Exhibit 4.1
KDSM, INC., as Issuer,
XXXXXXXX BROADCAST GROUP, INC., as Guarantor in certain circumstances
and
FIRST UNION NATIONAL BANK OF MARYLAND, as Trustee
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INDENTURE
Dated as of March 12, 1997
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$206,200,000
11 5/8% Senior Debentures due 2009
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of March 12, 1997
Trust Indenture Indenture
Act Section Section
--------------- ----------
Section 310 (1) ............... 610, 611
(a)(1) ............... 608
(a)(2) ............... 608
(b) ............... 607, 609
Section 311 (a) ............... 612
Section 312 (c) ............... 702
Section 313 (a) ............... 703
(c) ............... 703, 704
Section 314 (a) ............... 704
(a)(4) ............... 1015
(b) ............... 1402
(c)(1) ............... 103
(c)(2) ............... 103
(d) ............... 1403, 1404
(e) ............... 103
Xxxxxxx 000 (x) ............... 000, 000
(x) ............... 000, 000, 000
(x) ............... 000, 000
(x) ............... 602, 903
Section 316 (a) (last sentence) ............... 101 ("Outstanding")
(a)(1)(A) ............... 502, 512
(a)(1)(B) ............... 513
(b) ............... 508
(c) ............... 105
Section 317 (a)(1) ............... 503
(a)(2) ............... 504
Section 318 (c) ............... 108
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of this Indenture.
TABLE OF CONTENTS
PAGE
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PARTIES....................................................................... 1
RECITALS...................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION........................................ 2
Section 101. Definitions.................................................... 2
"Accredited Investor"........................................... 3
"Acquired Indebtedness"......................................... 3
"Additional Interest"........................................... 3
"Additional Interest Attributable to Deferral".................. 3
"Additional Interest Attributable to Taxes"..................... 3
"Administrative Trustee"........................................ 3
"Affiliate"..................................................... 3
"Agent Member".................................................. 4
"Applicable Procedures"......................................... 4
"Articles Supplementary"........................................ 4
"Asset Sale".................................................... 4
"Asset Transfer Transaction".................................... 4
"Bank Credit Agreement"......................................... 5
"Bankruptcy Law"................................................ 5
"Board of Directors"............................................ 5
"Board Resolution".............................................. 5
"Business Day".................................................. 5
"Capital Lease Obligation"...................................... 6
"Capital Stock"................................................. 6
"Cash Equivalents".............................................. 6
"Change of Control"............................................. 6
"Code".......................................................... 7
"Collateral".................................................... 7
"Collateral Documents".......................................... 7
"Commission".................................................... 7
"Common Securities"............................................. 7
"Company"....................................................... 7
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Note: This table of contents shall not, for any purposes, be deemed to be a part
of this Indenture.
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"Company Request" or "Company Order"............................ 8
"Consolidated".................................................. 8
"Consolidated Interest Expense"................................. 8
"Consolidated Net Income (Loss)"................................ 8
"Consolidated Net Worth"........................................ 9
"Corporate Trust Office"........................................ 9
"Cumulative Consolidated Interest Expense"...................... 9
"Cumulative Operating Cash Flow"................................ 9
"Cumulative Parent Preferred Dividends"......................... 9
"Debt to Operating Cash Flow Ratio"............................. 9
"Default"....................................................... 10
"Depositary".................................................... 10
"Designated Xxxxxxxx Senior Indebtedness"....................... 10
"Disqualified Equity Interests"................................. 10
"Equity Interest"............................................... 10
"Event of Default".............................................. 10
"Exchange Act".................................................. 10
"Exchange Offer"................................................ 11
"Exchange Offer Registration Statement"......................... 11
"Existing Indentures"........................................... 11
"Existing Notes"................................................ 11
"Fair Market Value"............................................. 11
"Film Contract"................................................. 11
"Founders' Notes"............................................... 11
"GAAP".......................................................... 11
"Global Security"............................................... 11
"Guarantee"..................................................... 11
"Guaranteed Debt"............................................... 12
"Holder"........................................................ 12
"Indebtedness".................................................. 12
"Indenture Obligations"......................................... 13
"Independent Director".......................................... 13
"Initial Purchasers"............................................ 13
"Interest Payment Date"......................................... 13
"Interest Rate Agreements"...................................... 13
"Investment Company Act Event".................................. 13
"Investments"................................................... 14
"Issue Date".................................................... 14
"Junior Securities"............................................. 14
"KDSM Senior Debentures" or "KDSM Senior Debenture"............. 14
"Lien".......................................................... 14
"Liquidation Value"............................................. 14
"Maturity Date"................................................. 14
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"Minority Note"................................................. 14
"Moody's"....................................................... 15
"1993 Notes".................................................... 15
"1995 Notes".................................................... 15
"Non-payment Default"........................................... 15
"Officers' Certificate"......................................... 15
"Operating Cash Flow"........................................... 15
"Opinion of Counsel"............................................ 15
"Opinion of Independent Counsel"................................ 15
"Outstanding"................................................... 15
"Parent Preferred Extension Period"............................. 16
"Paying Agent".................................................. 16
"Payment Default"............................................... 17
"Permitted Holders"............................................. 17
"Permitted Investment".......................................... 17
"Permitted Xxxxxxxx Xxxxxx Securities".......................... 17
"Person"........................................................ 17
"Pledge Agreement".............................................. 18
"Predecessor Securities"........................................ 18
"Preferred Equity Interest"..................................... 18
"Property Trustee".............................................. 18
"Prospectus".................................................... 18
"Public Equity Offering"........................................ 18
"Purchase Money Obligation"..................................... 18
"QIB"........................................................... 19
"Redemption Date"............................................... 19
"Redemption Price".............................................. 19
"Registration Rights Agreement"................................. 19
"Registration Statement"........................................ 19
"Regular Record Date"........................................... 19
"Responsible Officer"........................................... 19
"Restricted Securities Legend".................................. 20
"Restricted Securities Transfer Certificate".................... 20
"Restricted Security"........................................... 20
"Rule 144A Information"......................................... 20
"S&P"........................................................... 20
"Sale and Leaseback Transaction"................................ 20
"Securities Act"................................................ 20
"Security Register" and "Security Registrar".................... 20
"Shelf Registration Statement".................................. 20
"Significant Subsidiary"........................................ 20
"Xxxxxxxx"...................................................... 21
"Xxxxxxxx Capital".............................................. 21
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"Xxxxxxxx Senior Indebtedness".................................. 21
"Special Record Date"........................................... 21
"Stated Maturity"............................................... 21
"Subordinated Indebtedness"..................................... 22
"Subsidiary".................................................... 22
"Successor Security"............................................ 22
"Tax Event"..................................................... 22
"Temporary Cash Investments".................................... 23
"Trust" or "Xxxxxxxx Capital"................................... 23
"Trust Indenture Act"........................................... 23
"Trustee"....................................................... 23
"UCC"........................................................... 23
"Voting Rights Triggering Event"................................ 23
"Voting Stock".................................................. 23
"Wholly Owned Subsidiary"....................................... 23
Section 102. Other Definitions.............................................. 23
Section 103. Compliance Certificates and Opinions........................... 24
Section 104. Form of Documents Delivered to Trustee......................... 25
Section 105. Acts of Holders................................................ 26
Section 106. Notices, etc., to Trustee, the Company and Xxxxxxxx............ 27
Section 107. Notice to Holders; Waiver...................................... 28
Section 108. Conflict with Trust Indenture Act.............................. 29
Section 109. Effect of Headings and Table of Contents....................... 29
Section 110. Successors and Assigns......................................... 29
Section 111. Separability Clause............................................ 29
Section 112. Benefits of Indenture.......................................... 29
Section 113. Governing Law.................................................. 29
Section 114. Non-Business Days.............................................. 30
Section 115. Schedules and Exhibits......................................... 30
Section 116. Counterparts................................................... 30
ARTICLE TWO KDSM SENIOR DEBENTURE FORMS............................ .... 30
Section 201. Forms Generally................................................ 30
Section 202. Form of Face of KDSM Senior Debenture.......................... 31
Section 203. Form of Reverse of KDSM Senior Debentures...................... 42
Section 204. Additional Provisions Required in Global Security.............. 51
Section 205. Form of Trustee's Certificate of Authentication................ 52
ARTICLE THREE THE KDSM SENIOR DEBENTURES.................................. 53
Section 301. Title and Terms................................................ 53
Section 302. Denominations.................................................. 54
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Section 303. Execution, Authentication, Delivery and Dating................. 54
Section 304. Temporary KDSM Senior Debentures............................... 55
Section 305. Global Securities.............................................. 56
Section 306. Registration, Registration of Transfer and Exchange............ 58
Section 307. Special Transfer Provisions.................................... 60
Section 308. Mutilated, Destroyed, Lost and Stolen KDSM Senior Debentures... 61
Section 309. Payment of Interest; Interest Rights Preserved................. 62
Section 310. Persons Deemed Owners.......................................... 63
Section 311. Cancellation................................................... 64
Section 312. Computation of Interest........................................ 64
Section 313. Right of Set-Off............................................... 64
Section 314. CUSIP Numbers.................................................. 65
Section 315. Agreed Tax Treatment........................................... 65
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE.......................... 65
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance... 65
Section 402. Defeasance and Discharge....................................... 65
Section 403. Covenant Defeasance............................................ 66
Section 404. Conditions to Defeasance or Covenant Defeasance................ 66
Section 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions........................ 69
Section 406. Reinstatement.................................................. 69
ARTICLE FIVE REMEDIES.................................................... 70
Section 501. Events of Default.............................................. 70
Section 502. Acceleration of Maturity; Rescission and Annulment............. 72
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 73
Section 504. Trustee May File Proofs of Claim............................... 74
Section 505. Trustee May Enforce Claims without Possession of KDSM
Senior Debentures............................................ 75
Section 506. Application of Money Collected................................. 75
Section 507. Limitation on Suits............................................ 75
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest............................................. 76
Section 509. Restoration of Rights and Remedies............................. 77
Section 510. Rights and Remedies Cumulative................................. 77
Section 511. Delay or Omission Not Waiver................................... 77
Section 512. Control by Holders............................................. 77
Section 513. Waiver of Past Defaults........................................ 77
Section 514. Undertaking for Costs.......................................... 78
Section 515. Waiver of Stay; Extension or Usury Laws........................ 78
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ARTICLE SIX THE TRUSTEE................................................. 79
Section 601. Notice of Defaults............................................. 79
Section 602. Certain Rights of Trustee...................................... 79
Section 603. Trustee Not Responsible for Recitals, Dispositions of
KDSM Senior Debentures or Application of Proceeds Thereof.... 80
Section 604. Trustee and Agents May Hold Securities; Collections; etc....... 81
Section 605. Money Held in Trust............................................ 81
Section 606. Compensation and Indemnification of Trustee and Its Prior
Claim........................................................ 81
Section 607. Conflicting Interests.......................................... 82
Section 608. Corporate Trustee Required; Eligibility........................ 82
Section 609. Resignation and Removal; Appointment of Successor Trustee...... 83
Section 610. Acceptance of Appointment by Successor......................... 84
Section 611. Merger, Conversion, Consolidation or Succession to Business.... 85
Section 612. Preferential Collection of Claims Against Company.............. 86
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........... 86
Section 701. Company to Furnish Trustee Names and Addresses of Holders...... 86
Section 702. Disclosure of Names and Addresses of Holders................... 86
Section 703. Reports by Trustee............................................. 86
Section 704. Reports by Company and Xxxxxxxx................................ 87
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE....................................................... 87
Section 801. Company May Consolidate, etc., Only on Certain Terms........... 87
Section 802. Successor Substituted.......................................... 90
ARTICLE NINE SUPPLEMENTAL INDENTURES..................................... 90
Section 901. Supplemental Indentures and Agreements without Consent
of Holders................................................... 90
Section 902. Supplemental Indentures and Agreements with Consent of
Holders...................................................... 91
Section 903. Execution of Supplemental Indentures and Agreements............ 93
Section 904. Effect of Supplemental Indentures.............................. 93
Section 905. Conformity with Trust Indenture Act............................ 93
Section 906. Reference in KDSM Senior Debentures to Supplemental
Indentures................................................... 93
ARTICLE TEN COVENANTS................................................... 93
Section 1001. Payment of Principal, Premium and Interest.................... 94
Section 1002. Maintenance of Office or Agency............................... 94
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Section 1003. Money for Security Payments to Be Held in Trust............... 94
Section 1004. Corporate Existence........................................... 96
Section 1005. Payment of Taxes and Other Claims............................. 96
Section 1006. Maintenance of Properties..................................... 96
Section 1007. Insurance..................................................... 97
Section 1008. Limitation on Restricted Payments............................. 97
Section 1009. Limitation on Indebtedness.................................... 98
Section 1010. Limitation on Issuances of Guarantees of Indebtedness......... 98
Section 1011. Limitation on Transactions with Affiliates.................... 99
Section 1012. Limitation on Liens........................................... 99
Section 1013. Limitation on Sale of Assets..................................100
Section 1014. Impairment of Security Interest...............................100
Section 1015. Provision of Financial Statements and Reports.................101
Section 1016. Purchase of KDSM Senior Debentures upon a Change of Control...101
Section 1017. Ownership and Existence of Trust..............................105
Section 1018. Ownership of the Company......................................106
Section 1019. Application of Dividends and Redemption Proceeds..............106
Section 1020. Change of Control Offer under Parent Preferred................106
Section 1021. Limitation on Liens on Parent Preferred.......................106
Section 1022. Statement by Officers as to Default...........................106
Section 1023. Waiver of Certain Covenants...................................107
ARTICLE ELEVEN REDEMPTION OF KDSM SENIOR DEBENTURES.......................107
Section 1101. Rights of Redemption..........................................107
Section 1102. Applicability of Article......................................108
Section 1103. Election to Redeem; Notice to Trustee.........................108
Section 1104. Selection by Trustee of KDSM Senior Debentures to Be
Redeemed....................................................108
Section 1105. Notice of Redemption..........................................109
Section 1106. Deposit of Redemption Price...................................110
Section 1107. KDSM Senior Debentures Payable on Redemption Date.............110
Section 1108. KDSM Senior Debentures Redeemed or Purchased in Part..........110
ARTICLE TWELVE SATISFACTION AND DISCHARGE.................................111
Section 1201. Satisfaction and Discharge of Indenture.......................111
Section 1202. Application of Trust Money....................................112
ARTICLE THIRTEEN GUARANTEE..................................................112
Section 1301. Xxxxxxxx'x Guarantee..........................................112
Section 1302. Continuing Guarantee; No Right of Set-Off; Independent
Obligation..................................................113
Section 1303. Guarantee Absolute............................................114
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Section 1304. Right to Demand Full Performance..............................116
Section 1305. Waivers.......................................................116
Section 1306. Xxxxxxxx Remains Obligated in Event the Company Is No Longer
Obligated to Discharge Indenture Obligations.............117
Section 1307. Fraudulent Conveyance; Subrogation............................117
Section 1308. Guarantee Is in Addition to Other Security....................117
Section 1309. Release of Security Interests.................................118
Section 1310. No Bar to Further Actions.....................................118
Section 1311. Failure to Exercise Rights Shall Not Operate as a Waiver;
No Suspension of Remedies................................118
Section 1312. Trustee's Duties; Notice to Trustee...........................118
Section 1313. Successors and Assigns........................................119
Section 1314. Release of Guarantee..........................................119
Section 1315. Guarantee Subordinate to Xxxxxxxx Senior Indebtedness........119
Section 1316. Payment Over of Proceeds upon Dissolution of Xxxxxxxx, etc....120
Section 1317. Suspension of Payment When Senior Indebtedness in Default.....121
Section 1318. Payment Permitted by Xxxxxxxx if No Default...................123
Section 1319. Subrogation to Rights of Holders of Xxxxxxxx Senior
Indebtedness................................................123
Section 1320. Provisions Solely to Define Relative Rights...................123
Section 1321. Trustee to Effectuate Subordination...........................124
Section 1322. No Waiver of Subordination Provisions.........................124
Section 1323. Notice to Trustee by Xxxxxxxx.................................125
Section 1324. Reliance on Judicial Order or Certificate of Liquidating
Agent.......................................................126
Section 1325. Rights of Trustee as a Holder of Xxxxxxxx Senior
Indebtedness; Preservation of Trustee's Rights..............126
Section 1326. Article Applicable to Paying Agents...........................126
Section 1327. No Suspension of Remedies.....................................126
Section 1328. Trustee's Relation to Xxxxxxxx Senior Indebtedness............127
ARTICLE FOURTEEN SECURITY..................................................127
Section 1401. Collateral Documents..........................................127
Section 1402. Recording, Deposit of Pledged Securities, Opinion of
Counsel, etc................................................128
Section 1403. Release of Collateral.........................................128
Section 1404. Trust Indenture Act Requirements..............................128
Section 1405. Authorization of Actions to Be Taken by the Trustee Under
the Collateral Documents.................................129
Section 1406. Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.....................................129
Section 1407. Release upon Termination of the Company's Obligations.........129
TESTIMONIUM.....................................................................
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SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A Restricted Securities Transfer Certificate
- ix -
INDENTURE, dated as of March 12, 1997 (this "Indenture"), among KDSM,
Inc., a Maryland corporation (the "Company"), Xxxxxxxx Broadcast Group, Inc., a
Maryland corporation (the "Guarantor" or "Xxxxxxxx"), and First Union National
Bank of Maryland, a Maryland corporation, as trustee (the "Trustee"). Unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings ascribed to them in the Amended and Restated Trust Agreement, dated as
of March 12, 1997 (the "Trust Agreement"), among the Company, as Depositor,
First Union National Bank of Maryland, as the property trustee thereunder (the
"Property Trustee"), First Union Bank of Delaware, as the Delaware trustee
thereunder, and the administrative trustees named therein (collectively, the
"Administrative Trustees"), as in effect on the date hereof.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of an issue of
11 5/8% Senior Debentures due 2009, Series A (the "Initial KDSM Senior
Debentures" or the "Series A KDSM Senior Debentures"), and an issue of 11 5/8%
Senior Debentures due 2009, Series B (the "Series B KDSM Senior Debentures" and,
together with the Series A KDSM Senior Debentures, the "KDSM Senior
Debentures"), of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture and the KDSM Senior Debentures.
WHEREAS, Xxxxxxxx has duly authorized the issuance of a guarantee (the
"Guarantee") of the KDSM Senior Debentures, of substantially the tenor
hereinafter set forth, and to provide therefor, Xxxxxxxx has duly authorized the
execution and delivery of this Indenture and the Guarantee.
WHEREAS, all acts and things necessary have been done to make (i) the
KDSM Senior Debentures, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of the
Company, and (ii) this Indenture a valid agreement of the Company and Xxxxxxxx
in accordance with the terms of this Indenture.
WHEREAS, Xxxxxxxx Capital (as defined below) may, pursuant to the
Purchase Agreement, dated as of March 5, 1997, among Xxxxxxxx, Xxxxxxxx Capital
and the Initial Purchasers named therein, issue $200,000,000 aggregate
liquidation preference of its 11 5/8% High Yield Trust Offered Preferred
Securities (the "Preferred Securities") with a liquidation amount of $100 per
Preferred Security;
WHEREAS, Xxxxxxxx, in certain circumstances, is guaranteeing, on a
junior subordinated basis, the payment of distributions on the Preferred
Securities, and payment of the Redemption Price (as defined below) and payments
on liquidation with respect to the Preferred Securities, subject to the terms
and conditions of the Parent Guarantee Agreement, dated March 12, 1997 (as
amended, modified or supplemented from time to time, the "Parent Guarantee"),
between Xxxxxxxx and First Union National Bank of Maryland, as guarantee
trustee, for the benefit of the holders of the Preferred Securities;
WHEREAS, the Company wishes to sell to Xxxxxxxx Capital, and Xxxxxxxx
Capital wishes to purchase from the Company, KDSM Senior Debentures in an
aggregate principal amount equal to $206,200,000, and in satisfaction of the
purchase price for such KDSM Senior Debentures, the Administrative Trustees of
Xxxxxxxx Capital, on behalf of Xxxxxxxx Capital, will deliver (or cause to be
delivered) to the Company the sum of $206,200,000.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the KDSM
Senior Debentures by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the KDSM Senior
Debentures, as follows:
ARTICLE ONE
-----------
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, 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 which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(Heart)
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America.
"Accredited Investor" means an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
- 2 -
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Additional Interest" or "Additional Amounts" means the sum of
Additional Interest Attributable to Deferral and Additional Interest
Attributable to Taxes.
"Additional Interest Attributable to Deferral" means interest that
shall accrue on any interest on the KDSM Senior Debentures that is in arrears
for any period or not paid during an Extension Period (as defined below), which
in either case shall accrue at the rate of 11 5/8% per annum compounded
quarterly.
"Additional Interest Attributable to Taxes" means, if Xxxxxxxx Capital
is required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority, such additional amounts as shall be required so that
the net amounts received by Xxxxxxxx Capital under the KDSM Senior Debentures
and available for distribution to holders of the Preferred Securities and the
Common Securities by Xxxxxxxx Capital after paying such taxes, duties,
assessments or governmental charges shall not be less than the amounts Xxxxxxxx
Capital would have received under the KDSM Senior Debentures had no such taxes,
duties, assessments or governmental charges been imposed.
"Administrative Trustee" means the Person or Persons named as the
"Administrative Trustees" in the first paragraph of this instrument, solely in
its capacity as Administrative Trustees of Xxxxxxxx Capital under the Trust
Agreement and not in its individual capacity, or its successor in interest in
such capacity, or any successor administrative trustee appointed as provided in
the Trust Agreement.
"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.
- 3 -
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such KDSM Senior Debenture, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Articles Supplementary" means the operative document under which the
Parent Preferred were issued.
"Asset Sale" means, with respect to any Person, any sale, issuance,
conveyance, transfer, lease or other disposition (including, without limitation,
by way of merger, consolidation or Sale and Leaseback Transaction)
(collectively, a "transfer"), directly or indirectly, in one or a series of
related transactions, of (i) any Equity Interest of any Subsidiary; (ii) all or
substantially all of the properties and assets of any division or line of
business of the Company or its Subsidiaries; or (iii) any other properties or
assets of the Company or any Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any transfer of properties and assets (A) that is governed by Section
801(a), (B) that is by the Company to any Wholly Owned Subsidiary, or by any
Subsidiary to the Company or any Wholly Owned Subsidiary in accordance with the
terms of this Indenture or (C) that aggregates not more than $1,000,000 in gross
proceeds.
"Asset Transfer Transaction" means the sale, transfer or conveyance,
or other disposition, directly or indirectly, in one of a series of related
transactions of any properties or assets of the Company or any of its
Subsidiaries (the "KDSM Transferred Assets") to any Person in exchange for
properties or assets that will be used in the operations of one or more
television or radio broadcasting stations or assets reasonably related thereto
(the "Received Assets"), provided that (i) the Company shall deliver to the
Trustee a written opinion from an investment banking firm of national standing
or other financial services firm experienced in such matters and reasonably
acceptable to the Trustee to the effect that the Fair Market Value of the
Received Assets is at least equal to the greater of (a) 90% of the Fair Market
Value of the KDSM Transferred Assets immediate prior to the proposed Asset
Transfer Transaction or (b) $50 million, (ii) both the Received Assets (if
considered as a separate entity) and the Company, after giving effect to the
Asset Transfer Transaction, would have had positive Operating Cash Flow (as
defined in the Indenture) for at least two prior fiscal years (based on audited
financial statements) and any subsequent three, six or nine-month interim period
(on an unaudited basis) on an actual and pro forma basis (without giving effect
to dividends under the Parent Preferred and interest payments on the KDSM Senior
Debentures) prepared in accordance with Rule 11-02 of Regulation S-X as if such
entity were making a public equity offering under the Securities Act as of the
closing date of the Asset Transfer Transaction; (iii) there has been no material
adverse change in the condition (financial or otherwise), business, prospects,
or results of operations of the Received Assets
- 4 -
since the latter of the end of the last fiscal year or any subsequent three, six
or nine-month interim period; (iv) such transaction does not result in a
violation of the Trust Indenture Act; and (v) the Company shall have delivered
to the Trustee simultaneously with the consummation of the Asset Transfer
Transaction an Officers' Certificate and an Opinion of Counsel, each to the
effect that the transaction complies with this definition and that all
conditions precedent to such Asset Transfer Transaction have been satisfied.
"Bank Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated as of May 31, 1996, between Xxxxxxxx, the subsidiaries 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 has been amended through the date hereof and 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). For all purposes under this Indenture, "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 that have been made in compliance with Section 1009, if applicable.
"Bankruptcy Law" means Title 11 of the United States Code, as amended,
or any successor statute, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Board of Directors" means the board of directors of the Company or
Xxxxxxxx, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or Xxxxxxxx, as the case may
be, to have been duly adopted by the Board of Directors of such entity and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than (i) a Saturday or a Sunday,
(ii) a day on which banking institutions in Maryland or The City of New York are
authorized or obligated by law or executive order to close or (iii) a day on
which the Corporate Trust Office is closed for business.
"Capital Lease Obligation" means any obligation under any capital
lease of real or personal property which, in accordance with GAAP, has been
recorded as a capitalized lease obligation.
