit E.
The Preferred Securities purchased by Accredited Investors
will be issued in registered certificated form ("Certificate of Security") and
will bear the applicable restrictive legends set forth in Exhibit E.
Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Trust Agreement with respect to any Global Security
held on their behalf by DTC, or the Property Trustee as its custodian, or under
the Global Security, and DTC may be treated by the Security Registrar, the
Administrative Trustees and the Property Trustee and any agent of the Security
Registrar or such Administrative Trustees and the Property
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Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Security Registrar, the Administrative Trustees and the Property Trustee or any
agent of the Security Registrar from giving effect to any written certification,
proxy or other authorization furnished by DTC or shall impair, as between DTC
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Preferred Security.
(b) Transfers of the Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to DTC, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of DTC and the provisions of Section 5.05. Except as provided for below,
beneficial owners may not obtain physical Preferred Securities Certificates.
Physical Preferred Securities Certificates ("Physical Securities") in the form
set forth in Exhibit E and bearing the applicable legend as set forth therein,
shall be issued to all beneficial owners in exchange for their beneficial
interests in a Global Security only if (i) DTC notifies the Property Trustee
that it is unwilling or unable to continue as depositary for a Global Security
and a successor depositary is not appointed by the Property Trustee within 90
days of such notice, (ii) an Event of Default has occurred and is continuing and
the Security Registrar has received a request from DTC and (iii) the
Administrative Trustees decide to discontinue use of the system of book-entry
transfers through DTC. Institutional Accredited Investors can only transfer
Physical Securities as set forth in Section 5.05.
(c) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (b) of this
Section to beneficial owners who are required to hold Physical Securities, the
Security Registrar shall reflect on its books and records the date and a
decrease in the Liquidation Value of the Global Security in an amount equal to
the Liquidation Value of the beneficial interest in the Global Security to be
transferred, and the Administrative Trustees shall execute, and the Property
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(d) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to subsection (b) of this Section, a
Global Security shall be deemed to be surrendered to the Property Trustee for
cancellation, and the Administrative Trustees shall execute, and the Property
Trustee shall authenticate and deliver, to each beneficial owner identified by
the Depositary in exchange for its beneficial interest in a Global Security, an
equal aggregate Liquidation
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Value of the Physical Securities of authorized denominations.
(e) Any Physical Security delivered in exchange for an
interest in Global Securities pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided by paragraph (a) (i) (x) and
paragraph (c) of Section S..Os, bear the Restricted Preferred Securities Legend.
(f) The registered holder of a Global Security shall 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 Trust Agreement or the Preferred Securities.
Section 5.05. Registration. Registration of Transfer and
Exchange. The Property Trustee shall keep or cause to be kept, at the Corporate
Trust Office of the Property Trustee, or such other office as the Property
Trustee may designate, a register (the register maintained in such office or in
any other office or agency designated pursuant to Section 5.09 being herein
sometimes referred to as the "Security Registrar") in which, the registrar
designated by the Property Trustee (the "Securities Registrar") with the
reasonable consent of the Administrative Trustees, subject to such reasonable
regulations as the Security Registrar may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates and of transfers of Preferred Securities Certificates and Common
Securities Certificates. The Property Trustee shall initially be the "Security
Registrar" for the purpose of registering Preferred Securities Certificates and
Common Securities Certificates and transfers of the Preferred Securities
Certificates and Common Securities Certificates as herein provided.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.09, the Administrative Trustees shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates of the same
series of any authorized denomination or denominations, of a like aggregate
Liquidation Value.
Furthermore, any Holder of a Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interest
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Preferred Securities Certificate shall
be required to be reflected in a book entry.
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At the option of the Holder, Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates of any authorized
denomination or denominations, of a like aggregate Liquidation Value, upon
surrender of the Preferred Securities Certificates to be exchanged at such
office or agency. Whenever any Preferred Securities Certificates are so
surrendered for exchange, the Administrative Trustees shall execute, and the
Property Trustee shall authenticate and deliver, the Preferred Securities
Certificate of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Preferred Securities pursuant to the
Exchange Offer shall occur until an Exchange Offer Registration Statement (as
both terms are defined in the Registration Rights Agreement) shall have been
declared effective by the Commission and that the tendered Preferred Securities
shall be canceled.
Every Preferred Security Certificate presented or surrendered
for registration of transfer, or for exchange or redemption shall (if so
required by the Property Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Security Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder of Preferred
Securities for any registration of transfer or exchange or redemption of
Preferred Securities Certificates, but the Securities Registrar may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed in connection
with any registration of transfer or exchange of the Preferred Securities
Certificates.
The Securities Registrar may but shall not be required (a) to
issue, register the transfer of or exchange any Preferred Securities
Certificates during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of the Preferred Securities selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange any Preferred Securities so selected
for redemption in whole or in part, except the unredeemed portion of Preferred
Securities being redeemed in part.
Every Restricted Preferred Security shall be subject to the
restrictions on transfer provided in the legend required to be set forth on the
face of such Preferred Securities as set forth in Exhibit E and the restrictions
set forth in this Section 5.05, and the Holder of each Restricted Preferred
Security, by such Holder's acceptance thereof (or interest therein), agrees to
be bound by such restrictions on transfer.
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The restrictions imposed by this Section 5.05 upon the
transferability of any particular Restricted Preferred Security shall cease and
terminate on (a) the later of two years from their date of issuance or two years
after the last date on which the Trust or any Affiliate of the Trust was the
owner of such Restricted Preferred Security (or any predecessor of such
Restricted Preferred Security) or (b) (if earlier) if and when such Restricted
Preferred Security has been sold or transferred or exchanged pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 under the Securities Act (or any successor provision),
unless the Holder thereof is an affiliate of the Trust within the meaning of
Rule 144 (or such successor provisions) . Any Restricted Preferred Security as
to which such restrictions on transfer shall have expired in accordance with
their terms or shall have terminated may, upon surrender of such Restricted
Preferred Security for exchange to the Security Registrar in accordance with the
provision of this Section 5.05 (accompanied, in the event that such restrictions
on transfer have terminated pursuant to Rule 144 (or any successor provision),
by an Opinion of Counsel satisfactory to the Property Trustee, to the effect
that the transfer of such Restricted Preferred Security has been made in
compliance with Rule 144 (or any such successor provision), be exchanged for a
new Preferred Security, of like tenor and aggregate Liquidation Value, which
shall not bear the Restricted Preferred Securities Legend. The Depositor shall
inform the Property Trustee of the effective date of any registration statement
registering the Preferred Securities under the Securities Act no later than two
business Days after such effective date.
Unless and until (i) a Preferred Security is sold under an
effective Shelf Registration Statement, or (ii) a Preferred Security is
exchanged in connection with the Exchange Offer under an Exchange Offer
Registration Statement, in each case pursuant to, and as such terms are defined
in, the Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration of any
proposed transfer of a Preferred Security to an Accredited Investor which is not
a QIB:
(i) The Security Registrar shall register the transfer of any
Preferred Security whether or not such Preferred Security bears the
Restricted Preferred Securities Legend, if (x) the requested transfer
is at least two years after the original issue date of the Preferred
Securities or (y) the proposed transferee has delivered to the Security
Registrar a certificate substantially in the form set forth in Exhibit
F.
