Exhibit 10.4
INDENTURE dated as of _______ __, 1998 among Cumulus Media Inc., an
Illinois corporation (the "Company"), as issuer and _______________________, as
trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the ____%
Subordinated Exchange Debentures due 2009 of the Company (the "Exchange
Debentures"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition (but excluding the creation of a Lien) of any assets including,
without limitation, by way of a sale and leaseback (provided that the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company and its Subsidiaries taken as a whole shall be governed by
Sections 4.13 and/or 5.1 hereof and not by Section 4.10 hereof), and (ii) the
issue or sale by the Company or any of its Restricted Subsidiaries of Equity
Interests of any of the Company's Subsidiaries (including the sale by the
Company or a Restricted Subsidiary of Equity Interests in an Unrestricted
Subsidiary), in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $1.0 million or (b) for net
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proceeds in excess of $1.0 million. Notwithstanding the foregoing, the following
shall not be deemed to be Asset Sales: (1) a transfer of assets by the Company
to a Wholly Owned Restricted Subsidiary of the Company or by a Wholly Owned
Restricted Subsidiary of the Company to the Company or to another Wholly Owned
Restricted Subsidiary of the Company; (2) an issuance of Equity Interests by a
Wholly Owned Restricted Subsidiary of the Company to the Company or to another
Wholly Owned Restricted Subsidiary of the Company; (3) the making of a
Restricted Payment or a Permitted Investment that is permitted by Section 4.7;
(4) a disposition of cash or Cash Equivalents; (5) a disposition of either
obsolete equipment or equipment that is damaged, worn out or otherwise no longer
useful in the business; (6) any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary; (7) any sale and leaseback of
an asset within 90 days after the completion of construction or acquisition of
such asset; (8) any surrender or waiver of contract rights or a settlement,
release or surrender of contract, tort or other claims of any kind or a grant of
any Lien not prohibited by this Exchange Debenture Indenture; and (9) any
transfer of properties or assets that is governed by Section 4.14 hereof; or
(10) a disposition of inventory in the ordinary course of business.
"Asset Swap" means the execution of a definitive agreement, subject
only to regulatory approval and other customary closing conditions, that the
Company in good faith believes will be satisfied, for a substantially concurrent
purchase and sale, or exchange, of assets used or useful in a Permitted Business
between the Company or any of its Restricted Subsidiaries and another person or
group of affiliated persons; provided that any amendment to or waiver of any
closing conditions which individually or in the aggregate is material to the
Asset Swap shall be deemed to be a new Asset Swap.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Board of Directors" means the Board of Directors of the Company or
any authorized committee of such Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability
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in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company or similar entity, any membership or similar interests therein and (v)
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of one year or less from the date
of acquisition, bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any lender party to the Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Xxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having a rating of at least P2 from Moody's
(or its successor) or a rating of at least A2 from S&P (or its successor), and
(vi) investments in money market or other mutual funds substantially all of
whose assets comprise securities of the types described in clauses (ii) through
(v) above.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any "person" or group of related "persons" (a "Group") (as such
terms are used in Section 13(d)(3) of the Exchange Act) other than a Principal
or a Related Party of a Principal, (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any purchase, sale, acquisition,
disposition, merger or consolidation) the result of which is that any "person"
(as defined above) or Group becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of more than 50% of
the aggregate voting power of all classes of Capital Stock of the Company having
the right to elect directors under ordinary circumstances or (iv) the first day
on which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
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"Closing Date" means the date of the closing of the sale of the
Exchange Debentures offered pursuant to the Offering.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the sum of, without duplication, the Consolidated Net Income of such
Person for such period plus (i) provision for taxes based on income or profits
of such Person and its Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net Income, plus
(ii) Consolidated Interest Expense of such Person for such period, to the extent
that any such expense was deducted in computing such Consolidated Net Income,
plus (iii) the product of (a) all cash dividend payments, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than
dividend payments on Equity Interests payable solely in Equity Interests (other
than Disqualified Stock) of the Company, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local effective tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP, plus
(iv) consolidated depreciation, amortization and other non-cash charges of the
Person and its Subsidiaries deducted in computing Consolidated Net Income of
such Person for such period plus (v) cash payments with respect to any non-cash
charges previously added back pursuant to clause (iv). Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in same proportion) that the Net
Income of such Subsidiary was included in calculating the Consolidated Net
Income of such Person.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum, without duplication of (i) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Interest Rate Hedging Agreements), (ii) the consolidated interest expense of
such Person and its Restricted Subsidiaries that was capitalized during such
period, (iii) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or any of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or any
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of its Restricted Subsidiaries (whether or not such guarantee or Lien is called
upon) and (iv) the product of (a) all cash dividend payments (and non-cash
dividend payments in the case of a Person that is a Restricted Subsidiary) on
any series of preferred stock of such Person or any of its Restricted
Subsidiaries, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted Subsidiary
thereof, (ii) the Net Income of any Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
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 stockholders, (iii) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded, (iv) the
cumulative effect of a change in accounting principles shall be excluded and (v)
all other extraordinary gains and extraordinary losses shall be excluded.
"Consolidated Net Tangible Assets" of a Person means the
consolidated total assets of such Person and its consolidated Subsidiaries
determined in accordance with GAAP, less the sum of (i) all current liabilities
and current liability items, and (ii) all goodwill, trade names, trademarks,
patents, organization expense, unamortized debt discount and expense and other
similar intangibles properly classified as intangibles in accordance with GAAP.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-
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ups (other than write-ups resulting from foreign currency translations and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date of the Exchange
Debenture Indenture in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Subsidiaries (except, in
each case, Permitted Investments), and (z) all unamortized debt discount and
expense and unamortized deferred charges as of such date, all of the foregoing
determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of original issuance of the Exchange Debentures
or (ii) was nominated for election or elected to such Board of Directors with
the approval of (x) two-thirds of the Continuing Directors who were members of
such Board at the time of such nomination or election or (y) two-thirds of those
Directors who were previously approved by Continuing Directors.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 11.2 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Agreements" means, with respect to the Company, one or more
debt facilities (including, without limitation, the Credit Facility) or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, production payment financing,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
Indebtedness under Credit Agreements outstanding on the date on which the
Exchange Debentures are first issued and authenticated under this Exchange
Debenture Indenture (after giving effect to the use of proceeds thereof) shall
be deemed to have been incurred on such date in reliance on the exception
provided by clause (b) of the definition of Permitted Indebtedness set forth in
Section 4.9 hereof.