- 5 -
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Cash Equivalents" means: (i) any evidence of Indebtedness with a
maturity of one year or less from the date of acquisition issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of one year or less from the date of acquisition
of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of one year or less from
the date of acquisition issued by a corporation that is not an Affiliate of the
Company organized under the laws of any state of the United States or the
District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or
higher) according to Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital
and surplus in excess of $500,000,000; and (v) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 40% of the total outstanding Voting Stock of Xxxxxxxx, provided that the
Permitted Holders "beneficially own" (as so defined) a lesser percentage of such
Voting Stock than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of Xxxxxxxx; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of Xxxxxxxx (together with any new directors whose
election to such Board of Directors or whose nomination for election by the
shareholders of Xxxxxxxx, was approved by a vote of 66-2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of such Board of Directors then in
office; (iii) Xxxxxxxx consolidates with or merges with or into any Person or
conveys, transfers or leases all or substantially all of its assets to
- 6 -
any Person, or any corporation consolidates with or merges into or with
Xxxxxxxx, in any such event pursuant to a transaction in which the outstanding
Voting Stock of Xxxxxxxx is changed into or exchanged for cash, securities or
other property, other than any such transaction where the outstanding Voting
Stock of Xxxxxxxx is not changed or exchanged at all (except to the extent
necessary to reflect a change in the jurisdiction of incorporation of Xxxxxxxx)
or where (A) the outstanding Voting Stock of Xxxxxxxx is changed into or
exchanged for (x) Voting Stock of the surviving corporation which is not
Disqualified Equity Interests or (y) cash, securities and other property (other
than Equity Interests of the surviving corporation) in an amount which could be
paid by Xxxxxxxx as a Restricted Payment under the Parent Preferred (and such
amount shall be treated as a Restricted Payment under the Parent Preferred) and
(B) no "person" or "group" other than Permitted Holders owns immediately after
such transaction, directly or indirectly, more than the greater of (1) 40% of
the total outstanding Voting Stock of the surviving corporation and (2) the
percentage of the outstanding Voting Stock of the surviving corporation owned,
directly or indirectly, by Permitted Holders immediately after such transaction;
or (iv) Xxxxxxxx is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Article 9(c) of the
Articles Supplementary and Article Eight of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the pledge and first priority security interest in
the Parent Preferred and any proceeds thereof granted pursuant to the Pledge
Agreement.
"Collateral Documents" means the Pledge Agreement and any related UCC
financing statements or similar instruments.
"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 issuance of the KDSM Senior Debentures 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 Securities" means the common securities of Xxxxxxxx Capital.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice Chairman, its President or a Vice President (regardless of vice
presidential designation), and by any one of
- 7 -
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP consistently
applied.
"Consolidated Interest Expense" means, for any Person, without
duplication, for any period, the sum of (a) the interest expense of the Company
and its Consolidated Subsidiaries for such period, on a Consolidated basis
(provided that for purposes of this Indenture, the interest expense related to
the KDSM Senior Debentures shall be deemed to be interest expense of the Company
and its Subsidiaries on a Consolidated basis), including, without limitation,
(i) amortization of debt discount, (ii) the net cost under Interest Rate
Agreements (including amortization of discounts), (iii) the interest portion of
any deferred payment obligation and (iv) accrued interest, plus (b) the interest
component of the Capital Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by the Company during such period, and all capitalized interest
of the Company and its Consolidated Subsidiaries, in each case as determined in
accordance with GAAP consistently applied.
"Consolidated Net Income (Loss)" means, for any period, for any
Person, the Consolidated net income (or loss) of such Person and its
Consolidated Subsidiaries for such period as determined in accordance with GAAP
consistently applied, adjusted, to the extent included in calculating such net
income (or loss), by excluding, without duplication, (i) all extraordinary gains
but not losses (less all fees and expenses relating thereto), (ii) the portion
of net income (or loss) of such Person and its Consolidated Subsidiaries
allocable to interests in unconsolidated Persons, except to the extent of the
amount of dividends or distributions actually paid to such Person or its
Consolidated Subsidiaries by such other Person during such period, (iii) net
income (or loss) of any Person combined with such Person or any of its
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iv) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan, (v) net gains but not
losses (less all fees and expenses relating thereto) in respect of disposition
of assets other than in the ordinary course of business, or (vi) the net income
of any Subsidiary to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its shareholders.
"Consolidated Net Worth" of any Person means the Consolidated equity
of the holder of Equity Interests (including Disqualified Equity Interests) of
such Person and its Subsidiaries, as determined in accordance with GAAP
consistently applied.
- 8 -
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at First
Union National Bank of Maryland, 000 Xxxx Xxxx Xxxxxx, 0xx xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxx.
"Cumulative Consolidated Interest Expense" means, as of any date of
determination, Consolidated Interest Expense from the Issue Date to the end of
the Company's most recently ended full fiscal quarter prior to such date, taken
as a single accounting period.
"Cumulative Operating Cash Flow" means, as of any date of
determination, Operating Cash Flow from the Issue Date to the end of the
Company's most recently ended full fiscal quarter prior to such date, taken as a
single accounting period.
"Cumulative Parent Preferred Dividends" means, as of any date of
determination, the amount of dividends under the Parent Preferred from the Issue
Date to the end of the Company's most recently ended full fiscal quarter prior
to such date, taken as a single accounting period.
"Debt to Operating Cash Flow Ratio" means, as of any date of
determination, the ratio of (a) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Subsidiaries as of such date on
a Consolidated basis (provided that for purposes of this Indenture, the KDSM
Senior Debentures shall be deemed to be Indebtedness of the Company and its
Subsidiaries on a Consolidated basis) plus the aggregate liquidation preference
or redemption amount of all Disqualified Equity Interests of the Company
(excluding any such Disqualified Equity Interests held by the Company or a
Wholly Owned Subsidiary of the Company), to (b) Operating Cash Flow of the
Company and its Subsidiaries on a Consolidated basis for the four most recent
full fiscal quarters ending immediately prior to such date, determined on a pro
forma basis (and after giving pro forma effect to (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness were
incurred, and the application of such proceeds had occurred, at the beginning of
such four-quarter period; (ii) the incurrence, repayment or retirement of any
other Indebtedness by the Company and its Subsidiaries since the first day of
such four-quarter period as if such Indebtedness were incurred, repaid or
retired at the beginning of such four-quarter period (except that, in making
such computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average balance of such Indebtedness at the end
of each month during such four-quarter period); (iii) in the case of Acquired
Indebtedness, the related acquisition, as if such acquisition had occurred at
the beginning of such four-quarter period; and (iv) any acquisition or
disposition by the Company and its Subsidiaries of any company or any business
or any assets out of the ordinary course of business, or any related repayment
of Indebtedness, in each case since the first day of such
- 9 -
four-quarter period, assuming such acquisition or disposition had been
consummated on the first day of such four-quarter period).
"Default" means any event which is, or after notice or passage of any
time or both would be, an Event of Default.
"Depositary" means, with respect to the KDSM Senior Debentures issued
in the form of Global Securities, if any, The Depository Trust Company, a New
York limited purpose corporation, its nominees and successors, or any other
Person designated as the Depositary by the Company pursuant to Section 305(b),
in each case registered as a "clearing agency" under the Exchange Act and
maintaining a book-entry system that qualifies for treatment as "registered
form" under Section 163(f) of the Code.
"Designated Xxxxxxxx Senior Indebtedness" means (i) all Xxxxxxxx
Senior Indebtedness Outstanding under the Bank Credit Agreement and (ii) any
other Xxxxxxxx Senior Indebtedness which is incurred pursuant to an agreement
(or series of related agreements simultaneously entered into) providing for
indebtedness, or commitments to lend, of at least $25,000,000 at the time of
determination and is specifically designated in the instrument evidencing such
Xxxxxxxx Senior Indebtedness or the agreement under which such Xxxxxxxx Senior
Indebtedness arises as "Designated Xxxxxxxx Senior Indebtedness" by Xxxxxxxx.
"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 KDSM Senior Debentures 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.
"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" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the exchange offer by the Company of Series B
KDSM Senior Debentures for Series A KDSM Senior Debentures to be effected
pursuant to Section 2.1 of the Registration Rights Agreement.
- 10 -
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2.1 of the
Registration Rights Agreement.
"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, the Guarantors (as defined therein) and the
United States Trust Company of New York as amended.
"Existing Notes" means, collectively the 1993 Notes and the 1995
Notes. "Expense Agreement" means the Agreement, dated as of March 12, 1997,
entered into by the Company to pay all of the expenses of the Trust.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Film Contract" means contracts with suppliers that convey the right
to broadcast specified films, videotape motion pictures, syndicated television
programs or sports or other programming.
"Founders' Notes" means the term notes, dated September 30, 1990, as
amended, made by Xxxxxxxx to Xxxxxx X. Xxxxx and to Xxxxxxx X. Xxxxx pursuant to
a stock redemption agreement, dated June 19, 1990, among Xxxxxxxx, certain of
its Subsidiaries, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxxxx
X. Xxxxx, J. Xxxxxx Xxxxx and Xxxxxx X. Xxxxx.
"GAAP" means generally accepted accounting principles in the United
States, consistently applied, which are in effect on the date the 1993 Notes
were issued.
"Global Security" means a KDSM Senior Debenture in book-entry form in
the form prescribed in Sections 202 through 205 evidencing all or part of the
KDSM Senior Debentures, issued to the Depositary or its nominee and registered
in the name of the Depositary or such nominee.
"Guarantee" means the guarantee by any Person of the Indenture
Obligations pursuant to a guarantee given in accordance with this Indenture,
including, without limitation, the guarantee by Xxxxxxxx which may become
effective pursuant to the provisions of Article Thirteen of this Indenture and
any guarantee delivered pursuant to Section 1010.
"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
- 11 -
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.
"Holder" means a Person in whose name a KDSM Senior Debenture is
registered in the Security Register.
"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 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;
provided, however, that the term Indebtedness shall not include any obligations
of the Company and its Subsidiaries with respect to Film Contracts entered into
in the ordinary course of business. The amount of Indebtedness of any Person at
any date shall be, without duplication, the principal amount
- 12 -
that would be shown on a balance sheet of such Person prepared as of such date
in accordance with GAAP and the maximum determinable liability of any Guaranteed
Debt referred to in clause (vii) above at such date. For purposes hereof, the
"maximum fixed repurchase price" of any Disqualified Equity Interests which do
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Equity Interests as if such Disqualified Equity
Interests were purchased on any date on which Indebtedness shall be required to
be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Disqualified Equity Interests, such
Fair Market Value to be determined in good faith by the Board of Directors of
the issuer of such Disqualified Equity Interests.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the KDSM Senior Debentures
(including, in accordance with the terms and conditions of the Guarantee, if the
Guarantee is then effective, Xxxxxxxx), to pay principal, premium, if any, and
interest when due and payable, and all other amounts due or to become due under
or in connection with the KDSM Senior Debentures or this Indenture and the
performance of all other obligations to the Trustee and the Holders under the
KDSM Senior Debentures or this Indenture according to the terms hereof and
thereof.
"Independent Director" means a director of the Company other than a
director (i) who (apart from being a director of the Company or any Subsidiary
thereof) is an employee, insider, associate or Affiliate of the Company or a
Subsidiary or has held any such position during the previous five years or (ii)
who is a director, an employee, insider, associate or Affiliate of another party
to the transaction in question.
"Initial Purchasers" shall mean Xxxxx Xxxxxx Inc. and Chase Securities
Inc. as initial purchasers of the Preferred Securities.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the KDSM Senior Debentures.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into with 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.
"Investment Company Act Event" means the receipt by Xxxxxxxx Capital
or the Company of an opinion of nationally recognized independent counsel
experienced in the practice of law 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"), Xxxxxxxx Capital or
the Company is or will be considered an "investment company" which is required
to be
- 13 -
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, 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.
"Issue Date" means March 12, 1997.
"Junior Securities" means any securities of the Company that are
junior in right of payment to the KDSM Senior Debentures.
"KDSM Senior Debentures" or "KDSM Senior Debenture" means any debt
securities or debt security, as the case may be, authenticated and delivered
under this Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation 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.
"Liquidation Value" means, with respect to the Preferred Securities, a
liquidation preference of $100 plus accrued and unpaid distributions thereon,
whether or not earned or declared, to the date of payment, subject to certain
limitations set forth in the Trust Agreement.
"Maturity Date" means the date on which the principal of such KDSM
Senior Debenture becomes due and payable as provided in the KDSM Senior
Debentures or as provided in this Indenture.
"Minority Note" means the promissory note, dated December 26, 1986,
made by Xxxxxxxx to Xxxxxxxxx X. Xxxxx, B. Xxxxxxx Xxxxxxx and Xxxxxx X.
Xxxxxxxx, as representatives, pursuant to a stock purchase agreement, dated
December 22, 1986, among Xxxxxxxx, Commercial Radio Institute, Inc., Chesapeake
Television, Inc. and certain individuals.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
rating agency.
"1993 Notes" means Xxxxxxxx'x 10% Senior Subordinated Notes due 2003.
- 14 -
"1995 Notes" means Xxxxxxxx'x 10% Senior Subordinated Notes due 2005.
"Non-payment Default" means any event (other than a Payment Default)
the occurrence of which entitles one or more Persons to accelerate maturity of
any Designated Xxxxxxxx Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, the President or a Vice President (regardless of vice
presidential designation), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company or Xxxxxxxx, as the case may
be, and delivered to the Trustee.
"Operating Cash Flow" means, for any Person, for any period, the
Consolidated Net Income of such Person and its Subsidiaries for such period,
plus (a) extraordinary net losses and net losses on sales of assets outside the
ordinary course of business during such period, to the extent such losses were
deducted in computing Consolidated Net Income, plus (b) provision for taxes
based on income or profits, to the extent such provision for taxes was included
in computing such Consolidated Net Income, and any provision for taxes utilized
in computing the net losses under clause (a) hereof, plus (c) Consolidated
Interest Expense of such Person and its Subsidiaries for such period, plus (d)
depreciation, amortization and all other non-cash charges, to the extent such
depreciation, amortization and other non-cash charges were deducted in computing
such Consolidated Net Income (including amortization of goodwill and other
intangibles, including Film Contracts and write-downs of Film Contracts, minus
(e) any cash payments contractually required to be made with respect to Film
Contracts (to the extent not previously included in computing such Consolidated
Net Income).
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, Xxxxxxxx or the Trustee, unless an Opinion of
Independent Counsel is required pursuant to the terms of this Indenture, and who
shall be acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of counsel
issued by someone who is not an employee or consultant of the Company or
Xxxxxxxx and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to KDSM Senior Debentures, means
as of the date of determination, all KDSM Senior Debentures theretofore
authenticated and delivered under this Indenture, except:
(a) KDSM Senior Debentures theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;(b) KDSM Senior Debentures, or
portions thereof, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company or any Affiliate thereof) in trust or set aside and segregated in
trust by the Company or such Affiliate (if the Company or such Affiliate shall
act as the Paying Agent) for the Holders; provided that if such KDSM Senior
- 15 -
Debentures are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made; (c) KDSM Senior Debentures, except to the extent provided
in Sections 402 and 403 of this Indenture, with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article Four; and(d)
KDSM Senior Debentures in exchange for or in lieu of which other KDSM Senior
Debentures have been authenticated and delivered pursuant to this Indenture,
other than any such KDSM Senior Debentures in respect of which there shall have
been presented to the Trustee proof reasonably satisfactory to it that such KDSM
Senior Debentures are held by a bona fide purchaser in whose hands the KDSM
Senior Debentures are valid obligations of the Company; provided, however, that
in determining whether the Holders of the requisite principal amount of
Outstanding KDSM Senior Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, KDSM Senior
Debentures owned by the Company, Xxxxxxxx, or any other obligor upon the KDSM
Senior Debentures or any Affiliate of the Company, Xxxxxxxx, or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only KDSM
Senior Debentures which the Trustee knows to be so owned shall be so
disregarded. KDSM Senior Debentures so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
reasonable satisfaction of the Trustee the pledgee's right so to act with
respect to such KDSM Senior Debentures and that the pledgee is not the Company,
Xxxxxxxx or any other obligor upon the KDSM Senior Debentures or any Affiliate
of the Company, Xxxxxxxx or such other obligor."Parent Preferred" means the
Series C Preferred Stock, Liquidation Amount $100 per share, of Xxxxxxxx
initially issued on the date of this Indenture.
"Parent Preferred Extension Period" means any period for which
Xxxxxxxx exercises its right, pursuant to the terms of the Parent Preferred, to
extend the dividend payment period for the Parent Preferred from time to time
for up to three consecutive quarters, during which periods dividends thereunder
will compound quarterly and Xxxxxxxx shall have the right to make partial
payments of dividends on any dividend payment date; provided that Xxxxxxxx shall
be required to pay all dividends due and payable on the Parent Preferred at
least once every four quarters and must pay all dividends due and owing on the
date of maturity of the Parent Preferred.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any KDSM Senior Debentures on
behalf of the Company.
"Payment Default" means any default in payment of principal of,
premium, if any, or interest, on any Designated Xxxxxxxx Senior Indebtedness.
- 16 -
"Permitted Holders" means as of the date of determination: (i) any of
Xxxxx X. Xxxxx, Xxxxxxxxx X. Xxxxx, J. Xxxxxx Xxxxx and Xxxxxx X. Xxxxx; (ii)
family members or the relatives of the Persons described in clause (i) above;
(iii) in the event of the incompetence or death of any of the Persons described
in clauses (i) and (ii) above, such Person's estate, executor, administrator,
committee or other personal representative or beneficiaries; or (iv) any trusts
created for the benefit of the Persons described in clause (i), (ii) or (iii)
above or any trust for the benefit of any such trust, who, in each case at any
particular date shall beneficially own or have the right to acquire, directly or
indirectly, Equity Interests of Xxxxxxxx.
"Permitted Investment" means: (i) any Investments in any Subsidiary,
(ii) Temporary Cash Investments, (iii) Investments in existence on the date the
KDSM Senior Debentures are issued, (iv) loans up to an aggregate of $100,000
outstanding at any one time to employees pursuant to benefits available to the
employees of the Company and its Subsidiaries from time to time in the ordinary
course, (v) any Investment in the Parent Preferred or the Common Securities,
(vi) any guarantee of Indebtedness incurred in accordance with this Indenture
and (vii) investments by the Company or any Subsidiary in any Person if as a
result of such Investment (I) such Person becomes a Subsidiary or (II) such
Person is merged, consolidated with or into, or transfers or conveys
substantially all of its assets to or is liquidated into the Company or any of
its Subsidiaries.
"Permitted Xxxxxxxx Xxxxxx Securities" means (so long as the effect of
any exclusion employing this definition is not to cause the Guarantee to be
treated in any case or proceeding or similar event described in clause (a), (b)
or (c) of Section 1316 as part of the same class of claims as Xxxxxxxx Senior
Indebtedness or any class of claims pari passu with, or senior to, Xxxxxxxx
Senior Indebtedness) for any payment or distribution, debt or equity securities
of Xxxxxxxx or any successor corporation provided for by a plan of
reorganization or readjustment that are subordinated at least to the same extent
that the Guarantee is subordinated to the payment of all Xxxxxxxx Senior
Indebtedness then outstanding; provided that (1) if a new corporation results
from such reorganization or readjustment, such corporation assumes Xxxxxxxx
Senior Indebtedness not paid in full in cash or Cash Equivalents in connection
with such reorganization or readjustment and (2) the rights of the holders of
such Xxxxxxxx Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Pledge Agreement" means the Pledge and Security Agreement, dated as
of March 12, 1997, among the Company and First Union National Bank of Maryland
as collateral agent providing for a pledge and first priority security interest
in the Parent Preferred.
- 17 -
"Predecessor Securities" of any particular KDSM Senior Debenture means
every previous security issued before, and evidencing all or a portion of the
same debt as that evidenced by, such particular KDSM Senior Debenture. For the
purposes of this definition, any KDSM Senior Debenture authenticated and
delivered under Section 308 in lieu of a mutilated, destroyed, lost or stolen
KDSM Senior Debenture shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen KDSM Senior Debenture.
"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.
"Property Trustee" means the Person named as the "Property Trustee" in
the first paragraph of this instrument, solely in its capacity as Property
Trustee of Xxxxxxxx Capital under the Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as provided in the Trust Agreement.
"Prospectus" means the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Series A KDSM Senior Debentures covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein.
"Public Equity Offering" means, with respect to any Person, an
underwritten public offering by such Person of some or all of its Equity
Interests (other than Disqualified Equity Interests), the net proceeds of which
(after deducting any underwriting discounts and commissions) exceed $10,000,000.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company and additions and accessions
thereto, which are purchased by the Company or any Subsidiary thereof at any
time after the KDSM Senior Debentures are issued, provided that: (i) the
security agreement or condition sales or other title retention contract pursuant
to which the Lien on such assets is created (collectively a "Purchase Money
Security Agreement") shall be entered into within 90 days after the purchase or
substantial completion of the construction of such assets and shall at all times
be confined solely to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom, (ii) at no time shall the
aggregate principal amount of the outstanding Indebtedness secured thereby be
increased, except in connection with the purchase of additions and accessions
thereto and except in respect of fees and other
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obligations in respect of such Indebtedness, and (iii) either (A) the aggregate
outstanding principal amount of Indebtedness secured thereby (determined on a
per asset basis in the case of any additions and accessions) shall not at the
time such Purchase Money Security Agreement is entered into exceed 100% of the
purchase price to the Company of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely to the assets so
purchased or acquired, any additions and accessions thereto and any proceeds
therefrom.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"Redemption Date", when used with respect to any KDSM Senior Debenture
to be redeemed pursuant to any provision in this Indenture, means the date fixed
for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any KDSM Senior
Debenture to be redeemed pursuant to any provision in this Indenture, means the
price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 12, 1997, among Xxxxxxxx, the Company, Xxxxxxxx
Capital and the Initial Purchasers.
"Registration Statement" means any registration statement of the
Company which covers any of the Series A KDSM Senior Debentures or Series B KDSM
Senior Debentures pursuant to the provisions of the Registration Rights
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Regular Record Date" or "Record Date" for the interest payable on any
Interest Payment Date means the March 1, June 1, September 1 and December 1
(whether or not a Business Day) next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
any officer assigned to the Corporate Trust Office or the agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary, or any other officer or assistant officer of the Trustee or
the agent of the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
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"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of KDSM Senior Debenture set forth in
Section 202 to be placed upon a Restricted Security.
"Restricted Securities Transfer Certificate" means a certificate
substantially in the form set forth in Exhibit A.
"Restricted Security" means each KDSM Senior Debenture required
pursuant to Section 306 to bear a Restricted Securities Legend.
"Rule 144A Information" shall be such information with respect to the
Company and Xxxxxxxx as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which any Person sells or transfers any
property or asset in connection with the leasing, or the resale against
installment payments, of such property or asset to the seller or transferor.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to Section 2.2 of the Registration Rights Agreement,
which covers all or a portion of the Registrable Securities (as defined in the
Registration Rights Agreement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Significant Subsidiary" means any Subsidiary of a Person that would
be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the date hereof.
"Xxxxxxxx" means the Person named as "Xxxxxxxx" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Xxxxxxxx" shall
mean such successor Person.
- 20 -
"Xxxxxxxx Capital" or the "Trust" means Xxxxxxxx Capital, a Delaware
business trust formed pursuant to the Trust Agreement.
"Xxxxxxxx Senior Indebtedness" means the principal of, premium, if
any, and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy laws
whether or not allowable as a claim in such proceeding) on any Indebtedness of
Xxxxxxxx (other than as otherwise provided in this definition), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, and whether at any time owing, actually or contingent, unless, in the
case of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Guarantee. Without
limiting the generality of the foregoing, "Xxxxxxxx Senior Indebtedness" shall
include (i) the principal of, premium, if any, and interest (including interest
accruing after the filing of a petition initiating any proceeding under any
state, federal or foreign bankruptcy laws whether or not allowable as a claim in
such proceeding) and all other obligations of every nature of Xxxxxxxx from time
to time owed to the lenders (or their agent) under the Bank Credit Agreement;
provided, however, that any Indebtedness under any refinancing, refunding or
replacement of the Bank Credit Agreement shall not constitute Xxxxxxxx Senior
Indebtedness to the extent that the Indebtedness thereunder is by its express
terms subordinate to any other Indebtedness of Xxxxxxxx; (ii) Indebtedness
outstanding under the Founders' Notes, (iii) Indebtedness outstanding under the
Existing Notes and (iv) Indebtedness under Interest Rate Agreements.
Notwithstanding the foregoing, "Xxxxxxxx Senior Indebtedness" shall not include
(i) Indebtedness evidenced by the KDSM Senior Debentures, (ii) Indebtedness
which when incurred and without respect to any election under Section 1111(b) of
Title 11 of the United States Code, is without recourse to Xxxxxxxx, (iii)
Indebtedness which is represented by Disqualified Equity Interests, (iv) any
liability for foreign, federal, state, local or other taxes owed or owing by
Xxxxxxxx to the extent such liability constitutes Indebtedness, (v) Indebtedness
of Xxxxxxxx to the extent such liability constitutes Indebtedness to a
Subsidiary or any other Affiliate of the Company or any of such Affiliate's
subsidiaries, (vi) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture, (vii) Indebtedness owed by
Xxxxxxxx for compensation to employees or for services and (viii) Indebtedness
outstanding under the Minority Note.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity", when used with respect to the KDSM Senior
Debentures or interest thereon, means the date specified pursuant to the terms
of the KDSM Senior Debentures as the fixed date on which the principal or
interest, as applicable, is due and payable, and, in the case of any installment
of interest, subject to the deferral of any such date in the case of any
Extension Period. When used with respect to any other Indebtedness or any
installment of interest thereon, means the date specified in such Indebtedness
as the
- 21 -
fixed date on which the principal of such Indebtedness or such installment of
interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or
Xxxxxxxx subordinated in right of payment to the KDSM Senior Debentures or the
Guarantees, as the case may be.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, such
Person or by one or more other Subsidiaries, or by such Person and one or more
other Subsidiaries.
"Successor Security" of any particular KDSM Senior Debenture means
every KDSM Senior Debenture issued after, and evidencing all or a portion of the
same debt as that evidenced by, such particular KDSM Senior Debenture. For the
purposes of this definition, any KDSM Senior Debenture authenticated and
delivered under Section 308 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen KDSM Senior Debenture shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen KDSM Senior Debenture.