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(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the
Security Registrar of (x) the documents, if any, required by paragraph
(i) and (y) instructions given in accordance with DTC's and the
Security Registrar's procedures therefor, the Security Registrar shall
reflect on its books and records the date and a decrease in the
Liquidation Value of the Global Security in an amount equal to the
Liquidation Value of the beneficial interest in the Global Security
transferred, and Administrative Trustees shall execute, and the
Property Trustee shall authenticate and deliver, one or more Physical
Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Preferred
Security to a QIB:
(i) If the Preferred Security to be transferred consists of
Physical Securities, the Security Registrar shall register the transfer
if such transfer is being made by a proposed transferor who has advised
the Property Trustee and the Security Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to
the transferee who has signed the certification provided for on the
form of Preferred Security stating, or has otherwise advised the
Property Trustee and the Security Registrar in writing, that it is
purchasing the Preferred Security for its own account or an account
with respect to which it exercises sole investment discretion and that
it, or the person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Trust as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Preferred Security to be transferred consists of Physical Securities,
upon receipt by the Security Registrar of instructions given in
accordance with DTC's and the Security Registrar's procedures therefor,
the Security Registrar shall reflect on its books and records the date
and an increase in the Liquidation Value of the Global Security in an
amount equal to the Liquidation Value of the Physical Securities, to be
transferred, and the Property Trustee shall cancel the Physical
Security so transferred.
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(c) Restricted Preferred Securities Legend. Upon the
registration of transfer, exchange or replacement of Preferred Securities not
bearing the Restricted Preferred Securities Legend, the Security Registrar shall
deliver Preferred Securities that do not bear the Restricted Preferred
Securities Legend. Upon the registration of transfer, exchange or replacement of
Preferred Securities bearing the Restricted Preferred Securities Legend (a
"Restricted Preferred Security"), the Security Registrar shall deliver only
Preferred Securities that bear the Restricted Preferred Securities Legend unless
either (i) the circumstances contemplated by paragraph (a) (i) (x) of this
Section 5.05 exist or (ii) there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Property Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Preferred Security
bearing the Restricted Preferred Securities Legend, each Holder of such a
Preferred Security acknowledges the restrictions on transfer of such Preferred
Security set forth in this Trust Agreement and in the Restricted Preferred
Securities Legend and agrees that it will transfer such Preferred Security only
as provided in this Trust Agreement.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 5.04 or
this Section 5.05. The Depositor shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Security Registrar.
Section 5.06. Mutilated. Destroyed. Lost or Stolen Trust
Securities Certificates. If (a) any mutilated, destroyed, lost or stolen Trust
Securities Certificate shall be surrendered to the Securities Registrar, or if
the Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and (b) there
shall be delivered to the Securities Registrar and the Administrative Trustees
such security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the Administrative Trustees
or any one of them on behalf of the Trust shall execute and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees or the
Securities Registrar may require the payment of a
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sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section 5.06 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the mutilated, lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
The provisions of this Section 5.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Trust
Securities.
Section 5.07. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Administrative Trustees and Property Trustee or the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither such Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.08. Access to List of Securityholders' Names and
Addresses. The Securities Registrar shall furnish or cause to be furnished (x)
to the Depositor, within 15 days after receipt by the Securities Registrar of a
request there for from the Depositor in writing and (y) to the Property Trustee,
quarterly, and at such other times as the Property Trustee may request in
writing promptly after receipt by the Securities Registrar of any such request,
a list, in such form as the Depositor or the Property Trustee (as applicable)
may reasonably require, of the names and addresses of the Securityholders as of
the most recent record date. If three or more Holders of Trust Securities
Certificates apply in writing to the Securities Registrar, and such application
states that the applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Securities Registrar shall,
within five Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
the Securities Registrar accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.09. Maintenance of Office or Agency. The
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Administrative Trustees shall maintain an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate the Bank, First Union National Bank
of Maryland, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxx
Xxxxxxx, for such purposes. The Administrative Trustees shall give prompt
written notice to the Depositor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agent. A paying agent (the
"Paying Agent") appointed hereby shall make Distributions to Securityholders
from the Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be the Property Trustee, and the Paying Agent may choose
any co-paying agent that is acceptable to the Administrative Trustees, the
Property Trustee and the Depositor. Any Person acting as a Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor.' In the event
that the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor that is acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank or trust
company) . The Administrative Trustees shall cause such successor Paying Agent
or any co-paying agent appointed by the Paying Agent to execute and deliver to
the Administrative Trustees and the Property Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the
Administrative Trustees and the Property Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it' for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any
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other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.11. Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities shall
be void; provided, however, that any permitted successor of the Depositor
pursuant to Article Six of the Indenture may succeed to the Depositor's
ownership of the Common Securities. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE."
Section 5.12. Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under this Trust
Agreement, unless and until definitive Preferred Securities Certificates shall
have been issued to Owners, pursuant to Section 5.13, the Administrative Trustee
and the Property Trustee shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Rights of Securityholders. The legal title to
the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property, profits or
rights of the Trust. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement, but are
not interests in specific trust property. The Trust Securities shall have no
preemptive rights and when issued and delivered to Securityholders against
payment of the purchase price there for will be fully paid and nonassessable
undivided beneficial interests in the assets of the Trust. The Holders of the
Preferred Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
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(a) Except as provided in this Section, in Sections 8.10, 9.02
and 10.02 hereof and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote whatsoever or in any manner otherwise
control to any extent tb administration, operation and management of the Trust
or the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Trust Securities Certificates, be construed so
as to constitute the Securityholders from time to time as partners or members of
an association.
(b) So long as any KDSM Senior Debentures are held by the
Property Trustee on behalf of the Trust, the Property Trustee or any other
Trustee shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such KDSM
Senior Debentures or the Indenture, (ii) waive any past default under the
Indenture, (iii) exercise any right to, or rescind or annul a declaration that,
the principal of all KDSM Senior Debentures shall be due and payable, (iv)
consent to any amendment, modification or termination of the Indenture, the KDSM
Senior Debentures or the Pledge and Security Agreement where such consent shall
be required, (v) liquidate the Trust pursuant to Section 9.02(i) or (vi)
exercise any right with respect to the Parent Preferred pursuant to the Pledge
and Security Agreement, or otherwise, without, in each case, obtaining the prior
approval of the Holders of at least a majority in aggregate Liquidation Value of
the Outstanding Preferred Securities and the Property Trustee shall take such
action on behalf of the Trust upon such approval; provided, however, that where
a consent, waiver or exercise of rights under the Indenture would require the
consent of each holder of the KDSM Senior Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Outstanding Preferred Securities. The Property Trustee shall
not revoke any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the Holders of the
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the KDSM Senior Debentures or as to receipt of any
notice related to the Parent Preferred or as to which a vote of the Preferred
Securities may be required. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the Trust will
not be classified as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
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(c) So long as the Pledge Agreement is in full force and
effect, the Property Trustee or any other Trustee shall not exercise any of the
approval, consent, waiver or any other of the rights of the Trust provided to
the Trust pursuant to the Pledge Agreement, without, in each case, obtaining the
prior approval of the Holders of at least a majority in aggregate Liquidation
Value of the Outstanding Preferred Securities and the Property Trustee shall
take such action on behalf of the Trust upon such approval; provided, however,
that where a consent, waiver or exercise of rights provided through the Pledge
and Security Agreement would require the consent of each Holder of the Preferred
Securities affected thereby since it relates to a right which requires the
consent of each holder of the KDSM Senior Debentures, no such consent shall be
given by the Property Trustee without the prior written consent of each Holder
of Outstanding Preferred Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Preferred Securities,
except pursuant to a subsequent vote of the Holders of the same required
percentage of Preferred Securities. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that the
Trust will not be classified as an association taxable as a corporation for
United States federal income tax purposes on account of such action.
(d) Subject to Section 10.02(c) hereof, if any proposed
amendment to this Trust Agreement provides for, or the Administrative Trustee
and the Property Trustee otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to this Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a majority in aggregate Liquidation Value of
the Outstanding Preferred Securities. No amendment to this Trust Agreement may
be made if, as a result of such amendment, the Trust would be classified as an
association taxable as a corporation for United States federal income tax
purposes.