"Credit Facility" means that certain Credit Agreement, dated as of
March 2, 1998, by and among the Company, Xxxxxx Brothers Inc., as Arranger, and
Xxxxxx Brothers Commercial Paper Inc., as Syndication Agent and Administrative
Agent, and certain banks, financial institutions and other entities, as lenders,
providing for up to $190 million of Indebtedness, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, modified, renewed,
refunded, replaced or
7
refinanced, in whole or in part, from time to time, whether or not with the same
lenders or agents.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Exchange Debentures issued
in the form of one or more Global Exchange Debentures, The Depository Trust
Company or another Person designated as Depository by the Company, which must be
a clearing agency registered under the Exchange Act.
"Designated Exchange Debenture Senior Debt" means (i) the Credit
Facility and (ii) any other Exchange Debenture Senior Debt permitted under this
Exchange Debenture Indenture the principal amount of which is $25 million or
more and that has been designated by the Company as "Designated Exchange
Debenture Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, is convertible
or exchangeable for Indebtedness or Disqualified Stock or redeemable at the
option of the holder thereof, in whole or in part, on or prior to the date that
is 91 days after the date on which the Exchange Debentures mature, provided
however, that any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof (or of any security into which it is convertible or
for which it is exchangeable) have the right to require the issuer to repurchase
such Capital Stock (or such security into which it is convertible or for which
it is exchangeable) upon the occurrence of any of the events constituting an
Asset Sale or a Change of Control shall not constitute Disqualified Stock if
such Capital Stock (and all such securities into which it is convertible or for
which it is exchangeable) provides that the issuer thereof will not repurchase
or redeem any such Capital Stock (or any such security into which it is
convertible or for which it is exchangeable) pursuant to such provisions prior
to compliance by the Company with the provisions of Section 4.10 or Section 4.13
hereof, as the case may be.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Exchange Debenture Custodian" means the Trustee or the Registrar,
as custodian with respect to the Exchange Debentures in global form, or any
successor entity thereto or any entity acting as custodian with respect to
Exchange Debentures in global form.
"Exchange Debenture Indenture" means this Indenture, as amended or
supplemented from time to time.
"Exchange Debenture Pari Passu Debt" means indebtedness which ranks
pari passu in right of payment to the Exchange Debentures.
"Exchange Debenture Senior Debt" means (i) Indebtedness of the
Company or any Subsidiary of the Company under or in respect of any Credit
Agreement, whether for principal, interest (including interest accruing after
the filing of a petition initiating any proceeding pursuant to any bankruptcy
law, whether or not the claim for such interest is allowed as a claim in such
proceeding), reimbursement obligations, fees, commissions, expenses, indemnities
or other amounts, and (ii) any other Indebtedness permitted under the terms of
this Exchange Debenture Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Exchange Debentures. Notwithstanding
anything to the contrary in the foregoing sentence, Exchange Debenture Senior
Debt will not include (w) any liability for federal, state, local or other taxes
owed or owing by the Company, (x) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates, or (y) any Indebtedness that is incurred in
violation of the Exchange Debenture Indenture (other than Indebtedness under (i)
the Credit Facility or (ii) any other Credit Agreement that is incurred on the
basis of a representation by the Company to the applicable lenders that it is
permitted to incur such Indebtedness under this Exchange Debenture Indenture).
"Exchange Debenture Subordinated Debt" means any Indebtedness of the
Company or any Restricted Subsidiary (whether outstanding on the date of the
issuance of the Exchange Debentures or thereafter incurred) which is subordinate
or junior in right of payment to the Exchange Debentures pursuant to a written
agreement.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on date hereof.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely
9
payment of which its full faith and credit is pledged or (b) 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 Government Security or a specific payment of principal of or
interest on any such Government Security 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 Government Security or the specific payment of
principal of or interest on the Government Security evidenced by such depository
receipt.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements with respect to
Indebtedness that is permitted by the terms of the Exchange Debenture Indenture
and (ii) other agreements or arrangements designed to protect such Person
against fluctuation in interest rates or the value of foreign currencies
purchased or received by such Person in the ordinary course of business.
"Holder" means a Person in whose name an Exchange Debenture is
registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, (i) in respect of borrowed money, or
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or reimbursement agreements in respect thereof (other than letters of
credit securing obligations not constituting Indebtedness that are issued in the
ordinary course of business by a Person to the extent not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or bankers' acceptances, or (iii)
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, or (iv) representing any Hedging
10
Obligations, in each case if and to the extent any of the foregoing indebtedness
(other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
as well as all Indebtedness of others secured by a Lien on any asset of such
Person (whether or not such Indebtedness is assumed by such Person) and, to the
extent not otherwise included, the Guarantee by such Person of any Indebtedness
of any other Person.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such Subsidiary not
sold or disposed of.
"Issue Date" means the date on which the Exchange Debentures are
originally issued.
"Leverage Ratio" means the ratio of (i) the aggregate outstanding
amount of Indebtedness of the Company and its Subsidiaries as of the date of
calculation on a consolidated basis in accordance with GAAP (subject to the
terms described in the next paragraph) plus the aggregate liquidation preference
of all outstanding Disqualified Stock of the Company and preferred stock of the
Company's Subsidiaries (except preferred stock issued to the Company or a Wholly
Owned Restricted Subsidiary of the Company) on such date to (ii) the
Consolidated Cash Flow of the Company for the four full fiscal quarters (the
"Four Quarter Period") ending on or prior to the date of determination.