"Tax Event" means the receipt by Xxxxxxxx Capital or the Company of an
Opinion of Independent 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, (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 therefore 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
first date of issuance of the Preferred Securities, there is more than an
insubstantial risk that (a) Xxxxxxxx Capital is, or will be, subject to United
States federal income tax with respect to interest received on the KDSM Senior
Debentures, (b) interest payable by the Company on the KDSM Senior Debentures is
not, or will not be, fully deductible for United States federal income tax
purposes, or (c) Xxxxxxxx Capital is, or will be, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or
- 22 -
an instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (ii) any
certificate of deposit, maturing not more than one year after the date of
acquisition, issued by, or time deposit of, a commercial banking institution
(including the Trustee) that is a member of the Federal Reserve System and that
has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S&P, (iii) commercial paper, maturing not more than one year after
the date of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of Xxxxxxxx) organized and existing under the laws of the United
States of America with a rating, at the time as of which any investment therein
is made, of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S&P and (iv) any money market deposit accounts issued or offered by
a domestic commercial bank (including the Trustee) having capital and surplus in
excess of $500,000,000.
"Trust" or "Xxxxxxxx Capital" means Xxxxxxxx Capital, a Delaware
business trust formed pursuant to the Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, solely in its capacity as such and not in its
individual capacity, until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
"Voting Rights Triggering Event" shall have the meaning given to such
term in the Parent Preferred.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
a corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary all the Equity Interest
of which is owned by the Company or another Wholly Owned Subsidiary.
Section 102. Other Definitions.
Defined in
Term Section
---- -----------
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"Act" 105
"Change of Control Offer" 1016
"Change of Control Purchase Date" 1016
"Change of Control Purchase Notice" 1016
"Change of Control Purchase Price" 1016
"covenant defeasance" 403
"Defaulted Interest" 309
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Extension Period" 202
"Guarantor" Preamble
"Indenture" Preamble
"Initial Brokerage Period" 1317
"Initial Securities" Recitals
"Liquidation Distribution" 201
"Parent Guarantee" Recitals
"Payment Blockage Period" 1317
"Penalty Interest" 202
"Physical Securities" 305
"Preferred Securities" Recitals
"Prescribed Time Periods" 202
"Restricted Payments" 1008
"Required Filing Date" 1015
"Senior Representative" 1317
"Series A KDSM Senior Debentures" Recitals
"Series B KDSM Senior Debentures" Recitals
"Xxxxxxxx Senior Representative" 1323
"Trust Agreement" Recitals
"U.S. Government Obligations" 404
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company, Xxxxxxxx (if the
Guarantee is effective) and any other obligor on the KDSM Senior Debentures
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this
- 24 -
Indenture (including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.Every certificate or Opinion of Counsel
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.Any
certificate or opinion of an officer of the Company, Xxxxxxxx or other obligor
of the KDSM Senior Debentures may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company, Xxxxxxxx or other obligor of the KDSM
Senior Debentures stating that the information with respect to such factual
matters is in the possession of the Company, Xxxxxxxx or other obligor of the
KDSM Senior Debentures, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous. Opinions
of Counsel required to be delivered to the Trustee may have qualifications
customary for opinions of the type required and counsel delivering such Opinions
of Counsel may rely on certificates of the Company or government or other
officials customary for opinions of the type required, including certificates
certifying as to matters of fact, including that various
- 25 -
financial covenants have been complied with.Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders 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
Indenture, if made in the manner provided in this Section. The fact and date of
the execution by any person of any such instrument or writing or the authority
of the person executing the same, may also be proved in any other manner which
the Trustee deems sufficient in accordance with such reasonable rules as the
Trustee may determine.
- 26 -
(b) The ownership of KDSM Senior Debentures shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any KDSM Senior Debenture shall bind
every future Holder of the same KDSM Senior Debenture or the Holder of every
KDSM Senior Debenture issued upon the transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, suffered or omitted to be done
by the Trustee, any Paying Agent or the Company or Xxxxxxxx in reliance thereon,
whether or not notation of such action is made upon such KDSM Senior Debenture.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such solicitation is completed.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf of
the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Trustee shall have no obligation to do so. Any such record date shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than a date such solicitation is completed.If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for purposes of determining whether Holders
of the requisite proportion of KDSM Senior Debentures then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the KDSM
Senior Debentures then Outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 106. Notices, etc., to Trustee, the Company and Xxxxxxxx.
- 27 -
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or Xxxxxxxx or any
other obligor of the KDSM Senior Debentures shall be sufficient for every
purpose hereunder if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to or with the Trustee at the
Corporate Trust Office, Attention: Corporate Trust Division, or at any other
address previously furnished in writing to the Holders, the Company, Xxxxxxxx,
any other obligor of the KDSM Senior Debentures or a Xxxxxxxx Senior
Representative or holder of Xxxxxxxx Senior Indebtedness by the Trustee; or
(b) the Company or Xxxxxxxx shall be sufficient for every purpose
(except as provided in Section 501(d)) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company addressed to it at KDSM, Inc. c/x Xxxxxxxx Broadcast Group, Inc.,
0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: President, or at
any other address previously furnished in writing to the Trustee by the Company
and to Xxxxxxxx at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
President, or at any other address previously furnished in writing to the
Trustee by Xxxxxxxx, with a copy to Xxxxxx & Xxxxxxxx, P.A., 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., and a
copy to Xxxxxx, Xxxxxx & Xxxxxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention:
Xxxx X. Xxxxxxx, Esq.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such xxxxxx.Xx case by reason of the
suspension of regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event as required by any provision of this
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Indenture, then any method of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 108. Conflict with Trust Indenture Act.
Except as otherwise expressly provided herein, whether or not the
Trust Indenture Act shall apply as a matter of law, the Trust Indenture Act
shall apply as a matter of contract to this Indenture for purposes of
interpretation, construction and defining the rights and obligations hereunder,
and this Indenture, the Company, Xxxxxxxx and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were qualified under that
Act on the date hereof. Except as otherwise provided herein, if and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
Xxxxxxxx shall bind their successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the KDSM Senior
Debentures 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 112. Benefits of Indenture.
Nothing in this Indenture, the KDSM Senior Debentures or the
Guarantees, express or implied, shall give to any Person, other than the parties
hereto and their successors and assigns, the holders of Xxxxxxxx Senior
Indebtedness, the Holders of the KDSM Senior Debentures and the Guarantees
endorsed thereon and, to the extent expressly provided in Sections 501, 502,
508, 509, 511, 513, 901 and 902, the holders of Preferred Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
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THIS INDENTURE AND THE KDSM SENIOR DEBENTURES AND HE GUARANTEE, IF
EFFECTIVE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF).
Section 114. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any KDSM Senior Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the KDSM Senior
Debentures) payment of principal, premium, if any, or interest need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date or
at the Stated Maturity and no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to the next succeeding Business Day.
Section 115. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this reference made
a part hereof with the same effect as if herein set forth in full.
Section 116. Counterparts.
This Indenture 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.
ARTICLE TWO
KDSM SENIOR DEBENTURE FORMS
Section 201. Forms Generally.
The KDSM Senior Debentures and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange,
any organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such KDSM Senior
Debentures, as evidenced by their execution of the KDSM Senior Debentures. Any
portion of the text of any KDSM Senior Debenture may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the KDSM Senior
Debenture.The definitive
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KDSM Senior Debentures shall be printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the KDSM Senior
Debentures may be listed, all as determined by the officers executing such KDSM
Senior Debentures, as evidenced by their execution of such KDSM Senior
Debentures.The KDSM Senior Debentures shall be initially issued to Xxxxxxxx
Capital by the Company in certificated form substantially as set forth in
Section 202 until such time, if any, as the KDSM Senior Debentures are
distributed to Holders of the Preferred Securities and the Common Securities in
connection with a dissolution and liquidation of the Trust pursuant to Section
9.04(a) of the Trust Agreement (the "Liquidation Distribution") or for any other
reason. Upon a Liquidation Distribution, if any QIBs hold the KDSM Senior
Debentures, beneficial interests in a Global Security shall be (to the extent
permitted by the Depository) transferred to the Holders of the Preferred
Securities upon exchange of the certificated KDSM Senior Debentures pursuant to
the Applicable Procedures and pursuant to Sections 305, 306 and 307.The terms
and provisions contained in the form of KDSM Senior Debentures set forth in
Sections 202 through 205 shall constitute, and are expressly made, a part of
this Indenture and, to the extent applicable, the Company, Xxxxxxxx and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Section 202. Form of Face of KDSM Senior Debenture.
(a) The form of the face of any Series A KDSM Senior Debentures
authenticated and delivered hereunder shall be substantially as follows:
Unless and until (i) an Initial KDSM Senior Debenture is sold under an
effective Registration Statement or (ii) a Series A KDSM Senior Debenture is
exchanged for a Series B KDSM Senior Debenture in connection with an effective
Registration Statement, in each case pursuant to the Registration Rights
Agreement, then each Restricted Security shall bear the legend set forth below
(the "Restricted Securities Legend") on the face thereof:
KDSM, INC.
11 5/8% Senior Debentures Due 2009, Series A
[IF THE SECURITY IS A RESTRICTED 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"),
- 31 -
(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 TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE 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.
No. _____________ $________
CUSIP No. ___________
KDSM, INC., a corporation duly organized and existing under the laws of the
State of Maryland (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________, or registered assigns, the
principal sum of ________ UNITED STATES DOLLARS ($________) on March 15, 2009
and to pay interest on said principal sum from March 12, 1997 or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 15, June 15, September 15, and
December 15 of each year, commencing June 15, 1997, at the rate of 11 5/8% per
annum plus Additional Interest and Penalty Interest, if any, until the principal
hereof shall have become due and payable, and at a rate of 11 5/8% per annum, on
any overdue principal or interest (including Additional Interest Attributable to
Deferral and Penalty Interest). The amount of interest payable for any period
will be computed on the basis of twelve 30-day months and a 360-day year. In the
event that any date on which interest is payable on this KDSM Senior Debenture
is not a Business Day, then a payment of the interest payable on such date will
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, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than (x) a Saturday or a
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Sunday, (y) a day on which banking institutions in Maryland or The City of New
York are authorized or obligated by law or executive order to close or (z) a day
on which the Corporate Trust Office or the principal corporate trust office of
the Property Trustee is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
KDSM Senior Debenture (or one or more Predecessor Securities, as defined in the
Indenture) is registered at the close of business on the Regular Record Date for
such interest installment, which shall be the March 1, June 1, September 1 and
December 1 next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of KDSM Senior Debentures not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the KDSM
Senior Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Holder of this Series A KDSM Senior Debenture is entitled to the
benefits of the Registration Rights Agreement, dated as of March 5, 1997, among
Xxxxxxxx, the Company, Xxxxxxxx Capital and the Initial Purchasers, pursuant to
which, subject to the terms and conditions thereof, the Company is obligated,
among other things, to consummate the Exchange Offer pursuant to which the
Holder of this KDSM Senior Debenture shall have the right to exchange this KDSM
Senior Debenture for 11 5/8% Senior Debentures due 2009, Series B (herein called
the "Series B KDSM Senior Debentures") in like principal amount as provided
therein. The Series A KDSM Senior Debentures and the Series B KDSM Senior
Debentures are together referred to as the "KDSM Senior Debentures." The Series
A KDSM Senior Debentures rank pari passu in right of payment with the Series B
KDSM Senior Debentures.
Additional interest ("Penalty Interest") will be assessed on the
Series A KDSM Senior Debentures as follows:
(i) (A) if an Exchange Offer Registration Statement (or, in the event
of a change in applicable law or due to current interpretations by the
Commission, the Company is not permitted to effect the Exchange Offer, a Shelf
Registration Statement) is not filed within 60 days following the Closing Date,
(B) in the event that within 30 days after consummation of the Exchange Offer,
any Holder shall notify the Company that such Holder (x) is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
(y) may not resell Exchange Securities acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (z) is a broker-
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dealer and holds KDSM Senior Debentures acquired directly from the Company or an
"affiliate" of the Company or (C) upon the request of an Initial Purchaser, a
Shelf Registration Statement is not filed within 60 days after such request then
commencing on either the 61st day after the Closing Date or the expiration of
either of the time periods set forth in clauses (B) or (C) above (either a
"Prescribed Time Period"), as the case may be, Penalty Interest shall be accrued
on the Series A KDSM Senior Debentures over and above the stated payment rates
thereon at a rate of .50% per annum for the first 90 days immediately following
either the 61st day after the Closing Date or the expiration of the applicable
Prescribed Time Period, as the case may be, such Penalty Interest rate
increasing by an additional .25% per annum at the beginning of each subsequent
90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding full
paragraph and is not declared effective within 120 days following either the
Closing Date or the expiration of the applicable Prescribed Time Period, as the
case may be, then commencing on the 121st day after either the Closing Date or
the expiration of the applicable Prescribed Time Period, as the case may be,
Penalty Interest shall be accrued on the Series A KDSM Senior Debentures over
and above the accrued stated payment rates thereon at a rate of .50% per annum
for the first 90 days immediately following the 121st day after either the
Closing Date or the expiration of the applicable Prescribed Time Period, as the
case may be, such Penalty Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period; and
(iii) if either (A) the Company has not exchanged the Exchange
Securities (as defined in the Registration Rights Agreement) for all of the
Series A KDSM Senior Debentures validly tendered in accordance with the terms of
the Exchange Offer on or prior to 150 days after the Closing Date or the
expiration of the Prescribed Time Period, or (B) if applicable, a Shelf
Registration Statement has been declared effective and such Shelf Registration
Statement ceases to be effective prior to two years from its original effective
date or such shorter period that will terminate when all of the Series A KDSM
Senior Debentures covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, then Penalty Interest shall be
accrued on the Series A KDSM Senior Debentures over and above the stated payment
rates at a rate of .50% per annum for the first 60 days immediately following
the (x) 31st day after such effective date, in the case of (A) above, or (y) the
day such Shelf Registration Statement ceases to be effective in the case of (B)
above, such Penalty Interest rate increasing by an additional .25% per annum at
the beginning of each subsequent 90-day period;
provided, however, that the Penalty Interest rate on the Series A KDSM Senior
Debentures may not exceed 1.5% per annum; and provided, further, that (1) upon
the filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of (i) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
(ii) above), or (3) upon the exchange of Exchange Securities for all Series A
KDSM Senior Debentures tendered in the Exchange Offer or upon
- 34 -
the effectiveness of the Shelf Registration Statement which had ceased to remain
effective prior to two years from its original effective date (in the case of
(iii) above), Penalty Interest as a result of such clause (i), (ii) or (iii)
shall cease to accrue.
Any Penalty Interest due pursuant to clause (i), (ii) or (iii) above
will be payable in cash on the Interest Payment Date related to the Series A
KDSM Senior Debentures. The Penalty Interest will be determined by multiplying
the applicable Penalty Interest rate by the principal amount of the Series A
KDSM Senior Debentures, multiplied by a fraction the numerator of which is the
number of days such Penalty Interest rate was applicable during such period, and
the denominator of which is 360. The Company shall have the right, (i) during
any period when the Company does not receive dividends on the Parent Preferred
held by it due to a Parent Preferred Extension Period, at any time during the
term of this KDSM Senior Debenture, from time to time, to extend the interest
payment period of the KDSM Senior Debentures for up to three consecutive
quarters, and (ii) regardless of whether it receives dividends on the Parent
Preferred, at any time during the term of the KDSM Senior Debentures, to extend
the interest payment period of the KDSM Senior Debentures for one quarterly
period (each, an "Extension Period"), during which Extension Periods interest
will accrue and compound quarterly and the Company shall have the right to make
partial payments of interest on any Interest Payment Date, and at the end of
each Extension Period the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon); provided that: (x) the Company
shall be required to pay all interest, including Additional Interest, due and
payable on the KDSM Senior Debentures at least once every four quarters and must
pay all interest due and owing on the Maturity Date of the KDSM Senior
Debentures; (y) the Company shall not defer the interest payment period with
respect to Additional Interest Attributable to Taxes; and (z) that during any
such Extension Period, the Company shall not declare or pay any dividend or
distribution (other than a dividend or distribution in Capital Stock) on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its outstanding Capital Stock, or make any guarantee payments with respect to
the foregoing or repurchase, or cause any Subsidiaries to repurchase, any
security of the Company ranking pari passu with or subordinate to this KDSM
Senior Debenture. Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period; provided that such
Extension Period together with all such previous and further extensions thereof
shall not exceed three consecutive quarters or extend beyond the Maturity Date
of the KDSM Senior Debentures. Upon the termination of any such Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due, the Company may select a new Extension Period, subject to the
foregoing requirements. Except for Additional Interest Attributable to Taxes, no
interest shall be due and payable during an Extension Period, until the end of
such period. The Company shall issue a press release in a normal commercial
manner which may be joint with the Trust and Xxxxxxxx and shall give the
Trustee, the Property Trustee and the Administrative Trustees notice of its
election of an Extension Period at least ten Business Days prior to the earlier
of (i) the Record Date for interest payments on the KDSM Senior Debentures or
(ii) the date the Administrative Trustees are
- 35 -
required to give notice to any applicable self-regulatory organization or
security exchange or to holders of the Preferred Securities on the Record Date
or the date such distributions are payable. If the Property Trustee is the sole
Holder of the KDSM Senior Debentures, the Trustee shall promptly notify the
holders of the Preferred Securities of the Company's election of such an
Extension Period. If the Property Trustee ceases to be the sole Holder of the
KDSM Senior Debentures, the Company shall give the Holders of the KDSM Senior
Debentures notice of its election of such Extension Period.
Payment of the principal of, premium, if any, and interest on this
KDSM Senior Debenture will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds to an account
specified (not later than one Business Day prior to the applicable Payment Date)
by the Holder hereof. If any of the KDSM Senior Debentures are held by the
Depository, payments of interest to the Depository may be made by wire transfer
to the Depository.
This KDSM Senior Debenture may in certain circumstances be entitled to
the benefits of a Guarantee (on a junior subordinated basis) by Xxxxxxxx of the
punctual payment when due of the Indenture Obligations made in favor of the
Trustee for the benefit of the Holders, subject to the terms and conditions set
forth in such Guarantee and in the Indenture. Reference is hereby made to
Article Thirteen of the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations under the Guarantee which may be
effective under certain circumstances but which is not effective on the date of
this Indenture.
As provided in the Indenture, the obligations of the Company under the
KDSM Senior Debentures and the Indenture are secured by a Lien on the Collateral
granted in favor of Trustee for the benefit and on behalf of the Holders. The
rights of the Trustee in and to the Collateral are governed by the terms of the
Indenture.
All references in this Series A KDSM Senior Debenture or in the
Indenture to accrued and unpaid interest shall be deemed to include, to the
extent applicable, a reference to Penalty Interest and Additional Amounts.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature, this KDSM Senior
Debenture shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
Dated: KDSM, INC.
By:_________________________________
Attest:
_____________________________
Secretary
(b) The form of the face of any Series B KDSM Senior Debentures
authenticated and delivered hereunder shall be substantially as follows:
KDSM, INC.
11 5/8% Senior Debentures Due 2009, Series B
No. _____________ $________
CUSIP No. ___________
KDSM, INC., a corporation duly organized and existing under the laws
of the State of Maryland (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________, or registered assigns, the
principal sum of ________ UNITED STATES DOLLARS ($________) on March 15, 2009
and to pay interest on said principal sum from March 12, 1997 or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 15, June 15, September 15, and
December 15 of each year, commencing June 15, 1997, at the rate of 11 5/8% per
annum plus Additional Interest and Penalty Interest, if any, until the principal
hereof shall have become due and payable, and at a rate of 11 5/8% per annum, on
any overdue principal or interest (including Additional Interest Attributable to
Deferral and Penalty Interest). The amount of interest payable for any period
will be computed on the basis of twelve 30-day months and a 360-day year. In the
event that any date on which interest is payable on this KDSM Senior Debenture
is not a Business Day, then a payment of the interest payable on such date will
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, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than (x) a Saturday or a Sunday, (y) a day on
which banking institutions in Maryland or The City of New York are authorized or
obligated by law or executive order to close or (z) a day on which the
- 37 -
Corporate Trust Office or the principal corporate trust office of the Property
Trustee is closed for business. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this KDSM Senior
Debenture (or one or more Predecessor Securities, as defined in the Indenture)
is registered at the close of business on the Regular Record Date for such
interest installment, which, shall be the March 1, June 1, September 1, and
December 1 as the next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of KDSM Senior Debentures not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the KDSM
Senior Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
This Series B KDSM Senior Debenture was issued pursuant to the
Exchange Offer pursuant to which the 11 5/8% Senior Debentures due 2009, Series
A (herein called the "Series A KDSM Senior Debentures") in like principal amount
were exchanged for the Series B KDSM Senior Debentures. The Series B KDSM Senior
Debentures rank pari passu in right of payment with the Series A KDSM Senior
Debentures.
In addition, pursuant to a Registration Rights Agreement, for any
period in which the Series A Security exchanged for this Series B KDSM Senior
Debenture was outstanding, (i) (A) if an Exchange Offer Registration Statement
(or, in the event of a change in applicable law or due to current
interpretations by the Commission, the Company is not permitted to effect the
Exchange Offer, a Shelf Registration Statement) is not filed within 60 days
following the Closing Date, (B) in the event that within 30 days after
consummation of the Exchange Offer, any Holder shall notify the Company that
such Holder (x) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, (y) may not resell Exchange Securities
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (z)
is a broker-dealer and holds KDSM Senior Debentures acquired directly from the
Company or an "affiliate" of the Company or (C) upon the request of an Initial
Purchaser, a Shelf Registration Statement is not filed within 60 days after such
request then commencing on either the 61st day after the Closing Date or the
expiration of either of the time periods set forth in clauses (B) or (C) above
(either a "Prescribed Time Period"), as the case may be, Penalty Interest shall
be accrued on the Series A KDSM Senior Debentures over and above the stated
payment rates thereon at a rate of .50% per annum for the first 90 days
immediately following either the 61st day after the Closing Date or the
expiration of the
- 38 -
applicable Prescribed Time Period, as the case may be, such Penalty Interest
rate increasing by an additional .25% per annum at the beginning of each
subsequent 90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding full
paragraph and is not declared effective within 120 days following either the
Closing Date or the expiration of the applicable Prescribed Time Period, as the
case may be, then commencing on the 121st day after either the Closing Date or
the expiration of the applicable Prescribed Time Period, as the case may be,
Penalty Interest shall be accrued on the Series A KDSM Senior Debentures over
and above the accrued stated payment rates thereon at a rate of .50% per annum
for the first 90 days immediately following the 121st day after either the
Closing Date or the expiration of the applicable Prescribed Time Period, as the
case may be, such Penalty Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period; and
(iii) if either (A) the Company has not exchanged the Exchange
Securities (as defined in the Registration Rights Agreement) for all of the KDSM
Senior Debentures validly tendered in accordance with the terms of the Exchange
Offer on or prior to 150 days after the Closing Date or the expiration of the
Prescribed Time Period or (B) if applicable, a Shelf Registration Statement has
been declared effective and such Shelf Registration Statement ceases to be
effective prior to two years from its original effective date or such shorter
period that will terminate when all of the Series A KDSM Senior Debentures
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, then Penalty Interest shall be accrued on the Series A
KDSM Senior Debentures over and above the stated payment rates at a rate of .50%
per annum for the first 60 days immediately following the (x) 31st day after
such effective date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B) above, such
Penalty Interest rate increasing by an additional .25% per annum at the
beginning of each subsequent 90-day period;
provided, however, that the Penalty Interest rate on the Series A KDSM Senior
Debentures may not exceed 1.5% per annum; and provided, further, that (1) upon
the filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of (i) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
(ii) above) or (3) upon the exchange of Exchange Securities for all Series A
KDSM Senior Debentures tendered in the Exchange Offer or upon the effectiveness
of the Shelf Registration Statement which had ceased to remain effective prior
to two years from its original effective date (in the case of (iii) above),
Penalty Interest as a result of such clause (i), (ii) or (iii) shall cease to
accrue.
Any Penalty Interest due pursuant to clause (i), (ii) or (iii) above
will be payable in cash on the Interest Payment Date related to the Series A
KDSM Senior Debentures. The Penalty Interest will be determined by multiplying
the applicable Penalty Interest rate by the principal amount of the Series A
KDSM Senior Debentures, multiplied by a fraction the
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numerator of which is the number of days such Penalty Interest rate was
applicable during such period, and the denominator of which is 360.
The Company shall have the right, (i) during any period when the
Company does not receive dividends on the Parent Preferred held by it due to a
Parent Preferred Extension Period, at any time during the term of this KDSM
Senior Debenture, from time to time, to extend the interest payment period of
the KDSM Senior Debentures for up to three consecutive quarters, and (ii)
regardless of whether it receives dividends on the Parent Preferred, at any time
during the term of the KDSM Senior Debentures, to extend the interest payment
period of the KDSM Senior Debentures for one quarterly period (each, an
"Extension Period"), during which Extension Periods interest will compound
quarterly and the Company shall have the right to make partial payments of
interest on any Interest Payment Date, and at the end of each Extension Period
the Company shall pay all interest then accrued and unpaid (together with
Additional Interest thereon); provided that: (x) the Company shall be required
to pay all interest, including Additional Interest, due and payable on the KDSM
Senior Debentures at least once every four quarters and must pay all interest
due and owing on the Maturity Date of the KDSM Senior Debentures; (y) the
Company shall not defer the interest payment period with respect to Additional
Interest Attributable to Taxes; and (z) that during any such Extension Period,
the Company shall not declare or pay any dividend or distribution (other than a
dividend or distribution in Capital Stock) on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its outstanding Capital
Stock, or make any guarantee payments with respect to the foregoing or
repurchase, or cause any Subsidiaries to repurchase, any security of the Company
ranking pari passu with or subordinate to this KDSM Senior Debenture. Prior to
the termination of any such Extension Period, the Company may further extend the
interest payment period; provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed three consecutive
quarters or extend beyond the Maturity Date of the KDSM Senior Debentures. Upon
the termination of any such Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may select
a new Extension Period, subject to the foregoing requirements. Except for
Additional Interest Attributable to Taxes, no interest shall be due and payable
during an Extension Period, until the end of such period. The Company shall
issue a press release in a normal commercial manner and shall give the Trustee,
the Property Trustee and the Administrative Trustees notice of its election of
an Extension Period at least ten Business Days prior to the earlier of (i) the
Record Date for interest payments on the KDSM Senior Debentures or (ii) the date
the Administrative Trustees are required to give notice to any applicable
self-regulatory organization or security exchange or to holders of the Preferred
Securities on the Record Date or the date such distributions are payable. If the
Property Trustee is the sole Holder of the KDSM Senior Debentures, the Trustee
shall promptly notify the holders of the Preferred Securities of the Company's
election of such an Extension Period. If the Property Trustee ceases to be the
sole Holder of the KDSM Senior Debentures, the Company shall give the Holders of
the KDSM Senior Debentures notice of its election of such Extension Period.