(e) Upon an Event of Default, the Holders of a majority of the
aggregate Liquidation Value of the Outstanding Preferred Securities shall have
the right to replace any or all of the Trustees of the Trust. So long as such
Event of Default shall be continuing, any Trustee selected by the holders of
Preferred Securities may only be removed or replaced by the Holders of
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Preferred Securities and the Holders of the Common Securities shall have no
right to select any Trustees. Upon the termination of waiver of such an Event of
Default, the holders of Common Securities shall have the right to replace any or
all of the Trustees selected by the holders of Preferred Securities.
Section 6.02. Notice of Meetings. Notice of all meetings of
the Holders of the Preferred Securities, stating the time, place and purpose of
the meeting, shall be given by the Administrative Trustees in the manner
provided by Section 10.08 to each Holder of Preferred Securities of record, at
his registered address, at least 30 days and not more than 90 days before the
meeting or as otherwise set forth herein. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Any and all notices to which any Holders of Preferred
Securities hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed to any Holder
of Preferred Securities of record at his last known address as recorded on the
Securities Register.
Section 6.03. Meetings of Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Holders of Preferred Securities of record of 25% of the
Outstanding Preferred Securities (based upon their aggregate Liquidation Value)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Holders of Preferred Securities to vote on
any matters as to the which Holders of Preferred Securities are entitled to
vote.
Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Value), present in person or
by proxy, shall constitute a quorum at any meeting of Holders of Preferred
Securities.
If a quorum is present at a meeting, an affirmative vote by
the Securityholders of record present, in person or by proxy, holding more than
a majority of the Preferred Securities (based upon their Liquidation Value) held
by the Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of Preferred Securities,
unless this Trust Agreement requires a greater number of affirmative votes.
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Section 6.04. Voting Rights. Securityholders shall be entitled
to one vote for each $100 of Liquidation Value represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies. Etc. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, that no proxy
shall be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in Person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in Person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
Section 6.06. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding Trust
Securities (based upon their Liquidation Value) entitled to vote in respect of
such act ion (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing.
Section 6.07. Record Date for Voting and Other Purposes. The
Administrative Trustees may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Administrative
Trustees prior to the first solicitation of a Holder made by any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 5.08 hereof) prior to such first solicitation or
vote, as the case may be; provided, however, that in no event shall any such
record date be prior to the date on which the notice of such vote or other
action is given. With regard to any record date, only the
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Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section 6.08.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
In determining whether the Holders of the requisite
Liquidation Value of outstanding Trust Securities have acted in connection with
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement, then for purposes of such
determination, if the Trust Securities are registered in the form of one or more
global certificates, the Holders entitled to act thereon shall mean the Owners
of such Trust Securities.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange there for or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance
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thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Value of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Value.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, notice, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
This Section 6.08 shall not be deemed to supersede, or to
impose obligations in addition to, Section 6.05.
Section 6.09. Inspection of Records. Subject to Section 5.08
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspect ion by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties of the Property Trustee,
the Administrative Trustees and the Delaware Trustee
The Property Trustee, the Administrative Trustees and the
Delaware Trustee, each severally on behalf of and as to only itself or himself,
as the case may be, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association
duly organized and validly existing and is in good standing under the
laws of the United States;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this Trust Agreement;
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(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee, enforceable against
the Property Trustee in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) this Trust Agreement has been duly executed and delivered
by each of the Delaware Trustee and the Administrative Trustees and
constitutes the valid and legally binding agreement of the Delaware
Trustee and the Administrative Trustees, enforceable against the
Delaware Trustee and the Administrative Trustees in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(e) the execution, delivery and performance by the Property
Trustee of this Trust Agreement have been duly authorized by all
necessary corporate action on the part of the Property Trustee and do
not require any approval of stockholders of the Property Trustee and
such execution, delivery and performance will not (i) violate the
Property Trustee's charter or by-laws, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions
of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee is a party or by
which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States, governing the banking or trust powers
of the Property Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee;
(f) the execution, delivery and performance by the Delaware
Trustee and the Administrative Trustees of this Trust Agreement will
not (i) violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust
Property pursuant to the provisions of any indenture, mortgage or
credit agreement, license or other agreement or instrument to which the
Delaware Trustee or any of the Administrative Trustees is a party or by
which the Delaware Trustee or any of the Administrative Trustees is
bound or (ii) violate any
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law, governmental rule or regulation of the State of Delaware governing
the banking or trust powers of the Delaware Trustee or violate any law,
governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing any of the Administrative
Trustees, or any order, judgment or decree applicable to the Delaware
Trustee or the Administrative Trustees;
(g) neither the authorization, execution or delivery by the
Property Trustee, the Delaware Trustee or the Administrative Trustees
of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee, the Delaware Trustee or the Administrative
Trustees (as appropriate in each context) contemplated herein or
therein pursuant to this Trust Agreement require the consent or
approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority
or agency under any existing federal law governing the banking or trust
powers of the Property Trustee, Delaware Trustee or any of the
Administrative Trustees or under the laws of the State of Delaware
(excluding securities laws); and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's, the Administrative Trustees' and the
Delaware Trustee's knowledge, threatened against or affecting the
Property Trustee, the Administrative Trustees or the Delaware Trustee
in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee, any of the
Administrative Trustees or the Delaware Trustee to enter into or
perform its obligations as one of the Trustees under this Trust
Agreement.
The Administrative Trustees each severally hereby represents
and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been, duly authorized, and will have
been, as of each such date, duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of
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the Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by the Property Trustee, the Delaware Trustee or the
Administrative Trustees, as the case may be, of this Trust Agreement.
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, to
the extent applicable by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require the Trustees to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of their
rights or powers, if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to them. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent legally available for distribution to it as
herein provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust Agreement,
including without limitation as set forth under Article VII, or, in the case of
the Property Trustee, to the extent applicable in the Trust Indenture Act, or
limit the rights of Owners pursuant to Section 508 of the Indenture.
Section 8.02. Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default actually known to the Property
Trustee, the Property Trustee shall transmit, in the manner provided in Section
10.08, notice of such default to the Securityholders, the Administrative
Trustees and the Depositor, unless such default shall have been cured or waived.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of
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time or both would become, an Event of Default.
Section 8.03. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may conclusively rely upon and shall
be protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of
a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (B) in construing any of the
provisions in this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein or
(C) the Property Trustee is unsure of the application of any provision
of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote to any extent under the
terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor and shall have no liability whatsoever
for such action or inaction; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
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(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document; and
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it
hereunder.
Section 8.04. Not Responsible for Recitals or Issuance of
Securities. Except as provided in Article VII, the recitals contained herein and
in the Trust Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for their correctness.
Section 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06. Compensation; Fees: Indemnity. The Depositor
agrees:
(1) to pay to the Trustees from time to time such compensation
as the Depositor and the Trustees shall from time to time agree in
writing for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law with regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the
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expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its bad
faith, negligence in the case of the Property Trustee, gross negligence
in the case of the Administrative Trustees and the Delaware Trustee or
willful misconduct; and
(3) (a) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, its Affiliates, officers,
directors, shareholders, employees, representatives and agents and (ii)
any employee or agent of the Trust or its Affiliates (referred to
herein as an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of
negligence in the case of the Property Trustee, gross negligence in the
case of the Administrative Trustees and the Delaware Trustee or willful
misconduct with respect to such acts or omissions.
(b) to the fullest extent permitted by applicable law, to
advance, from time to time, prior to the final disposition of any
claim, demand, action, suit or proceeding for which indemnification is
authorized pursuant to subsection (a) above, any expenses (including
reasonable legal fees) incurred by an Indemnified Person in defending
such claim, demand, action, suit or proceeding upon receipt by the
Depositor of an undertaking by or on behalf of the Indemnified Person
to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in subsection
(a) above. This indemnification shall survive the termination of this
Trust Agreement.