For purposes of this definition, (i) the amount of Indebtedness
which is issued at a discount shall be deemed to be the accreted value of such
Indebtedness at the end of the Four Quarter period, whether or not such amount
is the amount then reflected on a balance sheet prepared in accordance with
GAAP, and (ii) the aggregate outstanding principal amount of Indebtedness of the
Company and its Subsidiaries and the aggregate liquidation preference of all
outstanding preferred stock of the Company's Subsidiaries for which such
calculation is made shall be determined on a pro forma basis as if the
Indebtedness and preferred stock giving rise to the need to
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perform such calculation had been incurred and issued and the proceeds therefrom
had been applied, and all other transactions in respect of which such
Indebtedness is being incurred or preferred stock is being issued had occurred,
on the first day of the Four Quarter Period. In addition to the foregoing, for
purposes of this definition, Consolidated Cash Flow shall be calculated on a pro
forma basis after giving effect to (i) the incurrence of the Indebtedness of
such Person and its Subsidiaries and the issuance of the preferred stock of such
Subsidiaries (and the application of the proceeds therefrom) giving rise to the
need to make such calculation and any incurrence (and the application of the
proceeds therefrom) or repayment of other Indebtedness, other than the
incurrence or repayment of Indebtedness pursuant to working capital facilities,
at any time subsequent to the beginning of the Four Quarter Period and on or
prior to the date of determination, as if such incurrence or issuance (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of the Four Quarter Period, (ii) any acquisition
(including, without limitation, any acquisition giving rise to the need to make
such calculation as a result of such Person or one of its Subsidiaries
(including any Person that becomes a Subsidiary as a result of such acquisition)
incurring, assuming or otherwise becoming liable for Indebtedness or such
Person's Subsidiaries issuing preferred stock) at any time on or subsequent to
the first day of the Four Quarter Period and on or prior to the date of
determination, as if such acquisition (including the incurrence, assumption or
liability for any such Indebtedness and the issuance of such preferred stock and
also including any Consolidated Cash Flow associated with such acquisition)
occurred on the first day of the Four Quarter Period. For purposes of this
definition, whenever pro forma effect is to be given to a transaction, the pro
forma calculations shall be made in good faith by a responsible financial or
accounting officer of the Company consistent with Article 11 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof. Furthermore, in calculating "Consolidated Interest Expense" for
purposes of the calculation of "Consolidated Cash Flow," (i) interest on
Indebtedness determined on a fluctuating basis as of the date of determination
(including Indebtedness actually incurred on the date of the transaction giving
rise to the need to calculate the Leverage Ratio) and which will continue to be
so determined thereafter shall be deemed to have accrued at a fixed rate per
annum equal to the rate of interest on such Indebtedness as in effect on the
date of determination and (ii) notwithstanding (i) above, interest determined on
a fluctuating basis, to the extent such interest is covered by Hedging
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the City of
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Chicago or at a place of payment are authorized by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other
than a precautionary financing statement with respect to a lease not intended as
a security agreement).
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain or
loss, together with any related provision for taxes on such extraordinary or
nonrecurring gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, but
excluding cash amounts placed in escrow, until such amounts are released to the
Company), net of the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees and expenses,
and sales commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements), amounts
required to be applied to the repayment of Indebtedness (other than Indebtedness
under any Credit Facility) secured by a Lien on the asset or assets that were
the subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP and any
reserve established for future liabilities.
13
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides any guarantee or
credit support of any kind (including any undertaking, guarantee, indemnity or
agreement or instrument that would constitute Indebtedness) or (b) is directly
or indirectly liable (as a guarantor or otherwise); (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) the explicit terms of which provide that there is
no recourse against any of the assets of the Company or its Restricted
Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Exchange Debentures by the
Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, the Assistant Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company, by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof. The counsel may be an employee of or counsel to the Company or the
Trustee.
"Permitted Business" means the broadcasting business or any business
that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.
"Permitted Indebtedness" has the meaning given in Section 4.9
hereof.
"Permitted Investments" means (a) any Investment in the Company or
in a Wholly Owned Restricted Subsidiary of the Company; (b) any Investment in
Cash Equivalents or securities issued or directly and fully guaranteed or
insured by the United
14
States government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition; (c) any Investment by the
Company or any Restricted Subsidiary of the Company in a Person if, as a result
of such Investment and any related transactions that at the time of such
Investment are contractually mandated to occur, (i) such Person becomes a Wholly
Owned Restricted Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys all or
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company; (d) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof; (e) other Investments in
any Person or Persons having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (e) that are at the time outstanding without giving effect to
subsequent changes in value or increases or decreases attributable to the
accounting for the net income of such Investment, not to exceed $15.0 million;
(f) any Investment acquired by the Company in exchange for Equity Interests in
the Company (other than Disqualified Stock); (g) any Investment acquired by the
Company or any of its Restricted Subsidiaries (A) in exchange for any other
Investment or accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or
accounts receivable or (B) as a result of the transfer of title with respect to
any secured investment in default as a result of a foreclosure by the Company or
any of its Restricted Subsidiaries with respect to such secured Investment; (h)
Hedging Obligations permitted under Section 4.9 hereof; (i) loans and advances
to officers, directors and employees for business-related travel expenses,
moving expenses and other similar expenses, in each case, incurred in the
ordinary course of business; and (j) any guarantees permitted to be made
pursuant to Section 4.9 hereof.