- 40 -
Payment of the principal of, premium, if any, and interest on this
KDSM Senior Debenture will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds to an account
specified (not later than one Business Day prior to the applicable Payment Date)
by the Holder hereof. If all of the securities are held by the Depository,
payments of interest may be made by wire transfer to the Depository.
This KDSM Senior Debenture may, in certain circumstances, be entitled
to the benefits of a Guarantee (on a junior subordinated basis) by Xxxxxxxx of
the punctual payment when due of the Indenture Obligations made in favor of the
Trustee for the benefit of the Holders, subject to the terms and conditions set
forth in such Guarantee and in the Indenture. Reference is hereby made to
Article Thirteen of the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations under the Guarantee which may be
effective under certain circumstances but which is not effective on the date of
this Indenture.
As provided in the Indenture, the obligations of the Company under the
KDSM Senior Debentures and the Indenture are secured by a Lien on the Collateral
granted in favor of Trustee for the benefit and on behalf of the Holders. The
rights of the Trustee in and to the Collateral are governed by the terms of the
Indenture.
All references in this Series B KDSM Senior Debenture or in the
Indenture to accrued and unpaid interest shall be deemed to include, to the
extent applicable, a reference to Penalty Interest and Additional Amounts.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature, this KDSM Senior
Debenture shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
- 41 -
Dated: KDSM, INC.
By:_________________________________
Attest:
____________________________
Secretary
Section 203. Form of Reverse of KDSM Senior Debentures.
(a) The form of the reverse of the Series A KDSM Senior Debentures
shall be substantially as follows:
KDSM, INC.
11 5/8% Senior Debentures Due 2009, Series A
This KDSM Senior Debenture is one of a duly authorized issue of KDSM
Senior Debentures of the Company designated as its 11 5/8% Senior Debentures due
2009, Series A (herein called the "Series A KDSM Senior Debentures"), limited
(except as otherwise provided in the Indenture referred to below) in aggregate
principal amount to $206,200,000, which may be issued under an indenture (herein
called the "Indenture") dated as of March 12, 1997, among the Company, Xxxxxxxx
and First Union National Bank of Maryland, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, Xxxxxxxx, the Trustee and
the Holders of the KDSM Senior Debentures, and of the terms upon which the KDSM
Senior Debentures and the Guarantees are, and are to be, authenticated and
delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on the KDSM Senior Debentures and (b) certain
restrictive covenants and related Defaults and Events of Default, in each case
upon compliance or noncompliance with certain conditions set forth therein.
The Indenture provides, under certain circumstances, for the sale,
transfer or conveyance, or other disposition, directly or indirectly, in one of
a series of related transactions of all or substantially all of the properties
or assets of the Company or any of its Subsidiaries to any Person in exchange
for properties or assets that will be used in the operations of one or more
television or radio broadcasting stations or assets reasonably related thereto
without such Person assuming the obligations of the Company under the Indenture.
- 42 -
The KDSM Senior Debentures are subject to redemption at the option of
the Company (a) at any time on or after March 15, 2002, in whole or in part, in
cash at the following Redemption Prices expressed as a percentage of the
principal amount, if redeemed during the 12-month period beginning March 15 of
the years indicated below:
Redemption
Year Price
---- -----
2002 105.813%
2003 104.650
2004 103.488
2005 102.325
2006 101.163
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, in each case together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on relevant Record
Dates to receive interest due on an Interest Payment Date) or (b) at any time on
or prior to March 15, 2000, in an amount of up to $66,666,666 of the aggregate
original principal amount of KDSM Senior Debentures, with the net proceeds of
one or more redemptions of the Parent Preferred (which Parent Preferred will
have been redeemed from the proceeds of one or more Public Equity Offerings of
Xxxxxxxx) held by the Company, at 111.625% of the aggregate principal amount,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Record Dates to receive
interest due on an Interest Payment Date); provided that (x) after such
redemption at least $139,533,334 aggregate principal amount of KDSM Senior
Debentures remains outstanding and (y) that such redemption is made within 180
days of such a Public Equity Offering of Xxxxxxxx. If the KDSM Senior Debentures
are only partially redeemed by the Company, the KDSM Senior Debentures will be
redeemed pro rata, by lot or in such other manner as the Trustee shall deem
appropriate and fair in its discretion.
The Company may (a) upon a Tax Event or an Investment Company Act
Event, redeem the KDSM Senior Debentures for cash at a Redemption Price of
105.813% of principal in the case of a Tax Event, or 101% in the case of an
Investment Company Act Event, in each case of the aggregate principal amount of
the KDSM Senior Debentures redeemed, plus all accrued and unpaid interest, and
to require Xxxxxxxx to redeem the Parent Preferred for cash pursuant to the
terms thereof at the same redemption prices; provided, that at the time of
redemption in the case of a Tax Event triggered by an amendment, clarification
or change in laws, treaties or the regulations thereunder, such amendment,
clarification or change remains in effect or (b) upon a Tax Event, as holder of
all of the Common Securities of the Trust, cause the Trust to be dissolved with
each Holder of Preferred Securities receiving KDSM Senior Debentures in
principal amount equal to the Liquidation Value of
- 43 -
their Preferred Securities. If KDSM, Inc. exercises the option in clause (b)
above, (i) pursuant to the KDSM Senior Debenture Indenture, Xxxxxxxx shall,
effective at the time of distribution of the KDSM Senior Debentures, fully and
unconditionally guarantee the payment of the KDSM Senior Debentures on a junior
subordinated basis (the "Guarantee"); provided that Xxxxxxxx confirms the
effectiveness of such Guarantee at the time of distribution which it may not do
if such Guarantee is not permitted under the terms of the Existing Indentures or
the Bank Credit Agreement and (ii) the Trust may not be dissolved unless such
Guarantee is effective. The Company may not exercise its rights pursuant to the
above provisions unless simultaneously therewith it delivers a tax opinion to
the Trust to the effect that the dissolution of the Trust and the distribution
of the KDSM Senior Debentures will not be a taxable event for U.S. federal
income tax purposes to the holders of the Preferred Securities. If less than all
the KDSM Senior Debentures are to be redeemed, the particular KDSM Senior
Debentures or portions thereof to be redeemed shall be selected not more than 30
days prior to the Redemption Date by the Trustee, from the Outstanding KDSM
Senior Debentures not previously called for redemption, pro rata, by lot or such
other method as the Trustee shall deem fair and reasonable, and the amounts to
be redeemed may be equal to $100 or any integral multiple thereof.
In the case of any redemption of KDSM Senior Debentures, interest
installments the Stated Maturity of which is on or prior to the Redemption Date
will be payable to the Holders of such KDSM Senior Debentures of record as of
the close of business on the relevant record date referred to on the face
hereof. KDSM Senior Debentures (or portions thereof) for whose redemption and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the date of redemption.
In the event of redemption of this KDSM Senior Debenture in part only,
a new KDSM Senior Debenture or KDSM Senior Debentures for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
Upon the occurrence of a Change of Control, each Holder may require
the Company to repurchase all or a portion of such Holder's KDSM Senior
Debentures, in cash at a purchase price in cash equal to 101% of the principal
amount thereof, together with accrued and unpaid interest (compounded
quarterly), if any, to the date of repurchase; provided that if the Existing
Notes or any Indebtedness, commitments, letters of credit or interest rate
protection agreements under the Bank Credit Agreement are outstanding, such
Holders will not have such right to cause the Company to repurchase the KDSM
Senior Debentures or to be determined due and payable in any manner.
If an Event of Default shall occur and be continuing, the principal
amount of all the KDSM Senior Debentures may be declared due and payable in the
manner and with the effect provided in the Indenture.
- 44 -
If this KDSM Senior Debenture is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this KDSM Senior Debenture is registrable on the Security
Register of the Company, upon surrender of this KDSM Senior Debenture for
registration of transfer at the office or agency of the Company maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new KDSM Senior Debentures, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
If this KDSM Senior Debenture is a Restricted Security in certificated
form, then as provided in the Indenture and subject to certain limitations
therein set forth, the Holder, provided it is a "qualified institutional buyer"
within the meaning of Rule 144A under the KDSM Senior Debentures Act (a "QIB"),
may exchange this KDSM Senior Debenture for an interest in a Global Security by
instructing the Trustee (by completing the Restricted Securities Transfer
Certificate in the form in Exhibit A to the Indenture) to arrange for such KDSM
Senior Debenture to be represented by a beneficial interest in a Global Security
in accordance with the customary procedures of the Depositary, unless the
Company has elected not to issue a Global Security.
If this KDSM Senior Debenture is a Global Security, except as
described below, it is not exchangeable for a KDSM Senior Debenture or KDSM
Senior Debentures in certificated form. The KDSM Senior Debentures will be
delivered in certificated form if (i) the Depositary ceases to be registered as
a clearing agency under the Exchange Act or is no longer willing or able to
provide securities depository services with respect to the KDSM Senior
Debentures, (ii) the Company so determines and (iii) there shall have occurred
an Event of Default or an event which, with the giving of notice or lapse of
time or both, would constitute an Event of Default with respect to the KDSM
Senior Debentures represented by such Global Security and such Event of Default
or event continues for a period of 90 days Upon any such issuance, the Trustee
is required to register such certificated KDSM Senior Debenture in the name of,
and cause the same to be delivered to, such Person or Persons (or the nominee of
any thereof). All such certificated Securities would be required to include the
Restricted Securities Legend.
At any time when the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a KDSM Senior
Debenture, the Company will promptly furnish or cause to be furnished Rule 144A
Information to such Holder or to a prospective purchaser of such KDSM Senior
Debenture who such Holder informs the Company is reasonably believed to be a
QIB, as the case may be, in order to permit compliance by such Holder with Rule
144A under the Securities Act.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof
- 45 -
and the modification of the rights and obligations of the Company and Xxxxxxxx
and the rights of the Holders under the Indenture and the Guarantee at any time
by the Company, Xxxxxxxx and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the KDSM Senior Debentures
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the KDSM
Senior Debentures at the time Outstanding, on behalf of the Holders of all the
KDSM Senior Debentures, to waive compliance by the Company and Xxxxxxxx with
certain provisions of the Indenture and the Guarantee and certain past Defaults
under the Indenture and the Guarantee and their consequences. Any such consent
or waiver by or on behalf of the Holder of this KDSM Senior Debenture shall be
conclusive and binding upon such Holder and upon all future Holders of this KDSM
Senior Debenture and of any KDSM Senior Debenture issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this KDSM Senior Debenture.
No reference herein to the Indenture and no provision of this KDSM
Senior Debenture or of the Indenture shall alter or impair the obligation of the
Company, Xxxxxxxx (to the extent it has guaranteed the obligations of the
Company under the Indenture) or any other obligor upon the KDSM Senior
Debentures (in the event such other obligor is obligated to make payments in
respect of the KDSM Senior Debentures), which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this KDSM Senior
Debenture at the times, place, and rate, and in the coin or currency, herein
prescribed, subject to the subordination provisions of the Indenture.
The KDSM Senior Debentures if issued in certificated form are issuable
only in registered form without coupons in denominations of $100 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the KDSM Senior Debentures are exchangeable for a
like aggregate principal amount of KDSM Senior Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of KDSM Senior Debentures, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this KDSM Senior
Debenture for registration of transfer, the Company, the Trustee and any agent
of the Company or -the Trustee may treat the Person in whose name this KDSM
Senior Debenture is registered as the owner hereof for all purposes (subject to
provisions with respect to record dates for the payment of interest), whether or
not this KDSM Senior Debenture is overdue, and neither the Company, the Trustee
nor any agent shall be affected by notice to the contrary.
- 46 -
THIS KDSM SENIOR DEBENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF).
The Company and, by its acceptance of this KDSM Senior Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this KDSM Senior Debenture agree for United States
federal, state and local tax purposes it is intended that this KDSM Senior
Debenture constitutes indebtedness.
All terms used in this KDSM Senior Debenture which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
(a) The form of the reverse of the Series B KDSM Senior Debentures
shall be substantially as follows:
KDSM, INC.
11 5/8% Senior Debentures Due 2009, Series B
This KDSM Senior Debenture is one of a duly authorized issue of KDSM
Senior Debentures of the Company designated as its 11 5/8% Senior Debentures due
2009, Series B (herein called the "KDSM Senior Debentures"), limited (except as
otherwise provided in the Indenture referred to below) in aggregate principal
amount to $206,200,000, which may be issued under an indenture (herein called
the "Indenture") dated as of March 12, 1997, among the Company, Xxxxxxxx and
First Union National Bank of Maryland, as trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, Xxxxxxxx, the Trustee and the Holders
of the KDSM Senior Debentures, and of the terms upon which the KDSM Senior
Debentures and the Guarantees are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on the KDSM Senior Debentures and (b) certain
restrictive covenants and related Defaults and Events of Default, in each case
upon compliance or noncompliance with certain conditions set forth therein.
The Indenture provides, under certain circumstances, for the sale,
transfer or conveyance, or other disposition, directly or indirectly, in one of
a series of related transactions of all or substantially all of the properties
or assets of the Company or any of its Subsidiaries to any Person in exchange
for properties or assets that will be used in the operations of one or more
television or radio broadcasting stations or assets reasonably
- 47 -
related thereto without such Person assuming the obligations of the Company
under the Indenture.
The KDSM Senior Debentures are subject to redemption at the option of
the Company (a) at any time on or after March 15, 2002, in whole or in part, in
cash at the following Redemption Prices expressed as a percentage of the
principal amount, if redeemed during the 12-month period beginning March 15 of
the years indicated below:
Redemption
Year Price
---- -----
2002 105.813%
2003 104.650
2004 103.488
2005 102.325
2006 101.163
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, in each case together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on relevant Record
Dates to receive interest due on an Interest Payment Date) or (b) at any time on
or prior to March 15, 2000, in an amount of up to $66,666,666 of the aggregate
original principal amount of KDSM Senior Debentures, with the net proceeds of
one or more redemptions of the Parent Preferred (which Parent Preferred will
have redeemed from the proceeds of one or more Public Equity Offerings of
Xxxxxxxx) held by the Company, at 111.625% of the aggregate principal amount,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Record Dates to receive
interest due on an Interest Payment Date); provided that (x) after such
redemption at least $139,533,334 aggregate principal amount of KDSM Senior
Debentures issued remains outstanding and (y) that such redemption be made
within 180 days of such a Public Equity Offering of Xxxxxxxx. If the KDSM Senior
Debentures are only partially redeemed by the Company, the KDSM Senior
Debentures will be redeemed pro rata, by lot or in such other manner as the
Trustee shall deem appropriate and fair in its discretion.
The Company may (a) upon a Tax Event or an Investment Company Act
Event, redeem the KDSM Senior Debentures for cash at a Redemption Price of
105.813% in the case of a Tax Event, or 101% in the case of an Investment
Company Act Event, in each case of the aggregate principal amount of the KDSM
Senior Debentures redeemed, plus all accrued and unpaid interest, and to require
Xxxxxxxx to redeem the Parent Preferred for cash pursuant to the terms thereof
at the same redemption prices; provided, that at the time of redemption in the
case of a Tax Event triggered by an amendment, clarification or change in laws,
treaties or the regulations thereunder, such amendment, clarification or change
remains in effect or (b) upon a Tax Event, as holder of all of the Common
Securities of the Trust, cause the Trust to be dissolved with each Holder of
Preferred Securities receiving KDSM
- 48 -
Senior Debentures in principal amount equal to the Liquidation Value of their
Preferred Securities. If KDSM, Inc. exercises the option in clause (b) above,
(i) pursuant to the KDSM Senior Debenture Indenture, Xxxxxxxx shall, effective
at the time of distribution of the KDSM Senior Debentures (the "Distribution"),
fully and unconditionally guarantee the payment of the KDSM Senior Debentures on
a junior subordinated basis (the "Guarantee"); provided that Xxxxxxxx confirms
the effectiveness of the Guarantee at the time of Distribution which it may not
do if such Guarantee is not permitted under the terms of the Existing Indentures
or the Bank Credit Agreement and (ii) the Trust may not be dissolved unless such
Guarantee is effective. The Company may not exercise its rights pursuant to the
above provisions unless simultaneously therewith it delivers a tax opinion to
the Trust to the effect that the dissolution of the Trust and the distribution
of the KDSM Senior Debentures will not be a taxable event for U.S. federal
income tax purposes to the holders of the Preferred Securities. If less than all
the KDSM Senior Debentures are to be redeemed, the particular KDSM Senior
Debentures or portions thereof to be redeemed shall be selected not more than 30
days prior to the Redemption Date by the Trustee, from the Outstanding KDSM
Senior Debentures not previously called for redemption, pro rata, by lot or such
other method as the Trustee shall deem fair and reasonable, and the amounts to
be redeemed may be equal to $100 or any integral multiple thereof.
In the case of any redemption of KDSM Senior Debentures, interest
installments the Stated Maturity of which is on or prior to the Redemption Date
will be payable to the Holders of such KDSM Senior Debentures of record as of
the close of business on the relevant record date referred to on the face
hereof. KDSM Senior Debentures (or portions thereof) for whose redemption and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the date of redemption.
In the event of redemption of this KDSM Senior Debenture in part only,
a new KDSM Senior Debenture or KDSM Senior Debentures for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
Upon the occurrence of a Change of Control, each Holder may require
the Company to repurchase all or a portion of such Holder's KDSM Senior
Debentures, in cash at a purchase price in cash equal to 101% of the principal
amount thereof, together with accrued and unpaid interest (compounded
quarterly), if any, to the date of repurchase; provided that if the Existing
Notes or any Indebtedness, commitments, letters of credit or interest rate
protection agreements under the Bank Credit Agreement are outstanding, such
Holders will not have such right to cause the Company to repurchase the KDSM
Senior Debentures or otherwise cause the KDSM Senior Debentures to be declared
due and payable in any manner.
If an Event of Default shall occur and be continuing, the principal
amount of all the KDSM Senior Debentures may be declared due and payable in the
manner and with the effect provided in the Indenture.
- 49 -
If this KDSM Senior Debenture is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this KDSM Senior Debenture is registrable on the Security
Register of the Company, upon surrender of this KDSM Senior Debenture for
registration of transfer at the office or agency of the Company maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new KDSM Senior Debentures, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
If this KDSM Senior Debenture is a Global Security, except as
described below, it is not exchangeable for a KDSM Senior Debenture or KDSM
Senior Debentures in certificated form. The KDSM Senior Debentures will be
delivered in certificated form if (i) the Depositary ceases to be registered as
a clearing agency under the Exchange Act or is no longer willing or able to
provide securities depository services with respect to the KDSM Senior
Debentures, (ii) the Company so determines and (iii) there shall have occurred
an Event of Default or an event which, with the giving of notice or lapse of
time or both, would constitute an Event of Default with respect to the KDSM
Senior Debentures represented by such Global Security and such Event of Default
or event continues for a period of 90 days Upon any such issuance, the Trustee
is required to register such certificated KDSM Senior Debenture in the name of,
and cause the same to be delivered to, such Person or Persons (or the nominee of
any thereof).
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and Xxxxxxxx and the rights of the Holders under the Indenture and the
Guarantee at any time by the Company, Xxxxxxxx and the Trustee with the consent
of the Holders of a specified percentage in aggregate principal amount of the
KDSM Senior Debentures at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the KDSM Senior Debentures at the time Outstanding, on
behalf of the Holders of all the KDSM Senior Debentures, to waive compliance by
the Company and Xxxxxxxx with certain provisions of the Indenture and the
Guarantee and certain past Defaults under the Indenture and the Guarantee and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this KDSM Senior Debenture shall be conclusive and binding upon such Holder and
upon all future Holders of this KDSM Senior Debenture and of any KDSM Senior
Debenture issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this KDSM Senior Debenture.
No reference herein to the Indenture and no provision of this KDSM
Senior Debenture or of the Indenture shall alter or impair the obligation of the
Company, Xxxxxxxx (to the extent it has guaranteed the obligations of the
Company under the Indenture) or any
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other obligor upon the KDSM Senior Debentures (in the event such other obligor
is obligated to make payments in respect of the KDSM Senior Debentures), which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this KDSM Senior Debenture at the times, place, and rate, and in the
coin or currency, herein prescribed, subject to the subordination provisions of
the Indenture.
The KDSM Senior Debentures are issuable only in registered form
without coupons in denominations of $100 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the KDSM Senior Debentures are exchangeable for a like aggregate principal
amount of KDSM Senior Debentures of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of KDSM Senior Debentures, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this KDSM Senior
Debenture for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name this KDSM
Senior Debenture is registered as the owner hereof for all purposes (subject to
provisions with respect to record dates for the payment of interest), whether or
not this KDSM Senior Debenture is overdue, and neither the Company, the Trustee
nor any agent shall be affected by notice to the contrary.
THIS KDSM SENIOR DEBENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF).
The Company and, by its acceptance of this KDSM Senior Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this KDSM Senior Debenture agree for United States
federal, state and local tax purposes it is intended that this KDSM Senior
Debenture constitutes indebtedness.
All terms used in this KDSM Senior Debenture which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
Section 204. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
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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 INDENTURE 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 IN THE
INDENTURE.
If The Depository Trust Company 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 COMPANY 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.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authorization shall be included on the
KDSM Senior Debentures and shall be substantially in the form as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the KDSM Senior Debentures referred to in the within
mentioned Indenture.
FIRST UNION NATIONAL BANK OF MARYLAND,
As Trustee
By:_________________________________________
Authorized Signatory
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ARTICLE THREE
THE KDSM SENIOR DEBENTURES
Section 301. Title and Terms.
The aggregate principal amount of KDSM Senior Debentures which may be
authenticated and delivered under this Indenture is limited to $206,200,000 in
principal amount of KDSM Senior Debentures, except for KDSM Senior Debentures
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other KDSM Senior Debentures pursuant to Section 303, 304,
305, 306, 307, 308, 906, 1016 or 1108.
The KDSM Senior Debentures shall be known and designated as the "11
5/8% Senior Debentures due 2009" in the case of either Series A or Series B, as
the case may be, of the Company. The Stated Maturity of the KDSM Senior
Debentures shall be March 15, 2009 Series A or Series B, as the case may be, and
the KDSM Senior Debentures shall each bear interest at the rate of 11 5/8% per
annum plus Additional Interest and Penalty Interest, if any, from March 12, 1997
or from the most recent Interest Payment Date to which interest has been paid,
as the case may be, payable beginning on June 15, 1997 and quarterly thereafter
on March 15, June 15, September 15, and December 15, in each year, until the
principal thereof is paid or duly provided for, and at a rate of 11 5/8% per
annum on any overdue principal or interest.
Unless otherwise specified herein, the Series A KDSM Senior Debentures
and the Series B KDSM Senior Debentures will be treated as one class and are
together referred to as the "KDSM Senior Debentures." The Series A KDSM Senior
Debentures rank pari passu in right of payment with the Series B KDSM Senior
Debentures.
The Company shall have the right to extend the interest payment period
on the KDSM Senior Debentures in accordance with the terms of the KDSM Senior
Debentures as set forth in Section 202.
Payment of the principal of, premium, if any, and interest on the KDSM
Senior Debentures shall be made at the office or agency of the Paying Agent
maintained for that purpose in the United States, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register or (ii) by wire transfer in immediately available funds to an account
specified (not later than one Business Day prior to the applicable Payment Date)
by the Holder thereof. If any of the KDSM Senior Debentures are held by the
Depository, payments of interest may be made by wire transfer to the Depository.
The Trustee is hereby initially designated as the Paying Agent under this
Indenture.
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The KDSM Senior Debentures shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire Indebtedness on the KDSM
Senior Debentures or certain of the Company's obligations and covenants and
certain Events of Default thereunder may be defeased as provided in Article
Four.
Section 302. Denominations.
The KDSM Senior Debentures shall be issuable only in registered form
without coupons and only in denominations of $100 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The KDSM Senior Debentures shall be executed on behalf of the Company
by one of its Chairman of the Board, its President or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries.
KDSM Senior Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such KDSM Senior
Debentures or did not hold such offices on the date of such KDSM Senior
Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver KDSM Senior Debentures executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such KDSM Senior Debentures; and the Trustee in
accordance with such Company Order shall authenticate and deliver such KDSM
Senior Debentures as provided in this Indenture and not otherwise.
Each KDSM Senior Debenture shall be dated the date of its
authentication.
No KDSM Senior Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
KDSM Senior Debenture a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any KDSM Senior Debenture shall be
conclusive evidence, and the only evidence, that such KDSM Senior Debenture has
been duly authenticated and delivered hereunder.