Section 8.07. Corporate Property Trustee Required; Eligibility
of Trustees.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities which is eligible to act as a trustee under
the Trust Indenture Act Section 310(a) (1) and which has (a) a combined capital
and surplus of at least $250,000,000 and (b) an unsecured or deposit rating of
at least investment grade by each of Standard & Poor's Ratings Group and
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Xxxxx'x Investors Service, Inc. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age :and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law, including the Delaware Business Trust Act.
Section 8.08. Conflicting Interests. The Property Trustee
shall comply with the provisions of Section 310(b) of the Trust Indenture Act
whether or not the Trust Indenture Act is then applicable to this Trust
Agreement, and such provisions are hereby incorporated by reference herein. The
Property Trustee shall not be deemed to have a conflicting interest by virtue of
the Guarantee Agreement or the Indenture.
Section 8.09. Co-Trustees and Separate Trustee. Unless an
Event of Default shall have occurred and be continuing, at any time or times,
for the purpose of meeting the legal requirements of the Trust Indenture Act, if
applicable, or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Holder of the Common Securities and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in
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the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(1) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
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Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(4) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee. Upon receipt of such Act of Holders, the Property Trustee
shall promptly deliver a copy thereof to each such co-trustee and
separate trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to
the Trust Securities by giving written notice thereof to the Securityholders. If
the instrument of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the resigning Relevant Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
Unless an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at such time by Act of the
Holders of a majority in aggregate Liquidation Value of the Outstanding
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Event of
Default shall have occurred and be continuing, the Holder of the Common
Securities, by Act of the Holder of the Common Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees with respect to the Trust Securities and the Trust, and the retiring
Relevant Trustee shall comply with the applicable requirements of Section 8.11.
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when an Event of Default
shall
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have occurred and be continuing, the Holders of the Preferred Securities, by Act
of the Securityholders of a majority in Liquidation Value of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and the Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Holders of
the Common Securities or the Preferred Securities and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee with respect to
the Trust Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect to the Trust
Securities and the Trust and each appointment of a successor Relevant Trustee
with respect to the Trust Securities and the Trust to all Securityholders in the
manner provided in Section 10.08 and to the Depositor. Each notice shall include
the name of the successor Relevant Trustee with respect to the Trust Securities
and the Trust and the address of its Corporate Trust Office.
In the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (i)
the unanimous act of remaining Administrative Trustees if there are at least two
of them or (ii) otherwise by the Depositor (with the successor satisfying the
eligibility requirement for an Administrative Trustee or a Delaware Trustee, as
the case may be, set forth in Section 8.07 hereof). Additionally,
notwithstanding the foregoing or any other provision of this Trust Agreement, in
the event the Depositor believes that any Administrative Trustee or the Delaware
Trustee, as the case may be, has become incompetent or incapacitated, the
Depositor, by notice to the remaining Trustees, may terminate the status of such
Person as an Administrative Trustee or the Delaware Trustee, as the case may be,
(in which case the vacancy so created will be filled in accordance with the
preceding sentence)
Section 8.11. Acceptance of Appointment by Successor. In the
case of the appointment hereunder of a successor Relevant Trustee with respect
to Trust Securities and the Trust, the retiring Relevant Trustee and each
successor Relevant Trustee so appointed shall execute and deliver an amendment
hereto, together with such other instrument or instruments as may be necessary,
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wherein each successor Relevant Trustee shall accept such appointment and which
amendment (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust and (2) shall add to or change any
of the provisions of this Trust Agreement as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Relevant Trustee, it being understood that nothing herein or in such 1=
amendment shall constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Relevant Trustee; and upon the request of the Depositor, the
Trust or any successor Relevant Trustee, such retiring Relevant Trustee shall,
upon payment of all amounts due to it hereunder, duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property (including legal
title thereto, in the case of a retiring Property Trustee), all proceeds thereof
and money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust; and upon execution and delivery of such
amendment and instrument, the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
Administrative Trustees on behalf of the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or, if not a natural
person, the Delaware Trustee or any Administrative Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, without the execution or filing of any paper or any further
act on the part
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of any of the parties hereto; provided such Person shall be otherwise qualified
and eligible under this Article.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Trust (or any other obligor upon the KDSM
Senior Debentures or the Trust Securities), the Property Trustee shall be
subject to the provisions of the Trust Indenture Act (whether or not then
applicable to the Trust Agreement) regarding the collection of claims against
the Depositor or the Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, 1997, the Property Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Securities Register,
(i) as provided in Trust Indenture Act Section 313 (c), and to the Depositor, a
brief report dated as of such May 15 in accordance with and to the extent
required by Trust Indenture Act Section 313(a) and (ii) a statement that the
Property Trustee has complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the case of the initial report,
the period since the Closing Date) ending with such May 15 or, if the Property
Trustee has not complied in any material respect with such obligations, a
description of such non-compliance.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor.
Section 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) (whether or not then applicable to the
Trust Agreement) and the compliance certificate required by Section 314 of the
Trust Indenture Act (whether or not then applicable to the Trust Agreement) in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act (whether or not then applicable to the Trust Agreement).
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Section 8.16. Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act
(whether or not then applicable to the Trust Agreement). Any certificate or
opinion required to be given by an officer pursuant to Section 314(c) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be four and shall consist of
one Delaware Trustee, one Property Trustee and two Administrative Trustees
(provided that the Depositor (or the holders of a majority in Liquidation Amount
of the Preferred Securities upon an Event of Default), by written instrument may
increase or decrease the number of Administrative Trustees)
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2. 07 (a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the
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name of the Trust or the names of the Administrative Trustees or otherwise as
the Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section 8.19. Outside Business. Any Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Trust Agreement in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Trustee shall
have the right to take for its own account (individually as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act on
any committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
ARTICLE IX
Dissolution and Liquidation
Section 9.01. Dissolution Upon Expiration Date. The Trust
shall automatically dissolve and its affairs be wound up on March 15, 2015 (the
"Expiration Date") following the distribution of the Trust Property in
accordance with Section 9.04.
Section 9.02. Early Dissolution. Upon the first to occur of
any of the following events (such first occurrence, an "Early Dissolution
Event")
(i) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, Xxxxxxxx or one or more of its
Subsidiaries which in the aggregate own more than 50% of Xxxxxxxx'x
consolidated assets;
(ii) the occurrence of a Tax Event or Investment Company Act
Event and a related required redemption of the Preferred Securities for
cash or (in the case of a Tax Event) the distribution of the KDSM
Senior Debentures to Securityholders upon confirmation of the Parent
Debenture Guarantee by Xxxxxxxx and in accordance with Section 4.02, as
the case may be;
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(iii) the redemption of all of the Preferred Securities
whether for cash or property; and
(iv) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
then the Administrative Trustee and the Property Trustee shall take such action
as is required by Section 4.02 or Section 9.04, as applicable. The Trust may
only be dissolved pursuant to an Early Dissolution Event described in Section
9.02(i) with the consent of the Holders of a Majority in Liquidation Value of
the Outstanding Preferred Securities.
Section 9.03. Dissolution. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall dissolve upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.04, or upon the redemption of all of the Trust Securities
pursuant to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (ii) the payment of any expenses
owed by the Trust; (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (iv) the
filing with Delaware Secretary of State of a certificate of cancellation for the
Trust upon the completion of winding up following the dissolution of the Trust.
Section 9.04. Liquidation.