"Permitted Liens" means (i) Liens securing Indebtedness of a
Subsidiary or Liens securing Exchange Debenture Senior Debt that is outstanding
on the date of issuance of the Exchange Debentures and Liens securing Exchange
Debenture Senior Debt that is permitted by the terms of the Exchange Debenture
Indenture to be incurred; (ii) Liens in favor of the Company; (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company and Liens on property or assets of a Subsidiary
existing at the time it became a Subsidiary, provided that such Liens were in
existence prior to the contemplation of the acquisition and do not extend to any
assets other than the acquired property; (iv) Liens incurred or deposits made in
the ordinary course of business in connection with workers' compensation,
unemployment insurance or other kinds of social security, or to secure the
payment or performance of
15
tenders, statutory or regulatory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary
course of business; (v) Liens existing on the date hereof; (vi) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (vii) statutory liens of landlords, mechanics, suppliers,
vendors, warehousemen, carriers or other like Liens arising in the ordinary
course of business; (viii) judgment Liens not giving rise to an Event of Default
so long as any appropriate legal proceeding that may have been duly initiated
for the review of such judgment shall not have been finally terminated or the
period within which such proceeding may be initiated shall not have expired;
(ix) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (f) of the second paragraph of Section 4.9 hereof covering
only the assets acquired with such Indebtedness; (x) Liens incurred in the
ordinary course of business of the Company or any Subsidiary of the Company with
respect to obligations that do not exceed $5.0 million at any one time
outstanding and that (A) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (B) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of business by the Company or such Subsidiary; (xi) Liens on assets of
Unrestricted Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries; (xii) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred or imposed, as
applicable, in the ordinary course of business and consistent with industry
practices which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto (as such property is used by the Company or its Subsidiary) or interfere
with the ordinary conduct of the business of the Company or such Subsidiary;
provided, however, that any such Liens are not incurred in connection with any
borrowing of money or any commitment to loan any money or to extend any credit;
and (xiii) customary Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with worker's
compensation, unemployment insurance and other types of social security
legislation.
"Permitted Refinancing Debt" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Indebtedness incurred under a Credit
Agreement) of the Company or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Permitted Refinancing Debt does not exceed the
principal amount of the Indebtedness so extended,
16
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Debt has a final maturity date on or later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Exchange Debentures, such Permitted
Refinancing Debt has a final maturity date later than the final maturity date
of, and is subordinated in right of payment to, the Exchange Debentures on terms
at least as favorable taken as a whole to the Holders of the Exchange Debentures
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal" means Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, Xx.
"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned subsidiary, or spouse or immediate
family member (in the case of an individual) of such principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Responsible Officer" when used with respect to the Trustee, means
any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any direct or indirect Subsidiary of
the Company that is not an Unrestricted Subsidiary.
17
"S&P" means Standard & Poor's Ratings Group and its successors.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary which 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.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Exchange Debenture
Indenture is qualified under the TIA.
"Total Assets" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet of such Person.
"Trustee" means the party named as such in the preamble to this
Exchange Debenture Indenture until a successor replaces it in accordance with
the applicable provisions of this Exchange Debenture Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
which at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and (ii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through
merger or consolidation or Investment therein) to be an Unrestricted Subsidiary
only if: (a) such Subsidiary does not own any Capital Stock of, or own or hold
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (b) all the Indebtedness of such Subsidiary shall at the date of
designation, and will at all times thereafter consist of, Non-Recourse Debt; (c)
the Company
18
certifies that such designation was permitted by Section 4.7; (d) such
Subsidiary, either alone or in the aggregate with all other Unrestricted
Subsidiaries, does not operate, directly or indirectly, all or substantially all
of the business of the Company and its Subsidiaries; (e) such Subsidiary does
not, directly or indirectly, own any Indebtedness of or Equity Interest in, and
has no Investments in, the Company or any Restricted Subsidiary; (f) such
Subsidiary is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (1) to subscribe
for additional Equity Interests or (2) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (g) on the date such Subsidiary is designated an
Unrestricted Subsidiary, such Subsidiary is not a party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary with terms substantially less favorable to the Company than those
that might have been obtained from Persons who are not Affiliates of the
Company. Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a resolution of the Board of
Directors of the Company giving effect to such designation and an Officer's
Certificate certifying that such designation complied with the foregoing
conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Exchange Debenture
Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred
as of such date. The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that (1)
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could incur at least $1.00 of additional Indebtedness
(excluding Permitted Indebtedness) pursuant to Section 4.9 on a pro forma basis
taking into account such designation and (2) such Subsidiary executes a
Guarantee pursuant to the terms of this Exchange Debenture Indenture.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person, all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares) are
owned, directly or
19
indirectly, by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
Section 1.2. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"....................... 4.11
"Asset Sale Offer"............................ 3.9
"Bankruptcy Law".............................. 10.2
"Change of Control Offer"..................... 4.13
"Change of Control Payment"................... 4.13
"Change of Control Payment Date".............. 4.13
"Closing Date"................................ 2.1
"Covenant Defeasance"......................... 8.3
"Custodian"................................... 6.1
"DTC"......................................... 2.3
"Equity Offering"............................. 3.7
"Event of Default"............................ 6.1
"Excess Proceeds"............................. 4.10
"Global Exchange Debenture" .................. 2.1
"Global Exchange Debenture Holder"............ 2.1
"incur"....................................... 4.9
"Legal Defeasance"............................ 8.2
"Notice of Default"........................... 6.1
"Offer Amount"................................ 3.9
"Offer Period"................................ 3.9
"Paying Agent"................................ 2.3
"Payment Blockage Notice"..................... 10.4
"Payment Default"............................. 6.1
"Permitted Indebtedness"...................... 4.9
"Purchase Date"............................... 3.9
"Registrar"................................... 2.3
"Restricted Payments"......................... 4.7
"Exchange Debenture Senior Debt".............. 10.2
Section 1.3. Incorporation By Reference of Trust Indenture Act.
Whenever this Exchange Debenture Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a part of this
Exchange Debenture Indenture.
The following TIA terms used in this Exchange Debenture Indenture
have the following meanings:
"indenture securities" means the Exchange Debentures;
"indenture to be qualified" means this Exchange Debenture Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
20
"obligor" means the Company and any successor obligor upon the
Exchange Debentures.
All other terms used in this Exchange Debenture Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
rule enacted by the Commission under the TIA have the meanings so assigned to
them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE EXCHANGE DEBENTURES
Section 2.1. Form and Dating.