Except in connection with an Asset Transfer Transaction, in case the
Company or Xxxxxxxx, pursuant to Article Eight, shall be consolidated, merged
with or into any other Person or shall sell, assign, convey, transfer or lease
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or
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surviving such merger, or into which the Company or such Xxxxxxxx shall have
been merged, or the Person which shall have received a sale, assignment,
conveyance, transfer or lease as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the KDSM
Senior Debentures authenticated or delivered prior to such consolidation,
merger, sale, assignment, conveyance, transfer or lease may, from time to time,
at the request of the successor Person, be exchanged for other KDSM Senior
Debentures executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the KDSM Senior Debentures surrendered for such exchange and of like
principal amount; and the Trustee, upon Company Request of the successor Person,
shall authenticate and deliver KDSM Senior Debentures as specified in such
request for the purpose of such exchange. If KDSM Senior Debentures shall at any
time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any KDSM Senior Debentures, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
KDSM Senior Debentures at the time Outstanding for KDSM Senior Debentures
authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate KDSM Senior Debentures on behalf of the Trustee. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate KDSM Senior Debentures whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
KDSM Senior Debenture Registrar or Paying Agent to deal with the Company and its
Affiliates.
Section 304. Temporary KDSM Senior Debentures.
Pending the preparation of definitive KDSM Senior Debentures, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary KDSM Senior Debentures which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive KDSM Senior Debentures in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such KDSM Senior Debentures may determine,
as conclusively evidenced by their execution of such KDSM Senior Debentures.
After the preparation of definitive KDSM Senior Debentures, the
temporary KDSM Senior Debentures shall be exchangeable for definitive KDSM
Senior Debentures upon surrender of the temporary KDSM Senior Debentures at the
office or agency of the Company designated for such purpose pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary KDSM Senior Debentures the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a
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like principal amount of definitive KDSM Senior Debentures of authorized
denominations. Until so exchanged the temporary KDSM Senior Debentures shall in
all respects be entitled to the same benefits under this Indenture as definitive
KDSM Senior Debentures.
Section 305. Global Securities.
(a) In the event that the Trust is not the sole holder of the KDSM
Senior Debentures, with respect to transfers of QIBs, a Global Security shall,
if the Depositary permits, (i) be registered in the name of the Depositary for
such Global Security or the nominee of such Depositary, (ii) be deposited with,
or on behalf of, the Depositary and (iii) bear legends as set forth in Sections
202 and 204; provided, however, the KDSM Senior Debentures are eligible to be in
the form of a Global Security.
Transfers made to Accredited Investors shall be made only in
certificated form and not as a beneficial interest in a Global Security.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any KDSM Senior Debenture.
(b) Transfers of the Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, 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 the Depositary and the provisions of Section 307. Under the circumstances
described in clause (a) above, and in this clause (b) below, beneficial owners
shall obtain physical securities in the form set forth in Sections 202, 203, 204
(if applicable) and 205 ("Physical Securities") in exchange for their beneficial
interests in a Global Security in accordance with the Depositary's and the
Security Registrar's procedures. In connection with the execution,
authentication and delivery of such Physical Securities, the Security Registrar
shall reflect on its books and records a decrease in the principal amount of the
Global Security equal to the principal amount of such Physical Securities and
the Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Securities having an equal aggregate principal amount. The KDSM
Senior Debentures will be delivered in certificated form if (i) the Depositary
ceases to be registered as a clearing agency under the Exchange Act or is not
willing or no longer willing or able to provide securities depository services
with respect to the KDSM Senior Debentures, (ii) the
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Company so determines or (iii) there shall have occurred an Event of Default or
an event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default with respect to the KDSM Senior Debentures
represented by such Global Security and such Event of Default or event continues
for a period of 90 days.
(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
principal amount of a Global Security in an amount equal to the principal amount
of the beneficial interest in the Global Security to be transferred, and the
Company shall execute, and the 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 Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
owner identified by the Depositary in exchange for its beneficial interest in a
Global Security, an equal aggregate principal amount of 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 307, bear the Restricted Securities Legend.
(f) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the KDSM Senior Debentures.
(g) KDSM Senior Debentures distributed to holders of Preferred
Securities which are held in book-entry form shall be distributed upon the
dissolution of Xxxxxxxx Capital in the form of one or more Global Securities
registered in the name of the Depositary or its nominee, and deposited with the
Depositary, or with the Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the KDSM Senior Debentures
represented thereby (or such other accounts as they may direct). KDSM Senior
Debentures distributed to holders of Preferred Securities not held in book-entry
form, shall not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests in such KDSM
Senior Debentures.
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Section 306. Registration, Registration of Transfer and Exchange.
The Company shall direct the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such other
office as the Trustee may designate, a register (the register maintained in such
office or in any other office or agency designated pursuant to Section 1002
being herein sometimes referred to as the "Security Register") in which, subject
to such reasonable regulations as the Security Registrar may prescribe, the
Company shall provide for the registration of KDSM Senior Debentures and of
transfers of KDSM Senior Debentures. The Trustee shall initially be the
"Security Registrar" for the purpose of registering KDSM Senior Debentures and
transfers of KDSM Senior Debentures as herein provided.
Upon surrender for registration of transfer of any KDSM Senior
Debenture at the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new KDSM
Senior Debentures of the same series of any authorized denomination or
denominations, of a like aggregate principal amount.
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 KDSM Senior Debentures shall be required to be
reflected in a book entry.
At the option of the Holder, KDSM Senior Debentures may be exchanged
for other KDSM Senior Debentures of any authorized denomination or
denominations, of a like aggregate principal amount, upon surrender of the KDSM
Senior Debentures to be exchanged at such office or agency. Whenever any KDSM
Senior Debentures are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the KDSM Senior Debentures of
the same series which the Holder making the exchange is entitled to receive;
provided that no exchange of Series A KDSM Senior Debentures for Series B KDSM
Senior Debentures shall occur until an Exchange Offer Registration Statement
shall have been declared effective by the Commission and that the Series A KDSM
Senior Debentures exchanged for the Series B KDSM Senior Debentures shall be
cancelled.
All KDSM Senior Debentures issued upon any registration of transfer or
exchange of KDSM Senior Debentures shall be the valid obligations of the
Company, evidencing the same Indebtedness, and entitled to the same benefits
under this Indenture, as the KDSM Senior Debentures surrendered upon such
registration of transfer or exchange.
Every KDSM Senior Debenture presented or surrendered for registration
of transfer, or for exchange or redemption shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the
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Company and 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 for any registration of
transfer or exchange or redemption of KDSM Senior Debentures, but the Company
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 KDSM Senior
Debentures, other than exchanges pursuant to Section 303, 304, 305, 306, 307,
308, 906, 1016 or 1108 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange any KDSM Senior Debenture during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of the
KDSM Senior Debentures selected for redemption under Section 1104 and ending at
the close of business on the day of such mailing, or (b) to register the
transfer of or exchange any KDSM Senior Debenture so selected for redemption in
whole or in part, except the unredeemed portion of KDSM Senior Debentures being
redeemed in part.
Every Restricted Security shall be subject to the restrictions on
transfer provided in the legend required to be set forth on the face of each
Restricted Security pursuant to Section 202, and the restrictions set forth in
this Section 306, and the Holder of each Restricted Security, by such Holder's
acceptance thereof (or interest therein), agrees to be bound by such
restrictions on transfer.
The restrictions imposed by this Section 306 upon the transferability
of any particular Restricted 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 Company or any Affiliate of the Company was the owner of such
Restricted Security (or any predecessor of such Restricted Security) or (b) (if
earlier) if and when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or under the Securities Act (or any successor provision),
unless the Holder thereof is an affiliate of the Company within the meaning of
Rule 144 (or such successor provisions). Any Restricted 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 Security for
exchange to the Security Registrar in accordance with the provision of this
Section 306 (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 Company and the Trustee, to the effect that the
transfer of such Restricted Security has been made in compliance with Rule 144
(or any such successor provision)), be exchanged for a new KDSM Senior
Debenture, of like tenor and aggregate principal amount, which shall not bear
the Restricted Securities Legend. The Company shall inform the Trustee of the
effective date of any Registration Statement registering the KDSM Senior
Debentures under the Securities Act no later than two Business Days after such
effective date.
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Except as provided in the preceding paragraph, any KDSM Senior
Debenture authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security, whether pursuant to this
Section, Section 304, 308, 906 or 1108 or otherwise, shall also be a Global
Security and bear the legend specified in Section 202.
Section 307. Special Transfer Provisions.
Unless and until (i) a KDSM Senior Debenture is sold under an
effective Registration Statement, or (ii) a KDSM Senior Debenture is exchanged
for a Series B KDSM Senior Debenture in connection with the Exchange Offer, in
each case pursuant to 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 an Initial KDSM Senior Debenture to an "Accredited
Investor" which is not a QIB:
(i) The Security Registrar shall register the transfer of any
Initial KDSM Senior Debenture whether or not such Initial KDSM Senior
Debenture bears the Restricted Securities Legend, if (x) the requested
transfer is at least two years after the original issue date of the
Initial KDSM Senior Debentures or (y) the proposed transferee has
delivered to the Security Registrar a certificate substantially in the
form set forth in Exhibit A.
(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 the Depositary'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
principal amount of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security
transferred, and the Company shall execute, and the 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 an Initial KDSM Senior
Debenture to a QIB:
(i) If the KDSM Senior Debenture 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 Company 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 Initial KDSM Senior Debenture stating, or has otherwise
advised the Company and the Security Registrar in writing, that it is
purchasing the Initial
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KDSM Senior Debenture 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 Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Initial KDSM Senior Debenture to be transferred consists of Physical
Securities, upon receipt by the Security Registrar of instructions
given in accordance with the Depositary'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 principal amount of the
Global Security in an amount equal to the principal amount of the
Physical Securities, to be transferred, and the Trustee shall cancel
the Physical Security so transferred.
(c) Restricted Securities Legend. Upon the registration of transfer,
exchange or replacement of KDSM Senior Debentures not bearing the Restricted
Securities Legend, the Security Registrar shall deliver KDSM Senior Debentures
that do not bear the Restricted Securities Legend. Upon the registration of
transfer, exchange or replacement of KDSM Senior Debentures bearing the
Restricted Securities Legend, the Security Registrar shall deliver only KDSM
Senior Debentures that bear the Restricted Securities Legend unless either (i)
the circumstances contemplated by paragraph (a)(i)(x) of this Section 307 exist
or (ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any KDSM Senior Debenture bearing
the Restricted Securities Legend, each Holder of such a KDSM Senior Debenture
acknowledges the restrictions on transfer of such KDSM Senior Debenture set
forth in this Indenture and in the Restricted Securities Legend and agrees that
it will transfer such KDSM Senior Debenture only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 306 or this Section
307. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
Section 308. Mutilated, Destroyed, Lost and Stolen KDSM Senior
Debentures.
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If (a) any mutilated KDSM Senior Debenture is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any KDSM Senior Debenture, and
there is delivered to the Company, Xxxxxxxx and the Trustee, such security or
indemnity, in each case, as may be required by them to save each of them
harmless, then, in the absence of notice to the Company, Xxxxxxxx or the Trustee
that such KDSM Senior Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated KDSM Senior
Debenture or in lieu of any such destroyed, lost or stolen KDSM Senior
Debenture, a replacement KDSM Senior Debenture of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen KDSM Senior
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement KDSM Senior Debenture, pay such
KDSM Senior Debenture.
Upon the issuance of any replacement KDSM Senior Debentures under this
Section, the Company may require the 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 relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement KDSM Senior Debenture issued pursuant to this
Section in lieu of any destroyed, lost or stolen KDSM Senior Debenture shall
constitute an original additional contractual obligation of the Company and
Xxxxxxxx, whether or not the destroyed, lost or stolen KDSM Senior Debenture
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
KDSM Senior Debentures duly issued hereunder.
The provisions of this Section 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 KDSM Senior Debentures.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any KDSM Senior Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that KDSM Senior Debenture is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any KDSM Senior Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
KDSM Senior Debentures, to the extent lawful (such defaulted interest and
interest thereon herein collectively called
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"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
Regular Record Date; and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Subsection (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the KDSM Senior Debentures are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each KDSM
Senior Debenture and the date (not less than 30 days after such
notice) of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Subsection provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
in writing of such Special Record Date. In the name and at the expense
of the Company, the Trustee shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the KDSM Senior Debentures are registered on such Special Record
Date and shall no longer be payable pursuant to the following
Subsection (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the KDSM Senior Debentures may at such
time be listed, and upon such notice as may be required by such
exchange, if, after written notice given by the Company to the Trustee
of the proposed payment pursuant to this Subsection, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each KDSM Senior
Debenture delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other KDSM Senior Debenture shall carry the
rights to interest accrued and unpaid, and to accrue (including in each such
case Additional Interest), which were carried by such other KDSM Senior
Debenture.
Section 310. Persons Deemed Owners.
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The Company, Xxxxxxxx, the Trustee and any agent of the Company,
Xxxxxxxx, or the Trustee may treat the Person in whose name any KDSM Senior
Debenture is registered as the owner of such KDSM Senior Debenture for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Section 309) interest on such KDSM Senior Debenture and for all other purposes
whatsoever, whether or not such KDSM Senior Debenture is overdue, and none of
the Company, Xxxxxxxx, the Trustee nor any agent of the Company, Xxxxxxxx or the
Trustee shall be affected by notice to the contrary. No holder of any beneficial
interest in any Global Security held on its behalf by a Depositary shall have
any rights under this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, Xxxxxxxx, the Trustee and any agent of
the Company, Xxxxxxxx or the Trustee as the owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, Xxxxxxxx or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any KDSM Senior Debenture.
Section 311. Cancellation.
All KDSM Senior Debentures surrendered for payment, purchase,
redemption, registration of transfer or exchange shall be delivered to the
Trustee and, if not already cancelled, shall be promptly cancelled by it. The
Company and Xxxxxxxx may at any time deliver to the Trustee for cancellation any
KDSM Senior Debentures previously authenticated and delivered hereunder which
the Company or such Xxxxxxxx may have acquired in any manner whatsoever, and all
KDSM Senior Debentures so delivered shall be promptly cancelled by the Trustee.
No KDSM Senior Debentures shall be authenticated in lieu of or in exchange for
any KDSM Senior Debentures cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled KDSM Senior Debentures held
by the Trustee shall be destroyed and certification of their destruction
delivered to the Company unless by a Company Order the Company shall direct that
the cancelled KDSM Senior Debentures be returned to it. The Trustee shall
provide the Company a list of all KDSM Senior Debentures that have been
cancelled from time to time as requested by the Company.
Section 312. Computation of Interest.
Interest on the KDSM Senior Debentures shall be computed on the basis
of a 360- day year of twelve 30-day months.
Section 313. Right of Set-Off.
Notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder to the extent
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Xxxxxxxx has theretofore made, or is concurrently on the date of such payment
making, a payment under the Parent Guarantee.
Section 314. CUSIP Numbers.
The Company in issuing the KDSM Senior Debentures may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the KDSM Senior Debentures or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the KDSM Senior Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 315. Agreed Tax Treatment.
Each KDSM Senior Debenture issued hereunder shall provide that the
Company and, by its acceptance of a KDSM Senior Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, such KDSM Senior Debenture agree that for United States federal,
state and local tax purposes it is intended that such KDSM Senior Debenture
constitutes indebtedness.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the KDSM Senior Debentures, elect to have either Section 402 or
Section 403 be applied to all of the Outstanding KDSM Senior Debentures (the
"Defeased Securities"), upon compliance with the conditions set forth below in
this Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 402, the Company, Xxxxxxxx and any other obligor upon the KDSM
Senior Debentures, if any, shall be deemed to have been discharged from its
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the Defeased Securities, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
405 and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied
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all its other obligations under such KDSM Senior Debentures and this Indenture
insofar as such KDSM Senior Debentures are concerned (and the Trustee, at the
expense of the Company, and, upon written request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such KDSM Senior
Debentures when such payments are due, (b) the Company's obligations with
respect to such Defeased Securities under Sections 304, 305, 306, 307, 1002 and
1003, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
606, and (d) this Article Four. Subject to compliance with this Article Four,
the Company may exercise its option under this Section 402 notwithstanding the
prior exercise of its option under Section 403 with respect to the KDSM Senior
Debentures.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, the Company and Xxxxxxxx shall be released from its
obligations under any covenant or provision contained or referred to in Sections
1006 through 1014, 1016 and 1018 through 1021, and the provisions of Sections
1316 through 1328 shall not apply, with respect to the Defeased Securities on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Securities shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants and the provisions of Sections 1316 through 1328,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company and Xxxxxxxx may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501(d), but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
402 or Section 403 to the Defeased Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 608 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the
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purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such KDSM Senior
Debentures, (i) United States dollars in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, and interest on
the Defeased Securities on the Stated Maturity of such principal or installment
of principal or interest (or on any date after March 15, 2002 (such date being
referred to as the "Defeasance Redemption Date"), if when exercising under
Section 401 either its option applicable to Section 402 or its option applicable
to Section 403, the Company shall have delivered to the Trustee an irrevocable
notice to redeem all of the Outstanding KDSM Senior Debentures on the Defeasance
Redemption Date); provided that the Trustee shall have been irrevocably
instructed to apply such United States dollars or the proceeds of such U.S.
Government Obligations to said payments with respect to the KDSM Senior
Debentures, and provided, further, that the United States dollars or U.S.
Government Obligations deposited shall not be subject to rights of the holders
of Xxxxxxxx Senior Indebtedness pursuant to the provisions of Article Thirteen.
For this purpose, "U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(b) In the case of an election under Section 402, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Independent Counsel in the United States shall confirm that, the holders of the
Outstanding KDSM Senior Debentures will not recognize income, gain or loss for
federal income tax
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purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(c) In the case of an election under Section 403, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that the holders of the Outstanding KDSM Senior Debentures
will not recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Sections 501(h) and (i) are
concerned, at any time during the period ending on the 91st day after the date
of deposit.
(e) Such defeasance or covenant defeasance shall not cause the Trustee
for the KDSM Senior Debentures to have a conflicting interest with respect to
any securities of the Company or any Xxxxxxxx.
(f) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company or any Xxxxxxxx is a
party or by which it is bound.
(g) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel to the effect that (i) the trust funds will not be subject
to any rights of holders of Xxxxxxxx Senior Indebtedness, including, without
limitation, those arising under this Indenture and (ii) after the 91st day
following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(h) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the KDSM Senior Debentures or any Guarantee over
the other creditors of the Company or any Xxxxxxxx with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Xxxxxxxx or
others.
(i) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
KDSM Senior Debentures on the date of such deposit or at any time ending on the
91st day after the date of such deposit.
(j) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for
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relating to either the defeasance under Section 402 or the covenant defeasance
under Section 403 (as the case may be) have been complied with as contemplated
by this Section 404.
Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section may have qualifications customary for opinions of
the type required and counsel delivering such opinions may rely on certificates
of the Company or government or other officials customary for opinions of the
type required, including certificates certifying as to matters of fact,
including that various financial covenants have been complied with.
Section 405. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee as permitted
under Section 404(a) (collectively for purposes of this Section 405, the
"Trustee") pursuant to Section 404 in respect of the Defeased Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such KDSM Senior Debentures and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such KDSM Senior
Debentures of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 402 or 403, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's and Xxxxxxxx'x
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obligations under this Indenture and the KDSM Senior Debentures and the
provisions of Article Twelve and Thirteen hereof shall be revived and reinstated
as though no deposit had occurred pursuant to Section 402 or 403, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply all
such United States dollars or U.S. Government Obligations in accordance with
Section 402 or 403, as the case may be; provided, however, that if the Company
makes any payment to the Trustee or Paying Agent of principal of, premium, if
any, or interest on any KDSM Senior Debenture following the reinstatement of its
obligations, the Trustee or Paying Agent shall promptly pay any such amount to
the Holders of the KDSM Senior Debentures and the Company shall be surrogated to
the rights of the Holders of such KDSM Senior Debentures to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default" means any one or more of the following events which
has occurred and is continuing:
(a) failure for 30 days to pay any interest on the KDSM Senior
Debentures (including any Additional Interest or Penalty Interest in respect
thereof) when due (subject to the deferral of any due date in the case of an
Extension Period); or
(b) failure to pay any principal on the KDSM Senior Debentures when
due, whether at maturity, upon redemption by declaration or otherwise; or
(c) the occurrence of a Voting Rights Triggering Event under the
Parent Preferred (other than pursuant to Section 6(a)(ii) of the Articles
Supplementary), which Voting Rights Triggering Event shall be continuing; or
(d) (i) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company or Xxxxxxxx under this Indenture (other
than a default in the performance or breach of a covenant or agreement which is
specifically addressed in clause (a) or (b) or in clause (ii) or (iii) of this
clause (d)) and such default or breach shall continue for a period of 30 days
after written notice has been given, by certified mail, (A) to the Holder or
Holders of the KDSM Senior Debentures by the Trustee or (B) to the Company and
the Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding KDSM Senior Debentures (or by the Trustees under the Trust if the
Trust owns at least 25% in aggregate principal amount of the Outstanding KDSM
Senior Debentures); (ii) there shall be a default in the performance or breach
of the provisions of Article Eight; or (iii) the Company shall have failed to
promptly redeem the KDSM Senior
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Debentures from the proceeds of any redemption of the Parent Preferred or shall
fail to make or consummate a Change of Control Offer in accordance with Section
1016; or
(e) the occurrence of an "Event of Default" under, and as defined in,
the Expense Agreement; or
(f) any of the Collateral Documents shall for any reason cease to be,
or be asserted in writing by the Company of any Subsidiary, as applicable, not
to be, in full force and effect and enforceable in accordance with its terms, or
any security interest purported to be created by the Collateral Document shall
cease to be valid and perfected first security interest in any Collateral or
there shall be a material default under the Pledge Agreement, except in each
case to the extent contemplated by this Indenture or such Collateral Document;
or
(g) the Guarantee, after becoming effective in accordance with Article
Thirteen, shall for any reason cease to be, or be asserted in writing by
Xxxxxxxx not to be, in full force and effect, enforceable in accordance with its
terms, except to the extent contemplated by this Indenture and the Guarantee; or
(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company,
Xxxxxxxx or any Significant Subsidiary of the Company or Xxxxxxxx in an
involuntary case or proceeding under any applicable Bankruptcy Law or (ii) a
decree or order adjudging the Company, Xxxxxxxx or any Significant Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, Xxxxxxxx or any Significant
Subsidiary under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, Xxxxxxxx or any Significant Subsidiary or of any
substantial part of their respective properties, or ordering the winding up or
liquidation of their affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days; or
(i) (i) the Company, Xxxxxxxx or any Significant Subsidiary commences
a voluntary case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent, (ii) the Company,
Xxxxxxxx or any Significant Subsidiary consents to the entry of a decree or
order for relief in respect of the Company, Xxxxxxxx or such Significant
Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, (iii) the Company, Xxxxxxxx or any Significant Subsidiary files a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Company, Xxxxxxxx or any Significant
Subsidiary (1) consents to the filing of such petition or the appointment of, or
taking possession by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Xxxxxxxx or such
Significant Subsidiary or of any substantial part of its respective properties,
(2) makes
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an assignment for the benefit of creditors or (3) admits in writing its
inability to pay its debts generally as they become due, or (v) the Company,
Xxxxxxxx or any Subsidiary takes any corporate action authorizing any such
actions in this paragraph (i).
The Company shall deliver to the Trustee within five days after the
occurrence thereof, written notice, in the form of an Officers' Certificate, of
any Event of Default or Default, its status and what action the Company is
taking or proposes to take with respect thereto. Unless the Corporate Trust
Office of the Trustee has received written notice of an Event of Default or
Default of the nature described in this Section, the Trustee shall not be deemed
to have knowledge of such Event of Default for the purposes of Article Five or
for any other purpose.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 501(h) and (i)), shall occur and be continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the KDSM Senior
Debentures outstanding or (if the Trust holds at least 25% in aggregate
principal amount of the KDSM Senior Debentures) the Property Trustee on its own
behalf or pursuant to the Trust Agreement, at the direction of the holders of at
least 25% in aggregate Liquidation Value of outstanding Preferred Securities
may, and the Trustee at the request of the Holders of not less than 25% in
aggregate principal amount of the Outstanding KDSM Senior Debentures, shall,
declare all unpaid principal of, premium, if any, and accrued interest on all
the KDSM Senior Debentures to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders of the KDSM
Senior Debentures). If an Event of Default specified in clause (h) or (i) of
Section 501 occurs and is continuing, then all the KDSM Senior Debentures shall
ipso facto become and be immediately due and payable, in an amount equal to the
principal amount of the KDSM Senior Debentures, together with accrued and unpaid
interest, if any, and any Additional Interest, to the date the KDSM Senior
Debentures become due and payable, without any declaration or other act on the
part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made but
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding KDSM Senior Debentures or the
Property Trustee on its own behalf or, pursuant to the Trust Agreement, at the
direction of the holders of at least a majority in aggregate Liquidation Value
of the Outstanding Preferred Securities, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest (including any Additional Interest) on
all KDSM Senior Debentures,
(iii) the principal of and premium, if any, on any KDSM Senior
Debentures which have become due otherwise than by such declaration of
acceleration and interest thereon at a rate borne by the KDSM Senior
Debentures, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the KDSM Senior
Debentures; and
(b) all Events of Default, other than the non-payment of principal of
the KDSM Senior Debentures which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 513.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any KDSM
Senior Debenture when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any KDSM Senior Debenture at the Stated Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such KDSM Senior Debentures, the whole amount then due and payable on
such KDSM Senior Debentures for principal and premium, if any, and interest,
with interest upon the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the KDSM Senior Debentures; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the
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collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
other obligor upon the KDSM Senior Debentures and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the KDSM Senior Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights,
including, seeking recourse against Xxxxxxxx pursuant to the terms of any
Guarantee, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including
Xxxxxxxx, upon the KDSM Senior Debentures or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the KDSM Senior Debentures shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal,
and premium, if any, and interest owing and unpaid in respect of the
KDSM Senior Debentures and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) subject to Articles Twelve and Thirteen, to collect and
receive any moneys, securities or other property payable or
deliverable upon any conversion or exchange of KDSM Senior Debentures
or upon any such claims and to distribute the same;
and any custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the KDSM Senior
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of KDSM
Senior Debentures.