(a) (i) If an Early Dissolution Event (other than a Tax Event
covered by clause (ii)) occurs or due to the Expiration Date, the Depositor, as
holder of the Common Securities, chooses to cause the liquidation of the Trust,
the Trust Property shall be liquidated, and the Trust shall be dissolved and its
affairs be wound-up by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution and winding-up
of the Trust and its affairs (the "Liquidation Date"), the Securityholders will
be entitled to receive out of the assets of the Trust available for distribution
to Securityholders, after satisfaction of all liabilities to creditors, an
amount equal to the Liquidation Value per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment whether or not earned or declared
(such amount, and the amount described as being paid in clause (d) below, being
the "Liquidation Distribution"). If, upon any such dissolution and winding-up,
the Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, the amounts available to be paid by the Trust on the
Preferred Securities
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shall be paid first to the Holders of Outstanding Preferred Securities on a pro
rata basis (based upon Liquidation Values); and second, to the extent assets are
available, to the Holders of Outstanding Common Securities upon any such
dissolution, winding-up or termination on a pro rata basis.
(ii) If a Tax Event occurs and the Depositor as holder of the
Common Securities elects to have the Trust liquidated, the Trust shall be
liquidated by the Administrative and Property Trustee as expeditiously as such
Trustees determine to be appropriate by distributing to each Securityholder,
after satisfaction of liabilities to creditors, and confirmation that the Parent
Debenture Guarantee is effective, a Like Amount of the KDSM Senior Debentures
(and Additional Amounts and Registration Default Distributions if applicable),
subject to Section 9.04(d) provided, however, that the Administrative Trustee
and the Property Trustee shall be permitted to follow the direction of the
holders of a majority of the Common Securities to dissolve the Trust and
distribute the KDSM Senior Debentures to Holders of Trust Securities in
accordance with this Section 9.04 only if (1) Xxxxxxxx confirms that its full
and unconditional Parent Debenture Guarantee of the KDSM Senior Debentures will
be effective upon such distribution of KDSM Senior Debentures and (2) the Trust
shall have received an opinion of independent legal counsel experienced in such
matters to the effect that the Holders of Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of such distribution. Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid, mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(A) state the Liquidation Date;
(B) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent the assets to be paid to the holders of Trust Securities upon
liquidation of the Trust; and
(C) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for the KDSM
Senior Debentures, or receive a Liquidation Distribution, as the case
may be, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.04(d) applies, in order to
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effect the liquidation of the Trust and distribution of the KDSM Senior
Debentures to Securityholders, the Property Trustee shall establish such
procedures as it shall deem appropriate to effect the distribution of the KDSM
Senior Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) if the Trust holds the KDSM Senior Debentures, certificates
representing the KDSM Senior Debentures will be issued pro rata to Holders of
Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) KDSM, Inc. shall use
its reasonable efforts to (x) have the KDSM Senior Debentures listed on the New
York Stock Exchange or on such other exchange (if any) as the Preferred
Securities are then listed, (y) have the KDSM Senior Debentures held through the
Depositary and (z) take any reasonable action necessary to effect the
distribution of the KDSM Senior Debentures, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent the pro
rata share of KDSM Senior Debentures or other assets to be distributed upon
surrender of the Trust Securities, accruing interest (to the extent applicable)
from the last Distribution Payment Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments or interest or principal will be
made to Holders of Trust Securities Certificates with respect to such KDSM
Senior Debentures) and (v) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive the
KDSM Senior Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the KDSM Senior
Debentures in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, and the Trust shall
be dissolved, and its affairs be wound-up, by the Property Trustee in such
manner as the Property Trustee determines. In such event, on the date of the
dissolution and winding-up of the Trust and its affairs, the Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of liabilities to creditors,
an amount equal to the Liquidation Value per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment whether or not earned or
declared. If, upon any such dissolution and winding-up, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate
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Liquidation Distribution, then, the amounts available to be paid by the Trust on
the Preferred Securities shall be paid first to the Holders of Outstanding
Preferred Securities on a pro rata basis (based upon Liquidation Values); and
second, to the extent amounts remain, to the Holders of Outstanding Common
Securities upon any such dissolution, winding-up or termination on a pro rata
basis.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or otherwise,
in a Trust Security shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any Securityholder
for such person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Section 10.02. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Administrative Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein or therein which may be inconsistent with any other provision herein or
therein, or to make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be inconsistent with the
other provisions of this Trust Agreement or (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified for United States federal income
tax purposes as an association taxable as a corporation at any time that any
Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an "investment company" under the Investment Company Act
of 1940, as amended; provided, however, that such amendment or action shall not
adversely affect the rights of any Securityholder and, in the case of clause
(i), any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any
provision of this Trust Agreement may be amended by the Administrative Trustees
and the Depositor with (i) the consent of Trust Securityholders representing not
less than a majority (based upon Liquidation Values) of the Trust Securities
then Outstanding and (ii) receipt by the Trustees of an Opinion of
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Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust for federal income tax purposes or cause the Trust to
fail or cease to qualify for an exemption from the status of an "investment
company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount, timing, place of
payment or currency of any Distribution or Liquidation Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution or
Liquidation Distribution required to be made in respect of the Trust Securities
as of a specified date, (ii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date, (iii) modify
the first sentence of Section 2.06 hereof, (iv) authorize or issue any interest
in the Trust other than as contemplated by this Agreement as of the date hereof,
(v) change the Redemption Price or modify the provisions of Section 4.02 hereof
or (vi) affect the limited liability of any holder of Preferred Securities;
notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.06 hereof), the proviso in the first sentence of Section 6.01(b) hereof and
paragraphs (b), (c) and (d) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for an
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the written consent of the Depositor, the Property Trustee or
the Delaware Trustee, as the case may be, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on, or effects any
rights, liabilities or indemnifications of, the Depositor, the Property Trustee
or the Delaware Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor, the
Property Trustee and the Delaware Trustee, a copy of such amendment.
Section 10.03. Agreement to be Bound. Each Person, by
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virtue of having become a Securityholder or an Owner in accordance with the
terms of this Trust Agreement, without any signature or further manifestation of
assent, shall be deemed to have expressly and unconditionally assented and
agreed to the terms of, and shall be bound by, this Trust Agreement, the
Guarantee Agreement and the Indenture.
Section 10.04. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Section 10.06. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustee or both, including any successor by operation of law.
Section 10.07. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Holder of Preferred Securities, to such Holder
of Preferred Securities as such Securityholder's name and address may appear on
the Securities Register and (ii) in the case of the Holder of Common Securities
or the Depositor, to KDSM, Inc. c/x Xxxxxxxx Broadcast Group, Inc., 0000 Xxxx
00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 Attention: Treasurer. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee , the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee,
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First Union National Bank of Maryland, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Department; (ii) with respect to the Delaware
Trustee, First Union Bank of Delaware, One Xxxxxx Xxxxxx, 0xx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Administration, and
(iii) with respect to the Administrative Trustees, Xxxxx X. Xxxxx and Xxxxx X.
Xxx, 0000 X. 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Such notice, demand or
other communication to or upon the Trust or any Trustee shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing by the
Trust or any Trustee.
Section 10.09. Agreement Not to Petition. Each of the Trustees
and the Depositor agree for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in accordance
with Article IX, they shall not file, or join in the filing of, a petition
against the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the Federal
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Depositor takes action in violation of this Section 10.09, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
there from and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act. As of the date hereof:
(a) this Trust Agreement shall as a matter of contract be
subject to the provisions of the Trust Indenture Act that are required
to be part of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions; and
(b) if and to the extent that any provision of this Trust
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
Section 10.11. Reports. Whether or not Xxxxxxxx or the Trust
is subject to Section 13(a) or 15(d) of the Exchange Act, the Depositor shall
send to the Holders of Preferred
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Securities copies of the annual reports, quarterly reports and other documents
which Xxxxxxxx would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) if Xxxxxxxx were so subject, such documents to be
filed with the Commission to the extent permitted under the Exchange Act on or
prior to the respective dates (the "Required Filing Dates") by which Xxxxxxxx
would have been required so to file such documents if Xxxxxxxx were so subject.