The Exchange Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the terms
of which are incorporated herein and made part of this Exchange Debenture
Indenture. The Exchange Debentures may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Exchange Debenture shall be
dated the date of its issuance and shall show the date of its authentication.
The Exchange Debentures will be fully registered as to principal and interest in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
The Exchange Debentures offered and sold may be issued initially in
the form of one or more fully registered global Exchange Debentures (each being
called a "Global Exchange Debenture"), with, or on behalf of, The Depository
Trust Company and registered in the name of Cede & Co., as nominee of the
Depository (such nominee being referred to herein as the "Global Exchange
Debenture Holder"), or will remain in the custody of the
21
Registrar pursuant to the Fast Balance Certificate Agreement between the
Depository and the Registrar and shall bear the legend set forth as Exhibit B.
Except as set forth in Section 2.6, the Global Exchange Debenture may be
transferred, in whole and not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee.
The terms and provisions contained in the Exchange Debentures shall
constitute, and are hereby expressly made, a part of this Exchange Debenture
Indenture and the Company and the Trustee, by their execution and delivery of
this Exchange Debenture Indenture, expressly agree to such terms and provisions
and (as to the Trustee, to the extent such terms and provisions pertain to the
Trustee) to be bound thereby.
Exchange Debentures issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the legend on Exhibit B).
Exchange Debentures issued in certificated form shall be substantially in the
form of Exhibit A attached hereto (but without including the legend on Exhibit
B). Each Global Exchange Debenture shall represent such of the outstanding
Exchange Debentures as shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Exchange Debentures from
time to time endorsed thereon and that the aggregate amount of outstanding
Exchange Debentures represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Exchange Debenture to reflect the amount of any increase or decrease
in the amount of outstanding Exchange Debentures represented thereby shall be
made by the Trustee or the Exchange Debenture Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.6 hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Exchange Debentures for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Exchange Debentures and may be in facsimile form.
If an Officer whose signature is on an Exchange Debenture no longer
holds that office at the time an Exchange Debenture is authenticated, the
Exchange Debenture shall nevertheless be valid.
An Exchange Debenture shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Exchange Debenture has been authenticated under this Exchange Debenture
Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Exchange Debentures for
22
original issue up to the aggregate principal amount of $133,000,000. The
aggregate principal amount of Exchange Debentures outstanding at any time may
not exceed $133,000,000, except as provided in Section 2.7 hereof.
Notwithstanding anything in this Exchange Debenture Indenture to the contrary or
the execution and delivery of this Exchange Debenture Indenture on the date
hereof, the terms and provisions of this Exchange Debenture Indenture shall not
be effective until the consummation of an exchange pursuant to the Certificate
of Designations relating to the Company's __% Series A Cumulative Exchangeable
Redeemable Preferred Stock due 2009 (the "Series A Preferred Stock").
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Exchange Debentures. An authenticating agent may
authenticate Exchange Debentures whenever the Trustee may do so. Each reference
in this Exchange Debenture Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York where (i) Exchange Debentures may be presented
for registration of transfer or for exchange ("Registrar") and (ii) Exchange
Debentures may be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Exchange Debentures and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Exchange Debenture Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Exchange Debentures.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Exchange Debenture Custodian with respect to the
Global Exchange Debentures.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent, including the Trustee
(who shall be deemed to have agreed by its execution
23
of this Exchange Debenture Indenture), to agree in writing that the Paying Agent
shall hold in trust for the benefit of Holders or the Trustee (unless the Paying
Agent is the Trustee, in which case it shall hold in trust for the Holders) all
money held by the Paying Agent for the payment of principal, premium, if any, or
interest, on the Exchange Debentures, and shall notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as sole Paying
Agent for the Exchange Debentures.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Exchange Debentures and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.6. Transfer and Exchange.
Subject to the provisions of Section 2.13, when Exchange Debentures
are presented to the Registrar with a request to register the transfer of such
Exchange Debentures or to exchange such Exchange Debentures for an equal
principal amount of Exchange Debentures of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the Exchange
Debentures surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof (or his attorney duly authorized in writing) in form satisfactory to the
Company and to the Registrar. In order to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Exchange
Debentures at the Registrar's written request. No service charge shall be made
for any registration of transfer or exchange or of redemption, but the Company
may, by notice to the Trustee, require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other governmental charge
24
payable upon exchanges or transfers pursuant to Sections 2.2, 2.3, 3.6, 3.7(b)
or 3.9). The Registrar shall not be required to register the transfer of or
exchange of any Exchange Debenture (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Exchange
Debentures and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Exchange Debenture being redeemed in part.
Prior to due presentment for the registration of a transfer of any
Exchange Debenture, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Exchange Debenture is registered as the absolute
owner of such Exchange Debenture for the purpose of receiving payment of
principal of and interest on such Exchange Debentures, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary.
Section 2.7. Replacement Exchange Debentures.
If any mutilated Exchange Debenture is surrendered to the Trustee,
or the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Exchange Debenture, the Company shall issue
and the Trustee, upon the receipt of a written authentication order of the
Company signed by two Officers of the Company, shall authenticate a replacement
Exchange Debenture if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if an Exchange Debenture is replaced. The Company and the
Trustee may charge for its expenses in replacing a Exchange Debenture.
Every replacement Exchange Debenture is an additional obligation of
the Company and shall be entitled to all of the benefits of this Exchange
Debenture Indenture equally and proportionately with all other Exchange
Debentures duly issued hereunder.
Section 2.8. Outstanding Exchange Debentures.
The Exchange Debentures outstanding at any time are all the Exchange
Debentures authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Exchange Debenture effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding. Except as set
forth in Section 2.9 hereof, a Exchange Debenture does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Exchange Debenture.
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If an Exchange Debenture is replaced pursuant to Section 2.7 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Exchange Debenture is held by a bona fide purchaser.