All rights of action and claims under this Indenture or the KDSM
Senior Debentures may be prosecuted and enforced by the Trustee without the
possession of any of the KDSM Senior Debentures or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the KDSM Senior
Debentures in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the KDSM Senior Debentures
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid upon the
KDSM Senior Debentures for principal, premium, if any, and interest, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such KDSM Senior Debentures for principal, premium, if any, and
interest; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company, provided that all sums due and owing to the Holders and
the Trustee have been paid in full as required by this Indenture.
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Section 507. Limitation on Suits.
No Holder of any KDSM Senior Debentures shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding KDSM Senior Debentures shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding KDSM Senior
Debentures;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or the Guarantee to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner provided in this Indenture or the Guarantee and for the equal and ratable
benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any KDSM Senior Debenture shall have the right on the terms stated herein, which
is absolute and unconditional, to receive payment of the principal of, premium,
if any, and (subject to Section 309) interest on such KDSM Senior Debenture on
the respective Stated Maturities expressed in such KDSM Senior Debenture (or, in
the case of redemption or repurchase, on the Redemption Date or repurchase date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or the Guarantee and such proceeding
has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case the
Company, Xxxxxxxx, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any KDSM
Senior Debenture to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding KDSM Senior Debentures shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, provided
that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or expose the Trustee to personal liability;
and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
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The Holders of not less than a majority in aggregate principal amount
of the Outstanding KDSM Senior Debentures (or if the Trust holds a majority of
the aggregate principal amount of the KDSM Senior Debentures, the Property
Trustee on behalf of a majority in aggregate Liquidation Value of Outstanding
Preferred Securities) may on behalf of the Holders of all the KDSM Senior
Debentures waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or
interest (including Additional Interests or Penalty Interest) on any
KDSM Senior Debenture (unless such Default has been cured and a sum
sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration and any Additional Interest or
Penalty Interest has been deposited with the Trustee); or
(b) in respect of a covenant or a provision hereof which under
Article Nine cannot be modified or amended without the consent of each
Holder of the Outstanding Securities affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any KDSM
Senior Debenture by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding KDSM Senior
Debentures, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on any KDSM Senior
Debenture on or after the respective Stated Maturities expressed in such KDSM
Senior Debenture (or, in the case of redemption, on or after the Redemption
Date).
Section 515. Waiver of Stay; Extension or Usury Laws.
Each of the Company and Xxxxxxxx covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or
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take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company or Xxxxxxxx from paying all or any portion of
the principal of, premium, if any, or interest on the KDSM Senior Debentures
contemplated herein or in the KDSM Senior Debentures or which may affect the
covenants or the performance of this Indenture; and each of the Company and
Xxxxxxxx (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 15 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of, premium, if any, or
interest on any KDSM Senior Debenture, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of
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any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred therein or thereby
in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence of the Trustee;
(f) the 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, direction, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document;
provided that the Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may deem fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers;
(i) the Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company, except as
otherwise provided herein; and
(j) money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law, except as otherwise provided
herein.
Section 603. Trustee Not Responsible for Recitals, Dispositions of
KDSM Senior Debentures or Application of Proceeds Thereof.
The recitals contained herein and in the KDSM Senior Debentures,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and
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the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the
KDSM Senior Debentures, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the KDSM Senior
Debentures and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of KDSM Senior Debentures or the proceeds thereof.
Section 604. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 605. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Four, the Trustee may invest all moneys received by
the Trustee, until used or applied as herein provided, in Temporary Cash
Investments in accordance with the written directions of the Company. The
Trustee shall not be liable for any losses incurred in connection with any
investments made in accordance with this Section 605, unless the Trustee acted
with gross negligence or in bad faith. With respect to any losses on investments
made under this Section 605, the Company is liable for the full extent of any
such loss.
Section 606. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company and Xxxxxxxx (if the Guarantee pursuant to Article 13 is
effective) covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for all services rendered
by it hereunder (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such
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expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence or bad faith on
such Trustee's part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and such Trustee's
duties hereunder, including enforcement of this Indenture and also including any
liability which the Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental charge, and the costs and
expenses of defending itself against or investigating any claim of liability
(whether asserted by any Holder, the Company or any other Person) in connection
with the exercise or performance of any of its powers or duties under this
Indenture. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture.
All payments and reimbursements pursuant to this Section 606 shall be
made with interest at the rate borne by the KDSM Senior Debentures.
As security for the performance of the obligations of the Company
under this Section 606, the Trustee shall have a Lien prior to the KDSM Senior
Debentures upon all property and funds held or collected by the Trustee, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular KDSM Senior Debentures. The Trustee's right to receive
payment of any amounts due under this Section 606 shall not be subordinate to
any other liability or indebtedness of the Company and the KDSM Senior
Debentures shall be subordinate to the Trustee's right to receive such payment.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $250,000,000, to the
extent there is an institution eligible and willing to serve. The Trustee shall
be a participant in the Depository Trust Company and FAST distribution systems.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and
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surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinafter specified in this Article. The Corporate Trust
Office shall initially be located at First Union National Bank of Maryland, 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000.
Section 609. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 610.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument executed by authority of the Board of
Directors of the Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of acceptance by a
successor trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may, or
any Holder who has been a bona fide Holder of a KDSM Senior Debenture 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
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
not less than a majority in aggregate principal amount of the Outstanding KDSM
Senior Debentures, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a KDSM
Senior Debenture for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a KDSM Senior
Debenture for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
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then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any KDSM Senior Debenture who has
been a bona fide Holder of a KDSM Senior Debenture for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding KDSM Senior
Debentures delivered to the Company and the retiring Trustee, the successor
trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor trustee and supersede the successor trustee appointed by
the Company. If no successor trustee shall have been so appointed by the Company
or the Holders of the KDSM Senior Debentures and accepted appointment in the
manner hereinafter provided, the Holder of any KDSM Senior Debenture who has
been a bona fide Holder for at least six months may, subject to Section 514, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
KDSM Senior Debentures as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 610. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee as if originally named as Trustee hereunder;
but, nevertheless, on the written request of the Company or the successor
trustee, upon payment of its charges then unpaid, such retiring Trustee shall,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor trustee all
such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such Trustee or such
successor
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trustee to secure any amounts then due such Trustee pursuant to the provisions
of Section 606.
No successor trustee with respect to the KDSM Senior Debentures shall
accept appointment as provided in this Section 610 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Sixth and
shall have a combined capital and surplus of at least $250,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 608.
Upon acceptance of appointment by any successor trustee as provided in
this Section 610, the Company shall give notice thereof to the Holders of the
KDSM Senior Debentures, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 609. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under Trust Indenture Act Section
310(a) and this Article Sixth and shall have a combined capital and surplus of
at least $250,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 608 without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the KDSM Senior Debentures shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such KDSM Senior Debentures so authenticated; and, in case at that time any of
the KDSM Senior Debentures shall not have been authenticated, any successor to
the Trustee may authenticate such KDSM Senior Debentures either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the KDSM Senior Debentures or in this Indenture provided that the certificate of
the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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Section 612. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or other obligor under the KDSM Senior Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor). A Trustee who has
resigned or been removed shall be subject to the Trust Indenture Act Section
311(a) to the extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after the Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Every Holder of KDSM Senior Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with Trust Indenture Act Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of KDSM Senior Debentures, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, as provided in Trust
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Indenture Act Section 313(c), a brief report dated as of such May 15 in
accordance with and to the extent required by Trust Indenture Act Section
313(a).
Section 704. Reports by Company and Xxxxxxxx.
(a) File with the Trustee, within 15 days after the Company or
Xxxxxxxx, as the case may be, is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company or Xxxxxxxx
may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company or Xxxxxxxx, as the case may be,
is not required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company or Xxxxxxxx, as the case may be, with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit or cause to be transmitted by mail to all Holders, as
their names and addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company or Xxxxxxxx, as the case may be,
pursuant to Subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.
(I) The Company shall not, in a single transaction or a series of
transactions, consolidate with or merge into any other Person or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
assets (with or without giving effect to the Parent Preferred) to any Person or
adopt a plan of liquidation, and the Company shall not, in
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a single transaction or a series of transactions, permit any Person to
consolidate with, merge into or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its assets (with or without
giving effect to the Parent Preferred) to the Company unless:
(a) either (i) the Company is the survivor of such merger or
consolidation or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that acquires by
sale, assignment, conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety or in the case of a plan of liquidation,
the Person to which assets of the Company have been transferred, shall be a
corporation, partnership, limited liability corporation or trust organized and
existing under the laws of the United States or any State thereof or the
District of Columbia; and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
(including any Additional Interest) on all the KDSM Senior Debentures and the
performance or observance of every covenant of this Indenture, on the part of
the Company to be performed or observed;
(b) the KDSM Senior Debentures shall be converted into or exchanged
for and shall become obligations of such successor, transferee or resulting
Person, having in respect of such successor, transferee or resulting Person the
same powers, preferences and relative participating, optional or other special
rights and the qualifications, limitations or restrictions thereon, that the
KDSM Senior Debentures had immediately prior to such transaction;
(c) immediately after giving effect to such transaction and the use of
proceeds therefrom (on a pro forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such transaction), the
Consolidated Net Worth of the surviving entity shall equal or exceed the
Consolidated Net Worth of the Company immediately prior to such transaction;
(d) immediately after giving effect to such transaction on a pro forma
basis, the Cumulative Operating Cash Flow for the four most recently completed
fiscal quarters for the surviving entity shall equal or exceed the Cumulative
Operating Cash Flow for the Company for such four-quarter period; and
(e) the Company has delivered to the Trustee prior to the consummation
of the proposed transaction an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer complies with this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied; provided that the restrictions set forth in (I)
above shall not apply to any Asset Transfer Transaction, which transaction shall
be permitted under this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties
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and assets of one or more Subsidiaries of the Company, the Capital Stock of
which constitutes all or substantially all of the properties or assets of the
Company, will be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(II) If the Guarantee has become effective pursuant to Article
Thirteen, Xxxxxxxx shall not, in a single transaction or series of transactions,
consolidate with or merge into any other Person or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets
(with or without giving effect to the Parent Preferred) to any Person or adopt a
plan of liquidation, and Xxxxxxxx shall not, in a single transaction or a series
of transactions, permit any Person to consolidate with, merge into or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its assets (with or without giving effect to the Parent Preferred) to the
Company, unless:
(a) either (i) Xxxxxxxx is the survivor of such merger or
consolidation or (ii) the Person (if other than Xxxxxxxx) formed by such
consolidation or into which Xxxxxxxx is merged or the Person that acquires by
sale, assignment, conveyance, transfer or lease the properties and assets of
Xxxxxxxx substantially as an entirety or in the case of a plan of liquidation,
the Person to which assets of Xxxxxxxx have been transferred, shall be a
corporation, partnership, limited liability company or trust organized and
existing under the laws of the United States or any State thereof or the
District of Columbia; and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the obligations of Xxxxxxxx, if any, under this Indenture;
(b) the Guarantee, if any, shall be converted into or exchanged for
and shall become obligations of such successor, transferee or resulting Person,
having in respect of such successor, transferee or resulting Person the same
powers, preferences and relative participating, optional or other special rights
and the qualifications, limitations or restrictions thereon, that the KDSM
Senior Debentures had immediately prior to such transaction;
(c) immediately after giving effect to such transaction and the use of
proceeds therefrom (on a pro forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such transaction), the
Consolidated Net Worth of the surviving entity shall equal or exceed the
Consolidated Net Worth of Xxxxxxxx immediately prior to such transaction;
(d) immediately after giving effect to such transaction on a pro forma
basis, the Cumulative Operating Cash Flow for the four most recently completed
fiscal quarters for the surviving entity shall equal or exceed the Cumulative
Operating Cash Flow for Xxxxxxxx for such four-quarter period; and
(e) Xxxxxxxx has delivered to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer complies with this
Indenture and that all conditions
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precedent in this Indenture relating to such transaction have been satisfied.For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
Xxxxxxxx, the Capital Stock of which constitutes all or substantially all of the
properties or assets of Xxxxxxxx, will be deemed to be the transfer of all or
substantially all of the properties and assets of Xxxxxxxx.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company or Xxxxxxxx in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or Xxxxxxxx, as
the case may be, is merged or the successor Person to which such sale,
assignment, conveyance, transfer, lease or disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or Xxxxxxxx, as the case may be, under this Indenture, the KDSM Senior
Debentures and/or such Guarantee, as the case may be, with the same effect as if
such successor had been named as the Company or Xxxxxxxx, as the case may be,
herein, in the KDSM Senior Debentures and/or in such Guarantee, as the case may
be. When a successor assumes all the obligations of its predecessor under this
Indenture, the KDSM Senior Debentures or the Guarantees, as the case may be, the
predecessor shall be released from those obligations; provided that in the case
of a transfer by lease, the predecessor shall not be released from the payment
of principal and interest on the KDSM Senior Debentures or the Guarantees, as
the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company and Xxxxxxxx, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto or agreements or
other instruments with respect to this Indenture, in form and substance
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company,
Xxxxxxxx or any other obligor upon the KDSM Senior Debentures, and the
assumption by any such successor of the covenants of the Company or Xxxxxxxx or
obligor herein and in the KDSM Senior Debentures and in any Guarantee, in each
case in compliance with the provisions of this Indenture;
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(b) to add to the covenants of the Company, Xxxxxxxx or any other
obligor upon the KDSM Senior Debentures for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company, Xxxxxxxx or any
other obligor upon the KDSM Senior Debentures, as applicable, herein, in the
KDSM Senior Debentures or in any Guarantee;
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
in any Guarantee, or to make any other provisions with respect to matters or
questions arising under this Indenture, the KDSM Senior Debentures or any
Guarantee; provided that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(d) to comply with the requirements of the Commission in order to
effect (if necessary) or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a guarantor pursuant to the requirements of Section 1010;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security for
the payment and performance of the Indenture Obligations, in any property or
assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise;
(h) to provide for uncertificated KDSM Senior Debentures in place of
or in addition to certificated KDSM Senior Debentures; or(i) to cause the
Guarantee provided for in Article Thirteen to become effective if the conditions
to effectiveness have been met.
Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding KDSM Senior Debentures, by Act of
said Holders delivered to the Company, and the Trustee, the Company, and
Xxxxxxxx (if a party thereto) when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to this Indenture in form and
substance satisfactory to the Trustee for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture, the KDSM Senior Debentures or any Guarantee; provided, however, that
no such supplemental indenture, agreement or instrument shall, without the
consent of the Holder of each Outstanding KDSM Senior Debenture affected
thereby:
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(a) change the Stated Maturity of the principal of, or any installment
of interest on, any KDSM Senior Debenture, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or extend the time of payment of interest thereon or change
the place or coin or currency in which the principal of any KDSM Senior
Debenture or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date);
(b) amend, change or modify the obligation of the Company (i) to make
and consummate a Change of Control Offer under certain circumstances in the
event of a Change of Control in accordance with Section 1016, (ii) to cause the
Parent Preferred to be redeemed in accordance with Section 1020, (iii) to use
the proceeds of a redemption of the Parent Preferred to redeem a Like Amount of
(as defined in the Articles Supplementary) KDSM Senior Debentures, or (iv) not
to grant any Liens with respect to the Parent Preferred in accordance with
Section 1021, including, in the case of (i), (ii), (iii) or (iv), amending,
changing or modifying any definitions with respect thereto;
(c) reduce the percentage in principal amount of the Outstanding KDSM
Senior Debentures, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture or with
respect to any Guarantee;
(d) modify any of the provisions of this Section or Sections 513 or
1023, except to increase the percentage in principal amount of the Outstanding
KDSM Senior Debentures, the consent of whose Holders is required for any such
actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each KDSM Senior
Debenture affected thereby;
(e) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or Xxxxxxxx of any of its rights and
obligations under this Indenture; or(f) amend or modify any of the provisions of
this Indenture relating to the subordination of the KDSM Senior Debentures or
any Guarantee in any manner adverse to the Holders of the KDSM Senior Debentures
or any Guarantee.
Upon the written request of the Company and Xxxxxxxx, accompanied by a
copy of a Board Resolution authorizing the execution of any such supplemental
indenture or Guarantee, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall, subject to Section 903, join
with the Company and each Xxxxxxxx in the execution of such supplemental
indenture or Guarantee.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or Guarantee
or agreement or
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instrument relating to any such Guarantee, but it shall be sufficient if such
Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 602 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture, agreement or instrument is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture, agreement or instrument which affects the
Trustee's own rights, duties or immunities under this Indenture, the Guarantees
or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of KDSM Senior Debentures theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in KDSM Senior Debentures to Supplemental
Indentures.
KDSM Senior Debentures authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new KDSM Senior Debentures so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any such supplemental indenture
may be prepared and executed by the Company and Xxxxxxxx and authenticated and
delivered by the Trustee in exchange for Outstanding KDSM Senior Debentures.
ARTICLE TEN
COVENANTS
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Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of, premium, if
any, and interest on the KDSM Senior Debentures in accordance with the terms of
the KDSM Senior Debentures and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency where KDSM Senior
Debentures may be presented or surrendered for payment. The Company also will
maintain an office or agency where KDSM Senior Debentures may be surrendered for
registration of transfer, redemption or exchange and where notices and demands
to or upon the Company in respect of the KDSM Senior Debentures and this
Indenture may be served. The Company hereby designates the Corporate Trust
Office of the Trustee as such office for purposes of the prior two sentences.
The Company will give prompt written notice to the Trustee of the location and
any change in the location of any such offices or agencies. If at any time the
Company shall fail to maintain any such required offices or agencies or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the office of the agent
of the Trustee described above and the Company hereby appoints such agent as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies where the KDSM Senior Debentures may be presented or surrendered for
any or all such purposes, and may from time to time rescind such designation.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such office or
agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, premium, if any, or interest on
any of the KDSM Senior Debentures, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act. If the Company is not acting as
Paying Agent, the Company will, before each due date of the principal of,
premium, if any, or interest on any KDSM Senior Debentures, deposit with a
Paying Agent a sum in same day funds sufficient to pay the principal, premium,
if any, or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act. If the Company is not acting as
Paying Agent, the Company will cause each Paying Agent other than the Trustee to
execute and
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deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on KDSM Senior Debentures in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or Xxxxxxxx
(or any other obligor upon the KDSM Senior Debentures) in the making of any
payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including each
Xxxxxxxx, upon the KDSM Senior Debentures or the property of the Company or of
such other obligor or their creditors, the Trustee shall serve as the Paying
Agent.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any KDSM Senior Debenture and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall promptly be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such KDSM
Senior Debenture shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in The New York Times and
The Wall Street
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Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will promptly be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and provided,
further, that the foregoing shall not prohibit a sale, transfer or conveyance of
a Subsidiary or any of its assets in compliance with the terms of this
Indenture.
Section 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
on or before the date the same shall become due and payable, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary shown to be due on any return of the Company or any Subsidiary or
otherwise assessed or upon the income, profits or property of the Company or any
Subsidiary if failure to pay or discharge the same could reasonably be expected
to have a material adverse effect on the ability of the Company to perform its
obligations hereunder and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary, except for any Lien permitted to be incurred under
Section 1012 if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and in respect of which appropriate reserves (in the good
faith judgment of management of the Company) are being maintained in accordance
with generally accepted accounting principles consistently applied.
Section 1006. Maintenance of Properties.
The Company will cause all material properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any
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Subsidiary to be maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
consistent with sound business practice and necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not reasonably expected to
have a material adverse effect on the ability of the Company to perform its
obligations hereunder.
Section 1007. Insurance.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured, with insurers believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
Section 1008. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any of the Company's Junior Securities (other than
dividends or distributions payable solely in Junior Securities);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any Junior Securities or warrants, rights or
options to acquire Junior Securities (except Junior Securities held by
the Company or a Wholly Owned Subsidiary of the Company); or
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund or maturity, any Subordinated
Indebtedness;
(iv) declare or pay any dividend or distribution on any Equity
Interests of any Subsidiary to any Person (other than the Company or
any of its Wholly Owned Subsidiary of the Company);
(v) incur, create, assume any guarantee of Indebtedness of any
Affiliate (other than a Wholly Owned Subsidiary of the Company);
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(vi) make any Investment in any Person (other than any Permitted
Investments).
(any of the foregoing payments described in clauses (i) through (vi),
collectively, "Restricted Payments") unless, after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors of Xxxxxxxx, whose determination
shall be conclusive and evidenced by a board resolution), (i) there shall not
have occurred any event that with the giving of notice or the lapse of time, or
both, would constitute an Event of Default under this Indenture, (ii) the
Company shall not have given notice of its election of an Extension Period as
provided in this Indenture (which notice shall not have been rescinded) and such
Extension Period shall be continuing and the Company shall not have failed to
make any interest payment on the KDSM Senior Debentures (whether or not as a
result of an Extension Period) and such failure shall be continuing and (iii)
the aggregate amount of all Restricted Payments made after the date of this
Indenture does not exceed an amount equal to the Company's Cumulative Operating
Cash Flow, plus, to the extent not included in the Cumulative Operating Cash
Flow, Cumulative Parent Preferred Dividends, less the Company's Cumulative
Consolidated Interest Expense. Notwithstanding the foregoing, the foregoing
provisions shall not prohibit an Asset Transfer Transaction; provided that any
Restricted Payment made in connection with an Asset Transfer Transaction shall
be considered in making the calculation of Restricted Payments in the prior
sentence with respect to any future transaction.
Section 1009. Limitation on Indebtedness.
The Company will not and will not permit any of its Subsidiaries to
create, issue, incur, assume, or directly or indirectly to guarantee or
otherwise in any manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Indebtedness) except that the Company may incur
Indebtedness if the Debt to Operating Cash Flow Ratio of the Company and its
Subsidiaries at the time of the incurrence of such Indebtedness after giving pro
forma effect thereto, is 4 to 1 or less. The foregoing limitation will not apply
to the incurrence of (i) Indebtedness pursuant to the KDSM Senior Debentures,
(ii) trade credit incurred in the ordinary course of business, (iii)
Indebtedness of the Company represented by Capital Lease Obligations or Purchase
Money Obligations or Indebtedness incurred for working capital purposes in an
aggregate principal amount at any one time outstanding not to exceed $5 million,
(iv) guarantees by any Subsidiary of the Company made in accordance with Section
1010, and (v) obligations under the Expense Agreement.
Section 1010. Limitation on Issuances of Guarantees of Indebtedness.
The Company will not permit any Subsidiary, directly or indirectly, to
guarantee, assume or in any other manner become liable with respect to any
Indebtedness unless such Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a Guarantee of the KDSM
Senior Debentures, on the same terms as the
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guarantee of such Indebtedness except that if such Indebtedness is by its terms
expressly subordinated to the KDSM Senior Debentures, any such assumption,
guarantee or other liability of such Subsidiary with respect to such
Indebtedness shall be subordinated to such Subsidiary's Guarantee of the KDSM
Senior Debentures at least to the same extent as such Indebtedness is
subordinated to the KDSM Senior Debentures.
Section 1011. Limitation on Transactions with Affiliates.
The Company will not and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Company (other than the Company or a Wholly Owned Subsidiary of the Company)
unless (a) such transaction or series of transactions is in writing on terms
that are no less favorable to the Company or such Subsidiary, as the case may
be, than would be available in a comparable transaction in arm's-length dealings
with an unrelated third party and (b) (i) with respect to any transaction or
series of transactions involving aggregate payments in excess of $500,000, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (a) above and
such transaction or series of related transactions has been approved by a
majority of the members of the Board of Directors of the Company (and approved
by a majority of Independent Directors of the Company or, in the event there is
only one such Independent Director, by such Independent Director) and (ii) with
respect to any transaction or series of transactions involving aggregate
payments in excess of $1,000,000, an opinion as to the fairness to the Company
or such Subsidiary from a financial point of view issued by an investment
banking or appraisal firm of national standing. Notwithstanding the foregoing,
this provision will not apply to (A) any transaction with an officer or director
of the Company entered into in the ordinary course of business (including
compensation or employee benefit arrangements with any officer or director of
the Company), (B) any transaction entered into by the Company or one of its
Wholly Owned Subsidiaries with a Wholly Owned Subsidiary of the Company, (C)
transactions in existence on the date of this Indenture and (D) any Asset
Transfer Transaction.
Section 1012. Limitation on Liens.
The Company will not, and will not permit any Subsidiary of the
Company to, directly or indirectly, create, incur or affirm any Lien of any kind
upon any of its property or assets (including any intercompany notes), now owned
or acquired after the date of this Indenture, or any income or profits
therefrom, excluding, however, from the operation of the foregoing any of the
following:
(a) any Lien existing as of the date of this Indenture;
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(b) any Lien arising by reason of: (i) any judgment, decree or order
of any court, so long as such Lien is adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired; (ii)
taxes not yet delinquent or which are being contested in good faith; (iii)
security for payment of workers' compensation or other insurance; (iv) good
faith deposits in connection with tenders, leases, or contracts (other than
contracts for the payment of money); (v) zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Subsidiary
thereof or the value of such property for the purpose of such business; (vi)
deposits to secure public or statutory obligations, or in lieu of surety or
appeal bonds; and (vii) operation of law in favor of mechanics, materialmen,
laborers, employees or suppliers, incurred in the ordinary course of business
for sums which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof;
(c) any Liens securing Purchase Money Obligations or Capital Lease
Obligations incurred in accordance with this Indenture; and
(d) any extension, renewal, refinancing or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (c) so long as
the amount of security is not increased thereby.
Section 1013. Limitation on Sale of Assets.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, consummate an Asset Sale unless the Company or such
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the Fair Market Value of the Equity Interests or assets sold as determined in
good faith by the Board of Directors of the Company and evidenced in a board
resolution, except in connection with an Asset Transfer Transaction.