KDSM, Inc. will also in any event (x) within 15 days of each Required Filing
Date transmit by mail to all holders of the Outstanding Preferred Securities, as
their names and addresses appear in the register, without cost to such holders,
copies of the annual reports, quarterly reports and other documents which
Xxxxxxxx would have been required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act if Xxxxxxxx were subject to such
Sections and (y) if filing such documents by Xxxxxxxx with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective holder at the Trust's cost. Any such documents sent to the
holders of Outstanding Preferred Securities shall also include financial
information regarding KDSM, Inc. and the Trust to the extent information
regarding KDSM, Inc. and the Trust would be required to be included in a
registration statement relating to the Preferred Securities and the KDSM Senior
Debentures if such securities were being issued to the public.
Section 10.12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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Section 10.13. Third Party Beneficiaries. The banks under the
Bank Credit Agreement and all holders of the Existing Notes are third party
beneficiaries of Section 4.08 of this Trust Agreement and are entitled to rely
thereon as if a party thereto.
KDSM, INC,
as Depositor
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
FIRST UNION NATIONAL BANK OF
MARYLAND,
as Property Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Property Trustee
FIRST UNION BANK OF DELAWARE,
as Delaware Trustee
By:
----------------------------
Name:
Title:
\s\ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
as Administrative Trustee
\s\ Xxxxx X. Xxx
--------------------------------
Xxxxx X. Xxx,
as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST OF XXXXXXXX CAPITAL
THIS Certificate of Trust of Xxxxxxxx Capital (the "Trust"),
dated as of February 24, 1997, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. Section.3801, et seq.).
1. Name. The name of the business trust formed hereby is Xxxxxxxx Capital.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are First
Union Bank of Delaware, One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX
00000, Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned trustees of the Trust have
executed this Certificate of Trust as of the date first-above written.
FIRST UNION NATIONAL BANK OF MARYLAND,
as trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION BANK OF DELAWARE, as trustee
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXX X. XXX, as trustee
/s/ Xxxxx X. Xxx
------------------------------------------
EXHIBIT B
BOOK-ENTRY-ONLY CORPORATE EQUITY ISSUES
Letter of Representations
Xxxxxxxx Capital
[Name of Issuer]
First Union National Bank of Maryland
[Name of Agent]
March 12, 1997
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: $200,000,000 11 5/8% High Yield Trust Offered Preferred
Securities ("HYTOPS"); CUSIP number: 000000000
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Securities"). Issuer is
selling the Securities to Xxxxx Xxxxxx Inc. and Chase Securities Inc.
(collectively, the "Initial Purchasers") pursuant to a Purchase Agreement dated
March 5, 1997 (the "Document"). Initial Purchasers will take delivery of the
Securities through The Depository Trust Company ("DTC"). First Union National
Bank of Maryland, the property trustee of the Issuer, is acting as transfer
agent, paying agent and registrar with respect to the Securities (the "Trustee"
or the "Agent").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities, Issuer
and Agent make the following
representations to DTC:
1. Prior to closing on the Securities on March 12, 1997, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each of the Securities with the offering value set
forth on Schedule A hereto, the total of which represents 100% of the offering
value of such Securities. If, however, the offering value of any Security
exceeds $200 million, one certificate will be issued with respect to each $200
million of offering value and an additional certificate will be issued with
respect to any remaining offering value. If the Securities will be held by a DTC
FAST Agent, as custodian for DTC, such Security certificate shall remain in
Agent's custody pursuant to the provisions of the FAST Balance Certificate
Agreement currently in effect between Agent and DTC. Each Security certificate
shall bear the legend below:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange,
or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.
2. Issuer (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificate(s) by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC not less
than 15 calendar days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be sent to DTC's Reorganization Department
(000) 000-0000 or (000) 000-0000, and receipt of such notices shall be confirmed
by telephoning (000) 000-0000. Notices to DTC pursuant to this Paragraph by mail
or by any other means shall be sent to DTC's Reorganization Department as
indicated in Paragraph 7.
4. In the event of a stock split, recapitalization, conversion, or any
similar transaction resulting in the cancellation of all or any part of the
Securities represented thereby, the Agent shall send DTC a notice of such event
as soon as practicable, but in no event less than five business days prior to
the effect date of such transaction.
5. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to
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DTC specifying: (a) the amount of the redemption or refunding; (b) in the case
of a refunding, the maturity date(s) established under the refunding; and (c)
the date such notice is to be distributed to Security holders or published (the
"Publication Date"). Such notice shall be sent to DTC by a secure means (E.G.
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close business on the business day before or, if possible, two business days
before the Publication Date. Issuer or Agent shall forward such notice either in
a separate secure transmission for each CUSIP number or in a secure transmission
for multiple CUSIP numbers (if applicable) which includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall not be less than 30 days
nor more than 60 days prior to the redemption date or, in the case of an advance
refunding, the date that the proceeds are deposited in escrow. Notices to DTC
pursuant to this Paragraph by telecopy shall be sent to DTC's Call Notification
Department at (000) 000-0000 or (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to:
Manager, Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
6. In the event of an offering or issuance of rights with respect to
the Securities outstanding, Agent shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to such rights offering or
issuance; any applicable expiration or deadline date, or any date by which any
action on the part of holders of such Securities is required; and (c) the
Publication Date of such notice.
The Publication Date will be as soon as practicable after the
announcement by the Company of any such offering or issuance of rights with
respect to the Securities represented thereby. DTC requires that the Publication
Date be not less than 30 days nor more than 60 days prior to the related payment
date, distribution date, or issuance date, respectively.
7. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
Paragraph 5. Notices to DTC pursuant to this Paragraph and notices of other
corporate actions by telecopy shall be sent to DTC's Reorganization Department
at (000) 000-0000 or (212) 709- 1094, and receipt of such notices shall be
confirmed by telephoning (000) 000-0000. Notices to DTC pursuant to the above by
mail or by any other means shall be sent to:
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Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
8. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities (listed on Schedule A hereto) and the accompanying
description of such Securities, which, as of the date of this letter, is
"Xxxxxxxx Capital 11 5/8% High Yield Trust Offered Preferred Securities
("HYTOPS").
9. Issuer or Agent shall provide written notice to a standard dividend
announcement service subscribed to by DTC. In the event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the payment information is available. If electronic transmission has not been
arranged, absent any other arrangements between Issuer or Agent and DTC, such
information should be sent by telecopy to DTC's Dividend Department at (212)
709-1723 or (000) 000-0000, and receipt of such notices shall be confirmed by
telephoning (000) 000-0000. Notices to DTC pursuant to the above by mail or by
any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
After establishing the dollar payment to be made on the Securities in
question, agent will notify DTC's Dividend Department of the payment and payment
date preferably five, but not less than two, business days prior to the
effective date for such transaction.
10. Issuer or Agent shall provide no later than noon (Eastern Time)
automated notification of CUSIP-level detail for dividend payments to DTC on the
payment date.