If the principal amount of any Exchange Debenture is considered paid
under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases
to accrue. Exchange Debentures will also cease to be outstanding for certain
purposes hereunder as provided in Article 8 hereof.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Exchange Debentures payable on that date, then on and after
that date such Exchange Debentures shall be deemed to be no longer outstanding
and shall cease to accrue interest.
Section 2.9. Treasury Exchange Debentures.
In determining whether the Holders of the required principal amount
of Exchange Debentures have concurred in any direction, waiver or consent,
Exchange Debentures owned by the Company or by any Affiliate of the Company
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Exchange Debentures that a Trustee actually
knows are registered in the names of the Company or any of their Affiliates or
are certified as such by the Company in an Officer's Certificate delivered to
the Trustee shall be so disregarded.
When the Company or any of its Affiliates repurchases or otherwise
acquires Exchange Debentures, the Company shall notify the Trustee, in writing,
of the aggregate principal amount of such Exchange Debentures so repurchased or
otherwise acquired. The Trustee may require an Officer's Certificate listing
Exchange Debentures owned by the Company or any of its Affiliates.
Section 2.10. CUSIP Number.
The Company in issuing the Exchange Debentures may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Exchange Debentures
and that reliance may be placed only on the other identification numbers printed
on the Exchange Debentures.
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Section 2.11. Cancellation.
The Company at any time may deliver Exchange Debentures to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Exchange Debentures surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Exchange Debentures surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Exchange Debentures
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Exchange Debentures shall be delivered to
the Company. The Company may not issue new Exchange Debentures to replace
Exchange Debentures that it has paid or that have been delivered to the Trustee
for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Exchange
Debentures, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Exchange Debentures and in Section 4.1 hereof. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Exchange Debenture and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.13. Book-Entry Provisions for Global Exchange Debentures.
(a) The Global Exchange Debentures initially shall (i) be registered
in the name of Cede & Co., as the nominee of The Depository Trust Company, (ii)
be delivered to the Registrar as custodian for such Depository and (iii) bear
legends as set forth in Exhibit B.
(b) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Exchange Debenture Indenture with respect to any
Global Exchange Debenture held on their behalf by the Depository, or the
Registrar or the Trustee as its custodian, or under the Global Exchange
Debenture, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Exchange
Debenture for all purposes whatsoever.
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Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Exchange Debenture.
(c) Transfers of Global Exchange Debentures shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Exchange
Debentures may be transferred or exchanged for Certificated Exchange Debentures
in accordance with the rules and procedures of the Depository. In addition,
Certificated Exchange Debentures shall be transferred to all beneficial owners
in exchange for their beneficial interests in Global Exchange Debentures if (i)
the Company notifies the Registrar that the Depository is unwilling or unable to
continue as Depository for any Global Exchange Debenture and a successor
Depository is not appointed by the Company within 90 days of such notice or (ii)
the Company, at its option, notifies the Registrar in writing that it elects to
cause the issuance of Exchange Debentures in definitive form under this Exchange
Debenture Indenture or (iii) an Event of Default has occurred and is continuing
and the Registrar has received a request from the Depository to issue
Certificated Exchange Debentures.
(d) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Exchange Debenture to beneficial owners
pursuant to paragraph (c), the Registrar shall (if one or more Certificated
Exchange Debentures are to be issued) reflect on its books and records the date
and a decrease in the principal amount of the Global Exchange Debenture in an
amount equal to the principal amount of the beneficial interest in the Global
Exchange Debenture to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Exchange
Debentures of like tenor and amount.
(e) In connection with the transfer of Global Exchange Debentures as
an entirety to beneficial owners pursuant to the second sentence of paragraph
(c), the Global Exchange Debentures 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 Depository
in exchange for its beneficial interest in the Global Exchange Debentures, an
equal aggregate principal amount of Certificated Exchange Debentures of
authorized denominations.
(f) The Holder of any Global Exchange Debenture may grant proxies
and otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent
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Members, to take any action which a Holder is entitled to take under this
Exchange Debenture Indenture or the Exchange Debentures.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee.
If the Company elects to redeem Exchange Debentures pursuant to the
optional redemption provisions of Section 3.7 hereof, then it shall furnish to
the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the paragraph of the Exchange
Debentures and/or Section of this Exchange Debenture Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Exchange Debentures to be redeemed and (iv) the redemption price.
Section 3.2. Selection of Exchange Debentures to Be Redeemed.
If less than all of the Exchange Debentures are to be redeemed at
any time, selection of Exchange Debentures for redemption shall be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Exchange Debentures are listed, or, if the
Exchange Debentures are not so listed, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate; provided that no Exchange
Debentures of $1,000 or less shall be redeemed in part. In the event of partial
redemption by lot, the particular Exchange Debentures to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Exchange
Debentures not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Exchange Debentures selected for redemption and, in the case of any Exchange
Debenture selected for partial redemption, the principal amount thereof to be
redeemed. Exchange Debentures and portions of Exchange Debentures selected shall
be in amounts of $1,000 or whole multiples of $1,000; except that if all of the
Exchange Debentures of a Holder are to be redeemed, the entire outstanding
amount of Exchange Debentures held by such Holder, even if not a multiple of
$1,000, shall be redeemed. A new Exchange Debenture in principal amount equal to
the unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Exchange Debenture. On and after the
redemption date, unless the Company defaults in payment of the redemption price,
interest ceases to accrue on Exchange Debentures or portions of them called for
redemption. Except as provided in this Section 3.2, provisions
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of this Exchange Debenture Indenture that apply to Exchange Debentures called
for redemption also apply to portions of Exchange Debentures called for
redemption.
The provisions of the two preceding paragraphs of this Section 3.2
shall not apply with respect to any redemption affecting only a Global Exchange
Debenture, whether such Global Exchange Debenture is to be redeemed in whole or
in part. In case of any such redemption in part, the unredeemed portion of the
principal amount of the Global Exchange Debenture shall be in an authorized
denomination.
Section 3.3. Notice of Redemption.