Section 1014. Impairment of Security Interest.
The Company will not, and will not permit any of its Subsidiaries to,
take or omit to take any action which would have the result of adversely
affecting or impairing the security interests with respect to the Collateral in
contravention of this Indenture, except as required by applicable law and except
that, in accordance with the Pledge Agreement, Collateral consisting of shares
of Parent Preferred may be released simultaneously with the payment to
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the holders of Parent Preferred in connection with the redemption of shares of
Parent Preferred, and the Company shall not (and shall cause its Subsidiaries
not to) grant to, or suffer to exist in favor of, any Person, any interest
whatsoever in the Collateral except as permitted by the Collateral Documents or
this Indenture. The Company will not, and will not permit any of its
Subsidiaries to, enter into any agreement or instrument that by its terms
expressly requires that the proceeds received from the sale of any Collateral by
the Company be applied to repay, redeem or otherwise retire any Indebtedness of
any Person other than this Indenture.
Section 1015. Provision of Financial Statements and Reports.
Whether or not Xxxxxxxx or the Company is subject to Section 13(a) or
15(d) of the Exchange Act, the Company will send (or will cause to be sent) to
the holders of the KDSM Senior Debentures copies of the annual reports,
quarterly reports and other documents which Xxxxxxxx would have been required to
file with the Commission pursuant to such Sections 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. The Company will also in any event
(x) within 15 days of each Required Filing Date transmit by mail to all Holders
of the KDSM Senior Debentures, 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
Company's cost. Any such documents sent to the holders of the KDSM Senior
Debentures shall also include financial information regarding the Company to the
extent information regarding the Company would be required to be included in a
registration statement relating to the Preferred Securities or the KDSM Senior
Debentures, if such securities were being issued to the public. If the Trust is
the sole holder of the KDSM Senior Debentures, the Trustees of the Trust will
cause the reports delivered to the Trust pursuant to this paragraph to be
promptly delivered to the holders of the Preferred Securities.
Section 1016. Purchase of KDSM Senior Debentures upon a Change of
Control.
(a) Subject to the following sentence, if a Change of Control shall
occur at any time, then each Holder shall have the right to require that the
Company purchase such Holder's KDSM Senior Debentures in whole or in part in
integral multiples of $100, at a redemption price (the "Change of Control
Purchase Price") in cash in an amount equal to 101% of the principal amount of
such KDSM Senior Debentures, plus accrued and unpaid interest, if any, to the
date of purchase (the "Change of Control Purchase Date"), pursuant to
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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 KDSM
Senior Debentures shall not have the right to cause the Company to redeem or
repurchase KDSM Senior Debentures upon a Change of Control under any
circumstances unless all of the Existing Notes and all Indebtedness under the
Bank Credit Agreement is repaid, redeemed as repurchased and all Indebtedness
under the Bank Credit Agreement is repaid, redeemed or repurchased, all of the
commitments and letters of credit issued under the Bank Credit Agreement are
terminated and all interest rate protection agreements entered into between
Xxxxxxxx and any lenders under the Bank Credit Agreement are terminated as a
result of such Change of Control, or 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 said commitments, letters of credit and interest rate protection
agreements are terminated or 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 shall have occurred.
(b) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, within 30 days
following any Change of Control, the Company shall notify the Trustee thereof
and give written notice (a "Change of Control Purchase Notice") of such Change
of Control to each Holder 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 Company to
repurchase such Holder's KDSM Senior Debentures 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) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company
and Xxxxxxxx, the most recent subsequently filed Quarterly Report on
Form 10-Q, as applicable, and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report (or in the event the
Company is not required to prepare any of the foregoing Forms, the
comparable information required to be prepared by the Company and
Xxxxxxxx pursuant to Section 1015), (ii) a description of material
developments in the Company's and Xxxxxxxx'x business subsequent to
the date of the latest of such reports and (iii) such other
information, if any, concerning the business of the Company and
Xxxxxxxx which the Company in good faith believes will enable such
Holders to make an informed investment decision;
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(4) that the Change of Control Offer is being made pursuant to
this Section 1016(a) and that all KDSM Senior Debentures properly
tendered pursuant to the Change of Control Offer will be accepted for
payment at the Change of Control Purchase Price;
(5) 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;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the offices
or agencies referred to in Section 1002;
(8) that KDSM Senior Debentures must be surrendered on or prior
to the Change of Control Purchase Date to the Paying Agent at the
office of the Paying Agent or to an office or agency referred to in
Section 1002 to collect payment;
(9) that the Change of Control Purchase Price for any KDSM
Senior Debenture which has been properly tendered and not withdrawn
will be paid promptly following the Change of Control Offer Purchase
Date;
(10) the procedures for withdrawing a tender of KDSM Senior
Debentures and Change of Control Purchase Notice;
(11) that any KDSM Senior Debenture not tendered will continue
to accrue interest; and
(12) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any KDSM Senior Debenture accepted
for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date.
(c) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, upon receipt by
the Company of the proper tender of KDSM Senior Debentures, the Holder of the
KDSM Senior Debenture in respect of which such proper tender was made shall
(unless the tender of such KDSM Senior Debenture is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such KDSM Senior Debenture. Upon surrender of any such KDSM
Senior Debenture for purchase in accordance with the foregoing provisions, such
KDSM Senior Debenture shall be paid by the Company at the Change of Control
Purchase Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be payable
to the
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Holders of such KDSM Senior Debentures, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 309. If any KDSM Senior Debenture tendered for
purchase shall not be so paid upon surrender thereof, the principal thereof (and
premium, if any, thereon) shall, until paid, bear interest from the Change of
Control Purchase Date at the rate borne by such KDSM Senior Debenture. Holders
electing to have KDSM Senior Debentures purchased will be required to surrender
such KDSM Senior Debentures to the Paying Agent at the address specified in the
Change of Control Purchase Notice at least two Business Days prior to the Change
of Control Purchase Date. Any KDSM Senior Debenture that is to be purchased only
in part shall be surrendered to a Paying Agent at the office of such Paying
Agent (with, if the Company, the Security Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Security Registrar or the Trustee, as the case may be, duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such KDSM Senior Debenture, without service charge, one
or more new KDSM Senior Debentures of any authorized denomination as requested
by such Holder in an aggregate principal amount equal to, and in exchange for,
the portion of the principal amount of the KDSM Senior Debenture so surrendered
that is not purchased.
(d) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, the Company shall
(i) not later than the Change of Control Purchase Date, accept for payment
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 KDSM Senior Debentures
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 KDSM Senior
Debentures or portions thereof accepted for payment by the Company. 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 KDSM
Senior Debentures purchased from each such Holder, and the Company shall execute
and the Trustee shall promptly authenticate and mail or deliver to such Holders
a new KDSM Senior Debenture equal in principal amount to any unpurchased portion
of the KDSM Senior Debenture surrendered. Any KDSM Senior Debentures not so
accepted shall be promptly mailed or delivered by the Paying Agent at the
Company's expense to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on the Change of Control Purchase Date.
For purposes of this Section 1016, the Company shall choose a Paying Agent which
shall not be the Company.
(e) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, a Change of
Control
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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 KDSM Senior Debenture to
which such Change of Control Purchase Notice relates, by means of a written
notice of withdrawal delivered by the Holder to the Paying Agent at the office
of the Paying Agent or to the office or agency referred to in Section 1002 to
which the related Change of Control Purchase Notice was delivered not later than
three Business Days prior to the Change of Control Purchase Date specifying, as
applicable:
(1) the name of the Holder;
(2) the certificate number of the KDSM Senior Debenture in
respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the KDSM Senior Debenture (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 principal amount, if any, of such KDSM Senior Debenture
(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 Company.
(f) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, subject to
applicable escheat laws, as provided in the KDSM Senior Debentures, the Trustee
and the Paying Agent shall return to the Company 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 Company
pursuant to clause (ii) of paragraph (d) above exceeds the aggregate Change of
Control Purchase Price of the KDSM Senior Debentures or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Change of Control Purchase Date the Trustee shall return any
such excess to the Company together with interest, if any, thereon.
(g) If the Holders shall have the right to cause the Company to redeem
or repurchase KDSM Senior Debentures upon a Change of Control, the Company 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.
Section 1017. Ownership and Existence of Trust.
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Subject to Article Eight, the Company shall at all times own 100% of
the Common Securities of the Trust. The Company shall not voluntarily dissolve,
wind-up or terminate the Trust, except in the circumstances permitted by the
Trust Agreement. The Company shall use its reasonable efforts, consistent with
the terms and provisions of the Trust Agreement, to cause the Trust to remain a
business trust and otherwise not to be classified a.s an association taxable as
a corporation for United States federal income tax purposes.
Section 1018. Ownership of the Company.
Subject to Article Eight, the Company hereby covenants that Xxxxxxxx
shall at all times, directly or indirectly, own all of the Capital Stock of the
Company.
Section 1019. Application of Dividends and Redemption Proceeds.
(a) The Company shall promptly, but in no event later than the
applicable Interest Payment Date make interest payments on the KDSM Senior
Debentures if the Company receives payments on the Parent Preferred to the
extent necessary to pay any and all amounts due and owing under the KDSM Senior
Debentures whether or not an Extension Period is continuing, except that the
Company may defer interest payments for one quarterly period regardless of its
receipt of dividends on the Parent Preferred.
(b) The Company shall promptly apply the proceeds received as a result
of the redemption of the Parent Preferred to the redemption of the KDSM Senior
Debentures.
Section 1020. Change of Control Offer under Parent Preferred.
Upon the occurrence of a Change Of Control with respect to Xxxxxxxx
resulting in Xxxxxxxx making a Change of Control Offer under the terms of the
Parent Preferred to purchase the Parent Preferred, the Company shall timely
elect to have redeemed, and shall tender for redemption, an aggregate amount of
Parent Preferred equal to the Liquidation Value of the Preferred Securities
which holders of Preferred Securities elect to tender for redemption to the
Trust as a result of such Change of Control.
Section 1021. Limitation on Liens on Parent Preferred.
The Company shall not, directly or indirectly, sell, offer to sell,
grant any option with respect to, pledge or incur any Liens with respect to, the
Parent Preferred other than as permitted by the Collateral Documents.
Section 1022. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before a date not
more than 60 days after the end of each fiscal quarter and not more than 120
days after the end of each
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fiscal year of the Company ending after the date hereof, a written statement
signed by two executive officers of the Company, one of whom shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company, stating whether or not, after a review of the activities
of the Company during such year or such quarter and of the Company's performance
under this Indenture, to the best knowledge, based on such review, of the
signers thereof, the Company has fulfilled all its obligations and is in
compliance with all conditions and covenants under this Indenture throughout
such year or quarter, as the case may be, and, if there has been a Default
specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default, the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission followed by hard copy an Officers' Certificate
specifying such Default, Event of Default, notice or other action within five
Business Days of its occurrence.
Section 1023. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006 through 1015, 1019(a) and 1021,
if, before or after the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the KDSM Senior Debentures at the time
Outstanding shall, by Act of such Holders, waive such compliance in such
instance with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF KDSM SENIOR DEBENTURES
Section 1101. Rights of Redemption.
(a) At any time on or after March 15, 2002, the KDSM Senior Debentures
may be redeemed at the election of the Company, in whole or in part, subject to
the conditions, and at the Redemption Price, specified in the form of KDSM
Senior Debenture set forth in Section 203, together with accrued and unpaid
interest, if any, to the Redemption Date.
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(b) At any time on or prior to March 15, 2000, the Company may redeem
up to $66,666,666 of the original principal amount of KDSM Senior Debentures
with the net proceeds of one or more redemptions of the Parent Preferred (which
will have been redeemed from the proceeds of one or more Public Equity Offerings
of Xxxxxxxx) subject to the conditions specified in the form of KDSM Senior
Debenture set forth in Section 203, at a Redemption Price of 111.625% of the
aggregate principal amount, together with accrued and unpaid interest, if any,
to the Redemption Date; provided, that after any such redemption at least
$139,333,334 principal amount of the KDSM Senior Debentures remains outstanding.
(c) If a Tax Event or Investment Company Act Event shall occur and be
continuing, the Company may redeem the KDSM Senior Debentures, in whole or in
part, subject to the conditions and at the Redemption Price specified in the
form of KDSM Senior Debenture in Section 203, together with accrued and unpaid
interest, if any, to the Redemption Date.
Section 1102. Applicability of Article.
Redemption of KDSM Senior Debentures at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any KDSM Senior Debentures
pursuant to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of KDSM Senior Debentures to be redeemed.
Section 1104. Selection by Trustee of KDSM Senior Debentures to Be
Redeemed.
If less than all the KDSM Senior Debentures are to be redeemed, the
particular KDSM Senior Debentures or portions thereof to be redeemed shall be
selected not more than 30 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, pro rata, by
lot or such other method as the Trustee shall deem fair and reasonable, and the
amounts to be redeemed may be equal to $100 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the KDSM Senior Debentures selected for redemption and,
in the case of any KDSM Senior Debentures selected for partial redemption, the
principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of KDSM Senior Debentures shall
relate, in the case of any KDSM Senior Debenture redeemed or to be redeemed only
in part, to the portion of the principal amount of such KDSM Senior Debenture
which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given 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 KDSM Senior Debentures to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding KDSM Senior Debentures are to be
redeemed, the identification of the particular KDSM Senior Debentures to be
redeemed;
(d) in the case of a KDSM Senior Debenture to be redeemed in part, the
principal amount of such KDSM Senior Debenture to be redeemed and that after the
Redemption Date upon surrender of such KDSM Senior Debenture, new KDSM Senior
Debenture or KDSM Senior Debentures in the aggregate principal amount equal to
the unredeemed portion thereof will be issued;
(e) that KDSM Senior Debentures called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such KDSM Senior Debenture or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such KDSM Senior Debentures are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such KDSM Senior Debentures.
Notice of redemption of KDSM Senior Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
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The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice to any Holder of any KDSM
Senior Debenture designated for redemption as a whole or in part, or any defect
in any such notice, shall not affect the validity of the proceedings for the
redemption of any other KDSM Senior Debenture.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in same day funds sufficient to pay the Redemption Price of and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the KDSM Senior Debentures or portions thereof which are to be redeemed on that
date. When the Redemption Date falls on an Interest Payment Date, payments of
interest due on such date are to be paid as provided hereunder as if no such
redemption were occurring.
Section 1107. KDSM Senior Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the KDSM Senior
Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such KDSM Senior Debentures shall cease to bear interest. Upon
surrender of any such KDSM Senior Debenture for redemption in accordance with
said notice, such KDSM Senior Debenture shall be paid by the Company at the
Redemption Price together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such KDSM Senior
Debentures, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 309.If any KDSM Senior Debenture called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate borne by
such KDSM Senior Debenture.
Section 1108. KDSM Senior Debentures Redeemed or Purchased in Part.
Any KDSM Senior Debenture which is to be redeemed or purchased only in
part shall be surrendered to the Paying Agent at the office or agency maintained
for such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such KDSM Senior
Debenture without
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service charge, a new KDSM Senior Debenture or KDSM Senior Debentures, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the KDSM Senior Debenture so surrendered that is not redeemed or purchased.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of KDSM Senior
Debentures herein, rights to payment including Additional Interest and Penalty
Interest and rights to replacement of stolen, lost or mutilated KDSM Senior
Debentures expressly provided for) and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) all the KDSM Senior Debentures theretofore authenticated and
delivered (other than (i) KDSM Senior Debentures which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 308 or
(ii) all KDSM Senior Debentures for whose payment United States dollars have
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for cancellation;
(b) the Company or Xxxxxxxx has paid or caused to be paid all other
sums payable hereunder by the Company or Xxxxxxxx; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that (i) all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with and (ii) such satisfaction and discharge will not result in a
breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or Xxxxxxxx is a
party or by which the Company or Xxxxxxxx is bound.
Opinions of Counsel required to be delivered under this Section may
have qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 1202 and the last paragraph of Section 1003 shall survive.
Section 1202. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars deposited with the Trustee pursuant to Section 1201 shall
be held in trust and applied by it, in accordance with the provisions of the
KDSM Senior Debentures and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
of, premium, if any, and interest on the KDSM Senior Debentures for whose
payment such United States dollars have been deposited with the Trustee.
ARTICLE THIRTEEN
GUARANTEE
Section 1301. Xxxxxxxx'x Guarantee.
(a) Xxxxxxxx'x Guarantee and the terms and conditions thereof as set
forth in this Article Thirteen are expressly conditioned upon Xxxxxxxx'x
confirmation of the effectiveness of the Guarantee pursuant to Section 1301(b)
and under no circumstances shall Xxxxxxxx be bound by any terms of this Article
Thirteen and this Guarantee until the requirements of the provisions of Section
1301(b) have been fully satisfied.
(b) Xxxxxxxx, simultaneously with the dissolution of the Trust
following a Tax Event, upon effectiveness, absolutely, unconditionally and
irrevocably guarantees, to the Trustee and the Holders, as if Xxxxxxxx were the
principal debtor, the punctual payment on a junior subordinated basis as
described in this Article Thirteen when due of all Indenture Obligations (which
for purposes of this Guarantee shall also be deemed to include all commissions,
fees, charges, costs and other expenses (including reasonable legal fees and
disbursements of one counsel in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances) arising out of or incurred by the Trustee
or the Holders in connection with the enforcement of this Guarantee); provided,
Xxxxxxxx confirms the effectiveness of the Guarantee at the time of distribution
by way of a supplemental indenture to this Indenture (which it shall not do if
such guarantee is not permitted under the terms of the Existing Notes or the
Bank Credit Agreement). Notwithstanding anything to the contrary, this Guarantee
does not constitute a guarantee of performance of any non-payment covenants
under this Indenture.
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Section 1302. Continuing Guarantee; No Right of Set-Off; Independent
Obligation.
Subject to the Guarantee provided by this Article Thirteen being
deemed effective pursuant to Section 1301:
(a) This Guarantee shall (upon effectiveness) be a continuing
guarantee of the payment and performance of all Indenture Obligations and shall
remain in full force and effect until the payment in full of all of the
Indenture Obligations and shall apply to and secure any ultimate balance due or
remaining unpaid to the Trustee or the Holders; and this Guarantee shall not be
considered as wholly or partially satisfied by the payment or liquidation at any
time or from time to time of any sum of money for the time being due or
remaining unpaid to the Trustee or the Holders. Xxxxxxxx covenants and agrees to
comply with all obligations, covenants, agreements and provisions applicable to
it in this Indenture (upon the Guarantee's effectiveness). Without limiting the
generality of the foregoing, Xxxxxxxx'x liability shall extend to all amounts
which constitute part of the Indenture Obligations and would be owed by the
Company under this Indenture and the KDSM Senior Debentures but for the fact
that they are unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Xxxxxxxx hereby guarantees (upon the Guarantee's effectiveness)
that the Indenture Obligations will be paid on a junior subordinated basis to
the Trustee without set-off or counterclaim or other reduction whatsoever
(whether for taxes, withholding or otherwise) in lawful currency of the United
States of America.
(c) Xxxxxxxx guarantees (upon the Guarantee's effectiveness) that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the holders of the
KDSM Senior Debentures.
(d) Xxxxxxxx'x liability to pay or perform or cause the performance of
the Indenture Obligations under this Guarantee (upon the Guarantee's
effectiveness) shall arise forthwith after demand for payment or performance by
the Trustee has been given to Xxxxxxxx in the manner prescribed in Section 106
hereof.
(e) Except as provided herein, the provisions of this Article Thirteen
cover all agreements between the parties hereto relative to this Guarantee and
none of the parties shall be bound by any representation, warranty or promise
made by any Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee upon the Guarantee's
effectiveness, is delivered by Xxxxxxxx free of any conditions whatsoever and
that no representations, warranties or promises have been made to Xxxxxxxx
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any
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representations, warranties or promises now or at any time hereafter made by th
Company to Xxxxxxxx.
Section 1303. Guarantee Absolute.
Upon the Guarantee's effectiveness, the obligations of Xxxxxxxx
hereunder are independent of the obligations of the Company under the KDSM
Senior Debentures and this Indenture and a separate action or actions may be
brought and prosecuted against Xxxxxxxx whether or not an action or proceeding
is brought against the Company and whether or not the Company is joined in any
such action or proceeding. Subject to the Guarantee provided by this Article
Thirteen being deemed effective in accordance with Section 1301, the liability
of Xxxxxxxx hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of Xxxxxxxx hereunder
shall not be released, discharged, mitigated, waived, impaired or affected in
whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any
Indebtedness or other obligation of the Company or any other Person under this
Indenture or the KDSM Senior Debentures, or any agreement or instrument relating
to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend to, or
make with, the Company, Xxxxxxxx or any other Person, or any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Indenture Obligations, or any other amendment or waiver of, or any consent to or
departure from, this Indenture or the KDSM Senior Debentures, including any
increase or decrease in the Indenture Obligations;
(c) the taking of security from the Company, Xxxxxxxx or any other
Person, and the release, discharge or alteration of, or other dealing with, such
security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of Xxxxxxxx hereunder;
(e) the abstention from taking security from the Company, Xxxxxxxx or
any other Person or from perfecting, continuing to keep perfected or taking
advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any
security received from the Company, Xxxxxxxx or any other Person, and including
any other guarantees received by the Trustee;
(g) any other dealings with the Company, Xxxxxxxx or any other Person,
or with any security;
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(h) the Trustee's or the Holders' acceptance of compositions from the
Company or Xxxxxxxx;
(i) the application by the Holders or the Trustee of all monies at any
time and from time to time received from the Company, Xxxxxxxx or any other
Person on account of any indebtedness and liabilities owing by the Company or
Xxxxxxxx to the Trustee or the Holders, in such manner as the Trustee or the
Holders deem best and the changing of such application in whole or in part and
at any time or from time to time, or any manner of application of collateral, if
any, or proceeds thereof, to all or any of the Indenture Obligations, or the
manner of sale of any such collateral;
(j) the release or discharge of the Company or Xxxxxxxx of the KDSM
Senior Debentures or of any Person liable directly as surety or otherwise by
operation of law or otherwise for the KDSM Senior Debentures, other than an
express release in writing given by the Trustee, on behalf of the Holders, of
the liability and obligations of Xxxxxxxx hereunder;
(k) any change in the name, business, capital structure or governing
instrument of the Company or Xxxxxxxx or any refinancing or restructuring of any
of the Indenture Obligations;
(l) the sale of the Company's or Xxxxxxxx'x business or any part
thereof;
(m) subject to Section 1314, any merger or consolidation, arrangement
or reorganization of the Company, Xxxxxxxx, any Person resulting from the merger
or consolidation of the Company or Xxxxxxxx with any other Person or any other
successor to such Person or merged or consolidated Person or any other change in
the corporate existence, structure or ownership of the Company or Xxxxxxxx;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution,
receivership or distribution of the assets of the Company or its assets or any
resulting discharge of any obligations of the Company (whether voluntary or
involuntary) or of Xxxxxxxx or the loss of corporate existence;
(o) subject to Section 1314, any arrangement or plan of reorganization
affecting the Company or Xxxxxxxx;
(p) any other circumstance (including any statute of limitations) that
might otherwise constitute a defense available to, or discharge of, the Company
or Xxxxxxxx; or
(q) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Indenture Obligations or
the liability of the Company or any other obligor under the KDSM Senior
Debentures, in whole or in part, and any refusal
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of payment by the Trustee, in whole or in part, from any other obligor or other
guarantor in connection with any of the Indenture Obligations, whether or not
with notice to, or further assent by, or any reservation of rights against,
Xxxxxxxx.
Section 1304. Right to Demand Full Performance.
In the event of any demand for payment or performance by the Trustee
from Xxxxxxxx hereunder (after the Guarantee's effectiveness), the Trustee or
the Holders shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture Obligations
have been paid in full, and Xxxxxxxx shall continue to be liable hereunder for
any balance which may be owing to the Trustee or the Holders by the Company
under this Indenture and the KDSM Senior Debentures. The retention by the
Trustee or the Holders of any security, prior to the realization by the Trustee
or the Holders of its rights to such security upon foreclosure thereon, shall
not, as between the Trustee and Xxxxxxxx, be considered as a purchase of such
security, or as payment, satisfaction or reduction of the Indenture Obligations
due to the Trustee or the Holders by the Company or any part thereof.
Section 1305. Waivers.
(a) Upon the Guarantee's effectiveness, Xxxxxxxx expressly waives (to
the extent permitted by law) notice of the acceptance of this Guarantee and
notice of the existence, renewal, extension or the non-performance, non-payment,
or non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the KDSM Senior Debentures or any
other notice whatsoever to or upon the Company or Xxxxxxxx with respect to the
Indenture Obligations. Upon the Guarantee's effectiveness, Xxxxxxxx acknowledges
communication to it of the terms of this Indenture and the KDSM Senior
Debentures and all of the provisions therein contained and consents to and
approves the same. Upon the Guarantee's effectiveness, Xxxxxxxx expressly waives
(to the extent permitted by law) diligence, presentment, protest and demand for
payment.
(b) Without prejudice to any of the rights or recourses which the
Trustee or the Holders may have against the Company, upon the Guarantee's
effectiveness, Xxxxxxxx expressly waives (to the extent permitted by law) any
right to require the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse against
the Company, Xxxxxxxx or any other Person;
(ii) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the Holders; or
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(iii) initiate or exhaust any other remedy which the Trustee or
the Holders may have in law or equity;before requiring or becoming
entitled to demand payment from Xxxxxxxx under this Guarantee.
Section 1306. Xxxxxxxx Remains Obligated in Event the Company Is No
Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and Xxxxxxxx that if for
any reason the Company has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations owing to the Trustee or the
Holders by the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrecoverable from the Company by
operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Xxxxxxxx contained in this Article Thirteen
shall nevertheless be binding upon the Xxxxxxxx (upon the Guarantee's
effectiveness), as principal debtor, until such time as all such Indenture
Obligations have been paid in full to the Trustee and all Indenture Obligations
owing to the Trustee or the Holders by the Company have been discharged, or such
earlier time as Section 402 shall apply to the KDSM Senior Debentures and
Xxxxxxxx (upon the Guarantee's effectiveness) shall be responsible for the
payment thereof to the Trustee or the Holders upon demand.