11. Dividend payments and cash distributions shall be received by Cede
& Co. as nominee as of DTC, or its registered assigns, in same-day funds or the
equivalent no later than 2:30 p.m. (Eastern Time) on each payment date. Absent
any other arrangements between Issuer or Agent and DTC, such funds shall be
wired as follows:
The Chase Manhattan Bank
ABA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account #066-026776
-4-
12. Redemption payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds by 2:30 p.m. (Eastern Time) on
payment date. Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
BA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account #066-027306
13. Reorganization payments resulting from corporate actions (such as
tender offers or mergers) shall be received by Cede & Co., a nominee of DTC, or
its registered assigns, in same- day funds by 2:30 p.m. (Eastern Time) on
payment date. Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
BA #021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account #066-027608
14. DTC may direct Issuer or Agent to use any other number or address
as the number or address to which notices or payments of dividends,
distributions, or redemption proceeds may be sent.
15. In the event of a redemption, acceleration, or any other similar
transaction (E.G., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in the number of Securities outstanding, except in the case of final
redemption, in which case the certificate will be presented to Issuer or Agent
prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certified Securities, Issuer or Agent shall
notify DTC of the availability of certificates. In such event, Issuer or Agent
shall issue, transfer, and exchange certificates in appropriate amounts, as
required by DTC and others.
17. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing
-5-
Securities to any DTC Participant having Securities credited to its DTC
accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. Issuer represents that at the time of initial registration in the
name of DTC's nominee, Cede & Co., the Securities were Legally and Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1993, as amended (the "Securities Act"), and identified by a
CUSIP or CINS identification number that was different from any CUSIP or CINS
number assigned to any securities of the same class that were not Legally or
Contractually Restricted Securities. Issuer shall ensure that a CUSIP or CINS
identification number is obtained for all unrestricted securities of the same
class that is different from any CUSIP or CINS identification number assigned to
a Legally or Contractually Restricted Security of such class, and shall notify
DTC promptly in the event that it is unable to do so. Issuer represents that it
has agreed to comply with all applicable information requirements of Rule 144A.
20. Issuer represents that the Securities are included within the
Private Offerings, Resales and Trading through Automated Linkages Market, a
Self-Regulatory Organization system approved by the Securities Exchange
Commission for the reporting quotation and trade information of securities
eligible for transfer pursuant to Rule 144A (an "SRO Rule 144A System").
21. Issuer and Agent acknowledge that if the Securities cease to be
included in an SRO Rule 144A System during any period in which the Securities
are Legally or Contractually Restricted Securities, the Securities shall no
longer be eligible for DTC's services. Furthermore, DTC may discontinue
providing its services as securities depository with respect to the Securities
at any time by giving reasonable notice to Issuer or Agent. Under any of the
aforementioned circumstances, at DTC's request, Issuer and Agent shall cooperate
fully with DTC by taking appropriate action to make available one or more
separate certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
22. Issuer and Agent acknowledge that so long as Cede & Co. is a record
owner of
--------
(1) "Legally Restricted Security" is a restricted security, as defined in Rule
144(a)(3). A "Contractually Restricted Security" is a security that upon
issuance and continually thereafter can only be sold pursuant to Regulation
S under the Securities Act, Rule 144A, Rule 144 or in a transaction exempt
from the registration requirements of the Securities Act pursuant to
Section 4 of the Securities Act and not involving any public offering;
PROVIDED, HOWEVER, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be
a "Contractually Restricted Security." For purposes of this definition, in
order for a depository receipt to be considered a "Legally or Contractually
Restricted Security," the underlying security must also be a "Legally or
Contractually Restricted Security."
-6-
the Securities, Cede & Co. shall be entitled to all applicable voting rights and
to receive the full amount of all distributions payable with respect thereto.
Issuer and Agent acknowledge that DTC shall treat any DTC Participant
("Participant") having Securities credited to its DTC accounts as entitled to
the full benefits of ownership of such Securities. Without limiting the
generality of the preceding sentence, Issuer and Agent acknowledge that DTC
shall treat any Participant having Securities credited to its DTC accounts as
entitled to receive distributions (and voting rights, if any) in respect of
Securities, and to receive from DTC certificates evidencing Securities. Issuer
and Agent recognize that DTC does not in any way undertake to, and shall not
have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with any of the provisions: (a) of Rule 144A;
(b)of other exemptions from registration under the Securities Act or of any
other state or federal securities laws; or (c) of the offering documents.
23. The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
24. On each day on which Agent is open for business and on which it
receives an instruction originated by a Participant through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of shares, units or obligations (a "Deposit
Instruction"), Agent shall, before 6:30 p.m. (Eastern Time) that day, either
approve or cancel the Deposit Instruction through the DWAC system.
25. On each day on which Agent is open for business and on which it
receives an instruction originated by a Participant through the DWAC systems to
decrease the Participant's account by a specified number of shares, units, or
obligations (a "Withdrawal Instruction"), Agent shall, before 6:30 p.m. (Eastern
Time) that day, either approve or cancel the Withdrawal Instruction through the
DWAC system.
26. Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new, reissued or
reregistered certificated security on registration of transfer to the name of
Cede & Co. for the quantity of Securities evidenced by the Balance Certificate
after the Deposit or Withdrawal Instruction is effected.
27. It is understood that if the holders of the Securities shall at any
time have the right to tender the Securities to Issuer and require that issuer
repurchase such holders' Securities pursuant to the Document and Cede & Co., as
nominee of DTC, or its registered assigns, as the record owner, is entitled to
tender the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC will receive
during the applicable tender period instructions from its Participants to tender
Securities for purchase. The undersigned agree that such tender for purchase may
be made by DTC by means of a book-entry credit of such Securities to the account
of Trustee, as agent for Issuer, provided that such credit is made on or before
the final day of the applicable tender period. DTC agrees that promptly after
the recording of any such book-entry credit, it will provide to Trustee,
-7-
as agent for Issuer, an Agent Receipt ad Confirmation or the equivalent in
accordance with the Repayment Option Procedures; identifying the Securities and
the aggregate principal amount thereof as to which such tender for purchase has
been made.
28. Trustee or Issuer shall send DTC a notice regarding such optional
tender by hand or by a secure means (e.g., legible facsimile transmission,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business two business days before the Publication Date. The Publication Date
shall not be less than 15 days prior to the expiration date of the applicable
tender period. Such notice shall state whether any partial redemption of the
Securities is scheduled to occur during the applicable optional tender period.
29. If delivered by hand or sent by mail or overnight delivery, such
notice shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
If sent by facsimile transmission, such notice shall be sent to (000) 000-0000.
Trustee or Issuer shall confirm DTC's receipt of such facsimile transmission by
telephoning (000) 000-0000.
[Signatures Begin on Following Page]
-8-
Very truly yours,
XXXXXXXX CAPITAL
(Issuer)
By: /s/ Xxxxx X. Xxx
--------------------------------
(Authorized Trustee's Signature)
FIRST UNION NATIONAL BANK OF
MARYLAND
(Agent)
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
cc: Underwriter
Underwriter's Counsel
-10-
SCHEDULE A
Xxxxxxxx Capital $200,000,000 11 5/8% High Yield Trust Preferred
Securities (Describe Issue)
CUSIP Number Share Total Offering ($) Value
829230200 2,000,000 $200,000,000
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
-----------------------------------
(PREPARED BY DTC--BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate amount of
such issue, and will be deposited with DTC. [If, however, the aggregate
principal amount of [any] issue exceeds $200 million, one certificate will be
issued with respect to each $200 million of principal amount and an additional
certificate will be issued with respect to any remaining principal amount of
such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participant's accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participant's records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
-i-
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may nor may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, to Indirect Participants, and by Direct and Indirect Participants
to Beneficial Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest if each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts in
the Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., as nominee of DTC. DTC's practice is to
credit Direct Participants' accounts on payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe that
it will not receive payment on payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, a and dividends t DTC is the responsibility
of Issuer or Agent, disbursement of such payments to Direct Participants shall
be the responsibility of Cede & Co., and disbursement of such payments to Direct
Participants shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to [Tender/Remarketing] Agent. The requirement for
physical delivery of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership rights in the
Securities are transferred by Direct Participants on DTC's records and followed
by a book-entry credit of tendered securities to [Tender/Remarketing Agent's DTC
account.]