Subject to the provisions of Section 3.9 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
of Exchange Debentures to be redeemed at such Holder's registered address,
provided, however, that the Company shall provide notice to the Trustee in
accordance with Section 3.1 hereof at least five days prior to the mailing of
the notice pursuant to this Section 3.3.
The notice shall identify the Exchange Debentures to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Exchange Debenture is being redeemed in part, the portion
of the principal amount of such Exchange Debenture to be redeemed and
that, after the redemption date upon surrender of such Exchange Debenture,
a new Exchange Debenture or Exchange Debentures in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the
original Exchange Debenture;
(d) the name and address of the Paying Agent;
(e) that Exchange Debentures called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Exchange Debentures called for redemption cease to
accrue on and after the redemption date;
(g) the paragraph of the Exchange Debentures and/or Section of this
Exchange Debenture Indenture pursuant to which the Exchange Debentures
called for redemption are being redeemed; and
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(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Exchange Debentures.
If any of the Exchange Debentures to be redeemed is in the form of a
Global Exchange Debenture, then such notice shall be modified in form but not
substance to the extent appropriate to accord with the procedures of the
Depository applicable to redemptions.
At the Company's request and expense, the Trustee shall give the
notice of redemption in the Company's name; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Exchange Debentures called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional.
Section 3.5. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Exchange Debentures to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of and accrued interest on,
all Exchange Debentures to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Exchange Debentures or the portions of Exchange Debentures called for
redemption. If an Exchange Debenture is redeemed on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Exchange
Debenture was registered at the close of business on such record date. If any
Exchange Debenture called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Exchange
Debentures and in Section 4.1 hereof.
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Section 3.6. Exchange Debentures Redeemed in Part.
Upon surrender of a Exchange Debenture that is redeemed in part, the
Company shall issue and, upon the receipt of a written authentication order of
the Company signed by two Officers of the Company, the Trustee shall
authenticate for the Holder at the expense of the Company a new Exchange
Debenture equal in principal amount to the unredeemed portion of the Exchange
Debenture surrendered.
Section 3.7. Optional Redemption.
(a) Except as described below, the Exchange Debentures will not be
redeemable at the Company's option prior to ________ __, 2003. Thereafter, the
Exchange Debentures will be subject to redemption at the option of the Company,
in whole or in part, upon not less than 30 more than 60 days' notice at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on _________ __ of each of the
years indicated below:
Percentage of
Year Principal Amount
---- ----------------
2003.................................
2004.................................
2005.................................
2006.................................
2007 and thereafter.................. 100.0000%
(b) Prior to _______ __, 2001, the Company may, at its option, on
any one or more occasions, redeem up to 35% of the original aggregate principal
amount of Exchange Debentures at a redemption price equal to ____% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date with all or a portion of the net proceeds of one or more
Equity Offerings (as defined below); provided that at least 65% of the original
aggregate principal amount of Exchange Debentures remains outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 90 days of the date after the closing of any
such Equity Offering.
As used in the preceding paragraph, "Equity Offering" means any
public or private sale of Common Stock of the Company pursuant to which the
company receives net proceeds of at least $25.0 million, other than issuances of
Common Stock of the Company pursuant to employee benefit plans or as
compensation to employees.
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(c) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.8. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.13 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Exchange Debentures.
Section 3.9. Offer to Purchase By Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders of Exchange Debentures
and, to the extent required by the terms thereof, to all holders or lenders of
other Exchange Debenture Pari Passu Debt, to purchase Exchange Debentures and
any such Exchange Debenture Pari Passu Debt (an "Asset Sale Offer"), it shall
follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Exchange Debentures
required to be purchased pursuant to Section 4.10 hereof, giving effect to any
related offer for Exchange Debenture Pari Passu Debt pursuant to Section 4.10,
(the "Offer Amount") or, if less than the Offer Amount has been tendered, all
Exchange Debentures tendered in response to the Asset Sale Offer. Payment for
any Exchange Debentures so purchased shall be made in the same manner as
interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name an Exchange Debenture is registered at
the close of business on such record date, and no additional interest shall be
payable to Holders who tender Exchange Debentures pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Exchange Debentures pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
33
(a) that the Asset Sale Offer is being made pursuant to this Section
3.9 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Exchange Debenture not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Exchange Debenture accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have an Exchange Debenture purchased
pursuant to an Asset Sale Offer may only elect to have all of such
Exchange Debenture purchased and may not elect to have only a portion of
such Exchange Debenture purchased;
(f) that Holders electing to have a Exchange Debenture purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Exchange Debenture, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Exchange Debenture completed, or transfer
by book-entry transfer, to the Company, a Depository, if appointed by the
Company, or a Paying Agent at the address specified in the notice at least
three Business Days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the Depository or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Exchange Debenture the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Exchange Debenture purchased;
(h) that, if the aggregate principal amount of Exchange Debentures
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Exchange Debentures to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Exchange Debentures in denominations of $1,000, or integral multiples
thereof, shall be purchased) in the manner provided in Section 4.10; and
(i) that Holders whose Exchange Debentures were purchased only in
part shall be issued new Exchange Debentures equal in principal amount to
the unpurchased
34
portion of the Exchange Debentures surrendered (or transferred by
book-entry transfer).
If any of the Exchange Debentures subject to an Asset Sale Offer is
in the form of a Global Exchange Debenture, then such notice may be modified in
form but not substance to the extent appropriate to accord with the procedures
of the Depository applicable to repurchases.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Exchange Debentures or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Exchange Debentures tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Exchange Debentures or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.9. The Company, the Depository or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase Date) mail
or deliver to each tendering Holder an amount equal to the purchase price of the
Exchange Debentures tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Exchange Debenture, and the
Trustee, upon receipt of a written authentication order of the Company signed by
two Officers of the Company shall authenticate and mail or deliver such new
Exchange Debenture to such Holder, in a principal amount equal to any
unpurchased portion of the Exchange Debenture surrendered. Any Exchange
Debenture not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the
Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Exchange Debentures.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Exchange Debentures on the dates and in the manner
provided in the Exchange Debentures. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all such amounts then due.