Section 1307. Fraudulent Conveyance; Subrogation.
(a) Any term or provision of this Guarantee to the contrary
notwithstanding, the aggregate amount of the Indenture Obligations guaranteed
hereunder shall be reduced to the extent necessary to prevent this Guarantee
from violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) Xxxxxxxx hereby waives all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under federal bankruptcy law) or otherwise by reason of
any payment by it pursuant to the provisions of this Article Thirteen.
Section 1308. Guarantee Is in Addition to Other Security.
This Guarantee to the extent effective shall be in addition to and not
in substitution for any other guarantees or other security which the Trustee may
now or hereafter hold in respect of the Indenture Obligations owing to the
Trustee or the Holders by the Company and (except as may be required by law) the
Trustee shall be under no obligation to marshal in favor of Xxxxxxxx any other
guarantees or other security or any moneys or other assets which the Trustee may
be entitled to receive or upon which the Trustee or the Holders may have a
claim.
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Section 1309. Release of Security Interests.
Without limiting the generality of the foregoing and except as
otherwise provided in this Indenture, Xxxxxxxx, upon the Guarantee's
effectiveness, consents and agrees, to the fullest extent permitted by
applicable law, that the rights of the Trustee hereunder, and the liability of
Xxxxxxxx hereunder, if any, shall not be affected by any and all releases for
any purpose of any collateral, if any, from the Liens and security interests
created by any collateral document (including the Collateral Documents) and that
this Guarantee shall continue to be effective, or be reinstated, as the case may
be, in accordance with its terms if at any time any payment of any of the
Indenture Obligations is rescinded or must otherwise be returned by the Trustee
upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
all as though such payment had not been made.
Section 1310. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Thirteen and this Guarantee and no recovery or judgment
in pursuance thereof shall be a bar or defense to any further action or
proceeding which may be brought under Article Thirteen and this Guarantee by
reason of any further default or defaults under Article Thirteen and this
Guarantee or in the payment of any of the Indenture Obligations owing by the
Company.
Section 1311. Failure to Exercise Rights Shall Not Operate as a
Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, power, privilege or remedy under this
Article Thirteen and this Guarantee shall operate as a waiver thereof, nor shall
any single or partial exercise of any rights, power, privilege or remedy
preclude any other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies herein provided
for are cumulative and not exclusive of any rights or remedies provided in law
or equity.
(b) Nothing contained in this Article Thirteen shall limit the right
of the Trustee or the Holders to take any action to accelerate the maturity of
the KDSM Senior Debentures pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 1312. Trustee's Duties; Notice to Trustee.
(a) Any provision in this Article Thirteen or elsewhere in this
Indenture allowing the Trustee to request any information or to take any action
authorized by, or on behalf of Xxxxxxxx, shall be permissive and shall not be
obligatory on the Trustee except as the Holders
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may direct in accordance with the provisions of this Indenture or where the
failure of the Trustee to request any such information or to take any such
action arises from the Trustee's negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the existence,
powers or capacities of the Company, Xxxxxxxx or the officers, directors or
agents acting or purporting to act on their respective behalf.
Section 1313. Successors and Assigns.
All terms, agreements and conditions of this Article Thirteen shall
extend to and be binding upon Xxxxxxxx and its successors and permitted assigns
and shall inure to the benefit of and may be enforced by the Trustee and its
successors and assigns; provided, however, that Xxxxxxxx may not assign any of
its rights or obligations hereunder other than in accordance with Article Eight.
Section 1314. Release of Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, Xxxxxxxx shall be released from and relieved of its obligations
under this Article Thirteen, if any. Upon the delivery by the Company to the
Trustee of an Officers' Certificate and, if requested by the Trustee, an Opinion
of Counsel to the effect that the transaction giving rise to the release of this
Guarantee was made by the Company in accordance with the provisions of this
Indenture and the KDSM Senior Debentures, the Trustee shall execute any
documents reasonably required in order to evidence the release of Xxxxxxxx from
their obligations under this Guarantee. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee (if such
Guarantee was ever deemed effective), then all of the obligations of Xxxxxxxx
under this Guarantee shall be revived and reinstated as if this Guarantee had
not been terminated until such time as the Indenture Obligations are paid in
full, and Xxxxxxxx shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
Section 1315. Guarantee Subordinate to Xxxxxxxx Senior Indebtedness.
Xxxxxxxx covenants and agrees, and each Holder of a Guarantee, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Guarantee (if effective) is hereby made subordinate and subject in right
of payment as provided in this Article to the prior payment in full in cash or
Cash Equivalents or in any other form as acceptable to the holders of Xxxxxxxx
Senior Indebtedness of all Xxxxxxxx Senior Indebtedness; provided, however, that
the Indebtedness represented by this Guarantee in all respects shall rank
equally with, or prior to, all existing and future Indebtedness of Xxxxxxxx
which by its terms is pari passu with this Guarantee.
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This Article Thirteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold Xxxxxxxx Senior Indebtedness; and such provisions are made for the benefit
of the holders of Xxxxxxxx Senior Indebtedness; and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
With respect to the relative rights of Holders and holders of Xxxxxxxx
Senior Indebtedness and for the purpose of Section 1307(a), each Holder of a
KDSM Senior Debenture by his acceptance thereof acknowledges that all Xxxxxxxx
Senior Indebtedness and any guarantee by Xxxxxxxx of such Xxxxxxxx Senior
Indebtedness shall be deemed to have been incurred prior to the incurrence by
Xxxxxxxx of its liability under its Guarantee.
Section 1316. Payment Over of Proceeds upon Dissolution of Xxxxxxxx,
etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to Xxxxxxxx or to its creditors, as
such, or to its assets, or (b) any liquidation, dissolution or other winding up
of Xxxxxxxx, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of Xxxxxxxx, then and in any such
event:
(i) the holders of Xxxxxxxx Senior Indebtedness shall be
entitled to receive payment in full in cash or Cash Equivalents or in
any other form as acceptable to the holders of Xxxxxxxx Senior
Indebtedness of all amounts due on or in respect of all Xxxxxxxx
Senior Indebtedness, before the Holders of the KDSM Senior Debentures
are entitled to receive any payment or distribution of any kind or
character (excluding Permitted Xxxxxxxx Xxxxxx Securities) on account
of the Guarantee; and
(ii) any payment or distribution of assets of Xxxxxxxx of any
kind or character, whether in cash, property or securities (excluding
Permitted Xxxxxxxx Xxxxxx Securities), by set-off or otherwise, to
which the Holders or the Trustee would be entitled but for the
provisions of this Article shall be paid by the liquidating trustee or
agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Xxxxxxxx Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such
Xxxxxxxx Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the Senior
Xxxxxxxx Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or Cash Equivalents or in
any other form as acceptable to the holders of Xxxxxxxx Senior
Indebtedness of all Xxxxxxxx Senior Indebtedness remaining unpaid,
after
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giving effect to any concurrent payment or distribution to the holders
of such Xxxxxxxx Senior Indebtedness; and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any KDSM
Senior Debenture shall have received any payment or distribution of
assets of Xxxxxxxx of any kind or character, whether in cash, property
or securities, in respect of the Guarantee before all Xxxxxxxx Senior
Indebtedness is paid in full, then and in such event such payment or
distribution (excluding Permitted Xxxxxxxx Xxxxxx Securities) shall be
paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of Xxxxxxxx for
application to the payment of all Xxxxxxxx Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Xxxxxxxx Senior
Indebtedness in full in cash or Cash Equivalents or in any other form
as acceptable to the holders of Xxxxxxxx Senior Indebtedness after
giving effect to any concurrent payment or distribution to or for the
holders of Xxxxxxxx Senior Indebtedness.
The consolidation of Xxxxxxxx with, or the merger of Xxxxxxxx with or
into, another Person or the liquidation or dissolution of Xxxxxxxx following the
sale, assignment, conveyance, transfer, lease or other disposal of all or
substantially all of Xxxxxxxx'x properties or assets to another Person upon the
terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of such Xxxxxxxx for the
purposes of this Section if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of Xxxxxxxx'x properties and assets, as the case may be,
shall, as a part of such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposal comply with the conditions set forth in
Article Eight.
Section 1317. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 1316 shall be applicable, upon the occurrence of a
Payment Default, no payment (other than any payments previously made pursuant to
the provisions described in Article Four) or distribution of any assets of the
Company of any kind or character (excluding Permitted Xxxxxxxx Xxxxxx
Securities) shall be made by the Company on account of principal of, premium, if
any, or interest on, the KDSM Senior Debentures or any other Indenture
Obligations or on account of the purchase, redemption, defeasance (whether under
Section 402 or 403) or other acquisition of or in respect of the KDSM Senior
Debentures unless and until such Payment Default shall have been cured or waived
or shall have ceased to exist or the Designated Xxxxxxxx Senior Indebtedness
with respect to which such Payment Default shall have occurred shall have been
discharged or paid in full in cash or Cash Equivalents or in any other form as
acceptable to the Holders of Xxxxxxxx Senior
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Indebtedness, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 1316 shall be applicable, upon (1) the occurrence
of a Nonpayment Default and (2) receipt by the Trustee and the Company from the
representative of the holders of Designated Xxxxxxxx Senior Indebtedness (a
"Senior Representative") of written notice of such occurrence, no payment (other
than any payments previously made pursuant to the provisions described in
Article Four) or distribution of any assets of the Company of any kind or
character (excluding Permitted Xxxxxxxx Xxxxxx Securities) shall be made by the
Company on account of any principal of, premium, if any, or interest on, the
KDSM Senior Debentures Securities or any other Indenture Obligations or on
account of the purchase, redemption, defeasance or other acquisition of or in
respect of KDSM Senior Debentures for a period ("Payment Blockage Period")
commencing on the date of receipt by the Trustee of such notice unless and until
the earliest of (subject to any blockage of payments that may then or thereafter
be in effect under subsection (a) of this Section 1317) (x) 179 days having
elapsed since receipt of such written notice by the Trustee (provided any
Designated Xxxxxxxx Senior Indebtedness as to which notice was given shall
theretofore have not been accelerated), (y) the date such Non-payment Default
and all other Non-payment Defaults as to which notice is also given after such
period is initiated shall have been cured or waived or shall have ceased to
exist or the Xxxxxxxx Senior Indebtedness related thereto shall have been
discharged or paid in full in cash or Cash Equivalents or in any other form as
acceptable to the Holders of Xxxxxxxx Senior Indebtedness, or (z) the date on
which such Payment Blockage Period (and all Non-payment Defaults as to which
notice is given after such Payment Blockage Period is initiated) shall have been
terminated by written notice to the Company or the Trustee from the Senior
Representative or the holders of at least a majority of the Designated Xxxxxxxx
Senior Indebtedness that initiated such Payment Blockage Period, after which, in
each such case, the Company shall resume making any and all required payments in
respect of the KDSM Senior Debentures, including any missed payments.
Notwithstanding any other provision of this Indenture, in no event shall a
Payment Blockage Period extend beyond 179 days from the date of the receipt by
the Company or the Trustee of the notice referred to in clause (2) of this
paragraph (b) (the "Initial Blockage Period"). Any number of notices of
Non-payment Defaults may be given during the Initial Blockage Period; provided
that during any 365-day consecutive period only one Payment Blockage Period
during which payment of principal of, or interest on, the KDSM Senior Debentures
may not be made may commence and the duration of the Payment Blockage Period may
not exceed 179 days. No Non-payment Default with respect to Designated Xxxxxxxx
Senior Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period will be, or can be, made the basis
for the commencement of a second Payment Blockage Period, whether or not within
a period of 365 consecutive days, unless such default shall have been cured or
waived for a period of not less than 90 consecutive days.
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(c) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any KDSM Senior Debenture
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to a Senior
Representative of the holders of the Designated Senior Indebtedness or as a
court of competent jurisdiction shall direct.
Section 1318. Payment Permitted by Xxxxxxxx if No Default.
Nothing contained in this Article, elsewhere in this Indenture or in
any of the KDSM Senior Debentures shall prevent Xxxxxxxx, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of Xxxxxxxx referred to in Section 1316 or under the
conditions described in Section 1317, from making payments at any time of
principal of, premium, if any, or interest on the KDSM Senior Debentures.
Section 1319. Subrogation to Rights of Holders of Xxxxxxxx Senior
Indebtedness.
Subject to the payment in full of all Xxxxxxxx Senior Indebtedness in
cash or Cash Equivalents or in any other form acceptable to the holders of
Xxxxxxxx Senior Indebtedness, the Holders of the KDSM Senior Debentures shall be
subrogated to the rights of the holders of such Xxxxxxxx Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to Xxxxxxxx Senior Indebtedness until the principal of, premium, if any, and
interest on the KDSM Senior Debentures shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Xxxxxxxx Senior
Indebtedness of any cash, property or securities to which the Holders of the
KDSM Senior Debentures or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Xxxxxxxx Senior Indebtedness by Holders of the
KDSM Senior Debentures or the Trustee, shall, as among Xxxxxxxx, its creditors
other than holders of Xxxxxxxx Senior Indebtedness, and the Holders of the KDSM
Senior Debentures, be deemed to be a payment or distribution by such Xxxxxxxx to
or on account of Xxxxxxxx Senior Indebtedness.
Section 1320. Provisions Solely to Define Relative Rights.
The provisions of Sections 1315 through 1328 of this Indenture are
intended solely for the purpose of defining the relative rights of the Holders
of the KDSM Senior Debentures on the one hand and the holders of Xxxxxxxx Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the KDSM Senior Debentures is intended to or shall (a)
impair, as among Xxxxxxxx, its creditors other than holders of Xxxxxxxx Senior
Indebtedness and the Holders of the KDSM Senior Debentures, the obligation of
Xxxxxxxx, which is absolute and unconditional, to pay to the Holders of the KDSM
Senior Debentures the principal of, premium, if any, and interest on the KDSM
Senior Debentures as and when the same shall become due and payable in
accordance with their terms; or
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(b) affect the relative rights against Xxxxxxxx of the Holders of the KDSM
Senior Debentures and creditors of Xxxxxxxx other than the holders of Xxxxxxxx
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any KDSM Senior
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Xxxxxxxx Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of Xxxxxxxx
referred to in Section 1316, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 1317,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 1320(b).
Section 1321. Trustee to Effectuate Subordination.
Each Holder of a KDSM Senior Debenture by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of Xxxxxxxx whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of Xxxxxxxx owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
Section 1322. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of Xxxxxxxx Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
Xxxxxxxx or by any act or failure to act by any such holder, or by any
non-compliance by Xxxxxxxx with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this Section
and notwithstanding any other provision contained herein, the holders of
Xxxxxxxx Senior Indebtedness may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the KDSM Senior
Debentures, without incurring responsibility to the Holders of the KDSM Senior
Debentures and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the KDSM Senior
Debentures to the holders of Xxxxxxxx Senior Indebtedness, do any one or more of
the following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Xxxxxxxx Senior Indebtedness or any
instrument evidencing the same or any agreement under which Xxxxxxxx Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise
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securing Xxxxxxxx Senior Indebtedness; (3) release any Person liable in any
manner for the collection or payment of Xxxxxxxx Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against any of the Sinclairs and
any other Person; provided, however, that in no event shall any such actions
limit the right of the Holders of the KDSM Senior Debentures to take any action
to accelerate the maturity of the KDSM Senior Debentures in accordance with the
provisions set forth in Article 5 or to pursue any rights or remedies under this
Indenture or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
Section 1323. Notice to Trustee by Xxxxxxxx.
(a) Xxxxxxxx shall give prompt written notice to the Trustee of any
fact known to Xxxxxxxx which would prohibit the making of any payment to or by
the Trustee in respect of the Guarantee. Notwithstanding the provisions of this
Article or any provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee in respect of the KDSM Senior Debentures unless
and until the Trustee shall have received written notice thereof from Xxxxxxxx
or a holder of Xxxxxxxx Senior Indebtedness or any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of, premium, if any, or interest on any KDSM Senior Debenture or
any other Indenture Obligations), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Xxxxxxxx Senior Indebtedness or any trustee, fiduciary or agent
thereof, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it after
such date; nor shall the Trustee be charged with knowledge of the curing of any
such default or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and Xxxxxxxx by a Person representing himself to
be a representative of one or more holders of Designated Xxxxxxxx Senior
Indebtedness (a "Xxxxxxxx Senior Representative") or a holder of Xxxxxxxx Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a Xxxxxxxx Senior Representative or a holder of
Xxxxxxxx Senior Indebtedness (or a trustee, fiduciary or agent therefor);
provided, however, that failure to give such notice to the Company shall not
affect in any way the ability of the Trustee to rely on such notice. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Xxxxxxxx Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the
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Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Xxxxxxxx Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1324. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of Xxxxxxxx referred to in
this Article, the Trustee and the Holders of the KDSM Senior Debentures shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of KDSM Senior Debentures, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Xxxxxxxx Senior
Indebtedness and other indebtedness of Xxxxxxxx, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article; provided that the foregoing shall apply
only if such court has been fully apprised of the provisions of this Article.
Section 1325. Rights of Trustee as a Holder of Xxxxxxxx Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to Xxxxxxxx Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Xxxxxxxx Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 606.
Section 1326. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1325 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1327. No Suspension of Remedies.
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Nothing contained in this Article shall limit the right of the Trustee
or the Holders of KDSM Senior Debentures to take any action to accelerate the
maturity of the KDSM Senior Debentures pursuant to the provisions described
under Article Five and as set forth in this Indenture or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article of the holders, from time to time, of Xxxxxxxx Senior Indebtedness
to receive the cash, property or securities receivable upon the exercise of such
rights or remedies.
Section 1328. Trustee's Relation to Xxxxxxxx Senior Indebtedness.
With respect to the holders of Xxxxxxxx Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Xxxxxxxx Senior
Indebtedness shall be read into this Article against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Xxxxxxxx Senior
Indebtedness and the Trustee shall not be liable to any holder of Xxxxxxxx
Senior Indebtedness if it shall mistakenly in the absence of gross negligence or
willful misconduct pay over or deliver to Holders, the Company or any other
Person moneys or assets to which any holder of Xxxxxxxx Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.If an officer whose
signature is on this Indenture no longer holds that office at the time the
Trustee authenticates a KDSM Senior Debenture on which a Guarantee is endorsed,
such Guarantee shall be valid nevertheless.
ARTICLE FOURTEEN
SECURITY
Section 1401. Collateral Documents.
(a) In order, among other things, to secure the due and punctual
payment of the Indenture Obligations, the Company, and the Collateral Agent have
entered into, or will enter into, the Pledge Agreement, to create the security
interests thereunder and for related matters. The Company represents that it has
full corporate power and authority to grant a security interest in the property
owned by it constituting the Collateral, as and to the extent contemplated by
such Collateral Documents. The Company agrees to execute, acknowledge and
deliver to the Trustee such further instruments and to do or cause to be done
all such other acts and things, in each case as the Trustee may reasonably
request, so as to render the Collateral owned by it available for the security
and benefit of this Indenture and of the KDSM Senior Debentures, as and to the
extent contemplated by the Collateral Documents.
(b) Each Holder, by accepting a KDSM Senior Debenture, agrees to all
of the terms and provisions of the Collateral Documents, as the same may be
amended, modified or
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waived from time to time pursuant to the provisions of the Collateral Documents
and this Indenture, authorizes and directs the Trustee to enter into each of the
Collateral Documents to which it is a party and to perform its obligations and
exercise its rights thereunder in accordance therewith and herewith.
(c) In the event of a conflict between the provisions of any of the
Collateral Documents and the provisions of the Trust Indenture Act, the
provisions of the Trust Indenture Act will control.
(d) As amongst the Holders, the Collateral as now or hereafter
constituted shall be held for the equal and ratable benefit of the Holders
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for the
Indenture Obligations.
Section 1402. Recording, Deposit of Pledged Securities, Opinion of
Counsel, etc.
The Company will cause, at its own expense, this Indenture, the KDSM
Senior Debentures, the Collateral Documents, and all amendments or supplements
thereto, to be executed and delivered and registered, recorded and filed and/or
re-recorded and/or re-filed and/or renewed in such manner and in such place or
places, if any, as may be required by law or that is reasonably requested by the
Trustee or the Holders in order to preserve and protect the Liens of the
Collateral Documents and all parts of the Collateral and effectuate, preserve
and protect the security of the Holders and all rights of the Trustee and
provide the Trustee with a valid, legal and perfected security interest in favor
of the Trustee, in respect of the Collateral.
The Company shall furnish to the Trustee the opinions required by
Section 314 (b) of the Trust Indenture Act.
Section 1403. Release of Collateral.
To the extent applicable, without limitation, in connection with any
release of Collateral under the Collateral Documents, the Company shall deliver
to the Trustee the certificate or opinion, if any, required by Trust Indenture
Act ss. 314 (d) relating to the release of property or securities from the Liens
of this Indenture and the Collateral Documents dated as of a date not more than
60 calendar days prior to the date of release.
Section 1404. Trust Indenture Act Requirements.
The release of any Collateral from the terms of any of the Collateral
Documents or the release of, in whole or in part, the Liens created by any of
the Collateral Documents, will not be deemed to impair the security under this
Indenture and the Collateral Documents in contravention of the provisions of
this Indenture if and to the extent the Collateral or Liens
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are released pursuant to, and in accordance with, the applicable Collateral
Documents and pursuant to, and in accordance with, the terms hereof, including
in the event shares of Parent Preferred are released under the Collateral
Documents simultaneously with the payment to the holders of Parent Preferred in
connection with the redemption of shares of Parent Preferred. As set forth in
Section 1403, to the extent applicable, without limitation, the Company and each
obligor on the KDSM Senior Debentures shall cause Trust Indenture Act Section
314 (d) relating to the release of property or securities from the Liens of the
Collateral Documents to be complied with. Any certificate or opinion required by
Trust Indenture Act Section 314 (d) may be made by two officers of the Company,
except as otherwise provided herein or in cases in which the Trust Indenture Act
Section 314 (d) requires that such certificate or opinion be made by an
independent person.
Section 1405. Authorization of Actions to Be Taken by the Trustee
Under the Collateral Documents.
(a) The Trustee may, in its sole discretion and without the consent of
the Holders, but subject to Section 1406 and Article Six hereof, take all
actions it deems necessary or appropriate in order to (i) enforce the Collateral
Documents and (ii) collect and receive any and all amounts payable in respect of
the Indenture Obligations of the Company hereunder, in each case in accordance
with and to the extent provided in the Collateral Documents. Such actions shall
include, but not be limited to, advising, instructing or otherwise directing the
Collateral Agent in accordance with and connection with enforcing any term or
provision of the Collateral Documents.
(b) Subject to the provisions of the Collateral Documents, the Trustee
shall have power to institute and to maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Collateral Documents or this
Indenture and to preserve or protect its interests and the interests of the
Holders of the Senior Debentures in the Collateral.
Section 1406. Authorization of Receipt of Funds by the Trustee Under
the Collateral Documents.
The Trustee is authorized to receive any funds for the benefit of
Holders distributed under the Collateral Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
Section 1407. Release upon Termination of the Company's Obligations.
(a) In the event that the Company delivers an Officers' Certificate
certifying that all of the Indenture Obligations have been satisfied and
discharged by complying with the provisions of Article Eleven, Section 402 or
Section 403, the Trustee shall deliver to the Company a notice stating that the
Trustee, on behalf of the Holders, disclaims and gives up
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any and all rights it has in or to the Collateral, and any rights it has under
the Collateral Documents, and, upon and after the receipt by the Company of such
notice, the Trustee shall not be deemed to hold the security interests in the
Collateral for the benefit of the Holders.
(b) Any release of any portion of the Collateral made in compliance
with the provisions of this Section 1407 shall not be deemed to impair the
security interests in the Collateral created by the Collateral Documents in
contravention of the provisions of this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
KDSM, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
XXXXXXXX BROADCAST GROUP, INC.
By: /s/ Xxxxx X. Xxx
-----------------------------
Name: Xxxxx X. Xxx
Title: President
FIRST UNION NATIONAL BANK OF
MARYLAND, as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title:
STATE OF )
) ss.:
COUNTY OF )
On the th day of April, 1997, before me personally came Xxxxx
X. Xxx, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 X.00xx Xxxxxx, Xxxxxxxxx, XX 00000; that he is the CFO of
Xxxxxxxx Broadcast Group, Inc., the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto pursuant to
authority of the Board of Directors of such corporation.
(NOTARIAL
SEAL)
-----------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On the th day of April, 1997, before me personally came Xxxxx
X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 X.00xx Xxxxxx, Xxxxxxxxx, XX 00000; that he is the President of
KDSM, Inc., the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto pursuant to authority of the
Board of Directors of such corporation.
(NOTARIAL
SEAL)
-----------------------------------------
EXHIBIT A
[Form of Restricted Securities Transfer Certificate]
RESTRICTED SECURITIES TRANSFER CERTIFICATE
(For transfers pursuant to Section 307(a) of
the Indenture referred to below)
First Union National Bank of Maryland,
as Securities Registrar
[ ]
[ ]
Re: 11 5/8% Senior Debentures Due 2009 (the "KDSM Senior
Debentures")
Reference is made to the Indenture, dated as of March 7, 1997
(the "Indenture"), among KDSM, Inc., a Maryland corporation, Xxxxxxxx Broadcast
Group, Inc., a Maryland corporation, and First Union National Bank of Maryland,
as Trustee. Terms used herein and defined in the Indenture Rule 144A or Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
A-1
This certificate relates to $_____________ aggregate principal
amount of KDSM Senior Debentures, 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 "The Depository Trust
Company") 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. 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
A-2
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 KDSM Senior Debentures
were initially issued).
Dated:________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of this
certificate.)
A-3
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.)
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