-ii-
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-iii-
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 62,000
Certificate Evidencing Common Securities
of
XXXXXXXX CAPITAL
Common Securities
(liquidation amount U.S. $100 per Common Security)
Xxxxxxxx Capital, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that KDSM, Inc.
(the "Holder") is the registered owner of 62,000 common securities of the Trust
representing beneficial interests in the assets of the Trust and designated the
Common Securities (liquidation amount U.S. $100 per Common Security) (the
"Common Securities"). In accordance with, and except as provided by, Section
5.11 of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of March 12, 1997, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Common Securities are solely payable by the
Trust from the Trust Property (as defined in the Trust Agreement). The Trust
will furnish a copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder hereof is bound
by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this 12th day of March, 1997.
XXXXXXXX CAPITAL
By: \s\ Xxxxx X. Xxx
--------------------------
Xxxxx X. Xxx
Administrative Trustee
Registered and Countersigned by
FIRST UNION NATIONAL BANK OF MARYLAND
as Securities Registrar
By: \s\ Xxxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxxx
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of March 12, 1997, between KDSM, Inc., a
Maryland corporation ("KDSM, Inc.") and Xxxxxxxx Capital, a Delaware business
trust (the "Trust")
WHEREAS, the Trust intends to issue and sell its Common
Securities (the "Common Securities") to and receive the KDSM Senior Debentures
from KDSM, Inc. and to issue and sell Xxxxxxxx Capital 11 5/8% High Yield Trust
Originated Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of March 12, 1997 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, KDSM, Inc. is the issuer of the KDSM Senior
Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase Xxxxxxxx and KDSM, Inc.
hereby agree shall benefit Xxxxxxxx and KDSM, Inc. and which purchase Xxxxxxxx
and KDSM, Inc. acknowledge will be made in reliance upon the execution and
delivery of this Agreement, Xxxxxxxx, KDSM, Inc. and the Trust hereby agree as
follows:
ARTICLE I
Section 1.01. Guarantee by KDSM Inc. Subject to the terms and
conditions hereof, KDSM, Inc. hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Creditors") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Creditors. As used herein,
"Obligations" means any indebtedness, expenses or liabilities, whether
contingent or actual, of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or Common Securities (as defined in the
Trust Agreement) in the Trust the amounts due such holders pursuant to the terms
of the Preferred Securities or Common Securities, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, the
holders of Preferred Securities and all such Creditors, whether or not such
Creditors have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on which the Trust
terminates and there are no Creditors remaining;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any Creditor must restore
payment of any sums paid under any Obligation for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. KDSM, Inc. hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and Xxxxxxxx hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of KDSM, Inc. under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Creditors to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Creditors with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt, or other similar proceedings affecting, the Trust or any of the assets
of the Trust.
There shall be no obligation of the Creditors to give notice
to, or obtain the consent of, KDSM, Inc. with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Creditor may enforce this
Agreement directly against KDSM, Inc. and KDSM, Inc. waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against KDSM, Inc.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of KDSM, Inc.
and shall inure to the benefit of the Creditors.
Section 2.02. Amendment. So long as there remains any Creditor
or any Preferred Securities of any series are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Creditor or to the
holders of the Preferred Securities.
Section 2.03. Third Party Beneficiaries. The Creditors and the
holders of Preferred Securities shall be third party beneficiaries of this
Agreement, including, but not limited to, the provisions of Section 1.01 and
this Section 2.03 and shall be entitled to rely thereon as if a party thereto.
Section 2.04. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex), to wit:
To: KDSM, Inc.
c/x Xxxxxxxx Broadcast Group, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
With a copy to:
Xxxxxx & Xxxxxxxx, P.A.
USF&G Tower, 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx,Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
To: Property Trustee
First Union National Bank of Maryland
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No. : 000-000-0000
Attention: Corporate Trust Department
With a copy to:
Administrative Trustees
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
THIS AGREEMENT is executed as of the day and year first above
written.
KDSM, Inc.
By: \s\ Xxxxx X. Xxxxx
--------------------
Name: Xxxxx X. Xxxxx
Title: President
XXXXXXXX CAPITAL
By: \s\ Xxxxx X. Xxx
--------------------
Name: Xxxxx X. Xxx
Title: President
EXHIBIT E
IF THIS IS A GLOBAL SECURITY, INSERT - - THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE TRUST AGREEMENT AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE.DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED TN THE TRUST AGREEMENT.
IF DTC IS ACTING AS THE DEPOSITARY, INSERT - - UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[IF THE SECURITY IS A RESTRICTED PREFERRED SECURITY, INSERT -THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE PROPERTY TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE PROPERTY TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
Certificate Number Number of Preferred Securities
2,000,000
CUSIP NO.
( )
Certificate Evidencing Preferred Securities
of
XXXXXXXX CAPITAL
11 5/8% High Yield Trust Originated Preferred Securities
(liquidation amount U.S. $100 per Preferred Security)
Xxxxxxxx Capital, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of 2,000,000 preferred securities of the
Trust representing a beneficial interest in the assets of the Trust and
designated the Xxxxxxxx Capital 11 5/8% High Yield Trust Originated Preferred
Securities (liquidation amount U.S. $100 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.05 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of March 12, 1997, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Preferred
Securities as set forth therein. The Preferred Securities are solely payable by
the Trust from the Trust Property (as defined in the Trust Agreement). The
holder of this certificate is entitled to the benefits of the Parent Guarantee
Agreement entered into by Xxxxxxxx Broadcast Group, Inc., a Maryland
corporation, and First Union National Bank of Maryland, as guarantee trustee,
dated as of March 12, 1997 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to
the Holder of this certificate without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this 12th day of March, 1997.
Xxxxxxxx Capital
By: \s\ Xxxxx X. Xxx
---------------------
Xxxxx X. Xxx
Administrative Trustee
Registered and Countersigned by
First Union National Bank of Maryland,
as Securities Registrar
By: \s\ Xxxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxxx X. Xxxxxxx
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________
Signature: ____________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
EXHIBIT F
[Form of Restricted Securities Transfer Certificate]
RESTRICTED SECURITIES TRANSFER CERTIFICATE
(For transfers pursuant to Section 5.05 of
the Trust Agreement referred to below)
First Union National Bank of Maryland,
as Securities Registrar
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 11 5/8% High Yield Trust Originated Preferred
Securities (the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as
of March 12, 1997 (the "Trust Agreement"), among KDSM, Inc., as Depositor, First
Union National Bank of Maryland, as Property Trustee, First Union Bank of
Delaware, as Delaware Trustee and the Administration Trustees named therein.
Terms used herein and defined in the Trust Agreement or in Rule 144A or Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to $______________ aggregate liquidation
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities")
CUSIP No(s). _________________________
CERTIFICATE No(s). ___________________
CURRENTLY IN BOOK-ENTRY FORM: Yes ___ No ___ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner."
If the Specified Securities are represented by a Global Security, they are held
through a Depositary (except in the name of "DTC") or an Agent Member in the
name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Security, they are registered in the
name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the
meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that
the Owner may be relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least
two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or from an affiliate (as such term
is defined in Rule 144) of the Company, whichever is later,
and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144;
(B) the transfer is occurring after a holding period by the Owner
of at least two years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate
(as such term is defined in Rule 144) of the Company,
whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the
Company; or
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the "Initial Purchaser" (as
defined in the Trust Agreement relating to the Trust to which the Securities
were initially issued).
Dated: _______________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By: ___________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.