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[The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Exchange
Debentures to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.]
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where principal, premium,
if any, and interest on the Exchange Debentures will be paid and where Exchange
Debentures may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Exchange
Debentures and this Exchange Debenture Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Exchange Debentures may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates the following office of an Affiliate
of the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
Section 4.3. Reports.
Whether or not required by the rules and regulations of the
Commission, so long as any Exchange Debentures are outstanding, the Company will
furnish to the Holders of Exchange Debentures (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries and, with respect
36
to the annual information only, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports, in each case within the time periods set forth in the Commission's
rules and regulations. In addition, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of such information
and report with the Commission for public availability within the time periods
set forth in the Commission's rules and regulations (unless the Commission will
not accept such a filing). The Company shall at all times comply with TIA
ss.314(a).
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Exchange Debenture Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Exchange Debenture Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Exchange Debenture Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, premium, if any, or interest on the Exchange Debentures is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. As of the
date hereof, the Company's fiscal year ends on December 31 of each calendar
year. In the event the Company changes its fiscal year, it shall promptly notify
the Trustee of such change.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the fiscal year-end
financial statements delivered pursuant to Section 4.3(a) above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants
37
shall not be liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Exchange Debentures are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.5. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Exchange Debentures.
Section 4.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Exchange Debenture Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
Section 4.7. Restricted Payments.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment to holders of the Company's Equity
Interests in connection with any merger or consolidation involving the Company)
to the direct or indirect holders of the Company's Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value any Equity Interests of the Company or
any direct or indirect parent or other Affiliate of the Company that is not a
Wholly Owned Restricted Subsidiary of the Company; (iii) make any principal
payment on, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Exchange Debentures, except
at final maturity; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i)
38
through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
to the test set forth in the first paragraph of Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of the Exchange Debenture Indenture (excluding
Restricted Payments permitted by clauses (2), (3) and (5) of the next
succeeding paragraph), is less than the sum of (i) (A) 100% of the
aggregate Consolidated Cash Flow of the Company (or, in the event such
Consolidated Cash Flow shall be a deficit, minus 100% of such deficit)
accrued for the period beginning on the first day of the Company's fiscal
quarter commencing after the Issue Date and ending on the last day of the
Company's most recent fiscal quarter for which financial information is
available to the Company ending prior to the date of such proposed
Restricted Payment, taken as one accounting period, less (B) 1.4 times
Consolidated Interest Expense for the same period, plus (ii) 100% of the
aggregate net cash proceeds and the fair market value of marketable
securities (as determined in good faith by the Company) received by the
Company from the issue or sale since the date hereof of Equity Interests
of the Company or of debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity
Interests (or convertible debt securities) sold to a Subsidiary of the
Company, other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock and other than the Common Stock issued
in the Common Stock Offering), plus (iii) to the extent that any
Restricted Investment that was made after the date hereof is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A) the net
proceeds of such sale, liquidation or repayment and (B) the amount of such
Restricted Investment, plus (iv) $5.0 million.
The foregoing provisions will not prohibit (1) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Exchange Debenture Indenture; (2) the redemption, repurchase, retirement
39
or other acquisition of any Equity Interests of the Company in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company (other than
any Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c)(ii) of the preceding paragraph;
(3) the defeasance, redemption or repurchase of subordinated Indebtedness with
the net cash proceeds from an incurrence of subordinated Permitted Refinancing
Debt or the substantially concurrent sale (other than to a Subsidiary of the
Company) of Equity Interests of the Company (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c)(ii) of the preceding paragraph; (4) the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of the
Company or any Subsidiary of the Company held by any of the Company's (or any of
its Subsidiaries') employees pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Exchange
Debenture Indenture in connection with the termination of such person's
employment for any reason (including by reason of death or disability); provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $500,000 in any twelve-month period;
and provided further that no Default or Event of Default shall have occurred and
be continuing immediately after such transaction; and (5) repurchases of Equity
Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options.
The amount of all Restricted Payments (other than cash) shall be the
fair market value (as determined in good faith by a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the Trustee, which
determination shall be conclusive evidence of compliance with this provision) on
the date of the Restricted Payment of the asset(s) proposed to be transferred by
the Company or the applicable Restricted Subsidiary, as the case may be,
pursuant to the Restricted Payment. Not later than five days after the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section 4.7
were computed.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and shall reduce the
40
amount available for Restricted Payments under clause (c) of the first paragraph
of this covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the greater of the fair market value or the
book value of such Investments at the time of such designation. Such designation
will only be permitted if such Restricted Payment would be permitted at such
time and if such Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.
Section 4.8. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(x) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (y) pay any indebtedness owed by it to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries or (iii) transfer any of its properties or assets to
the Company or any Restricted Subsidiaries of the Company, except for such
encumbrances or restrictions existing under or by reason of (a) the Credit
Facility as in effect as of the date of this Exchange Debenture Indenture, and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof or any other Credit Agreement,
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements, refinancings or any other Credit
Agreements are no more restrictive taken as a whole with respect to such
dividend and other payment restrictions than those contained in the Credit
Facility as in effect on the date of this Exchange Debenture Indenture, (b) this
Exchange Debenture Indenture and the Exchange Debentures, (c) applicable law,
(d) any instrument governing Indebtedness or Capital Stock of a Person acquired
by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except, in the case of Indebtedness, to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its Subsidiaries, so
acquired, provided that, such Indebtedness or Disqualified Stock was permitted
by the terms of this Exchange Debenture Indenture to be incurred, (e) by reason
of customary non-assignment provisions in leases and customary provisions in
other agreements that restrict assignment of such agreements or rights
thereunder, entered into in the ordinary course of business and consistent with
past practices, (f) purchase money obligations for property acquired in the
ordinary course of business that impose
41
restrictions of the nature described in clause (iii) above on the property so
acquired or (g) Permitted Refinancing Debt, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Debt are no
more restrictive than those contained in the agreements governing the
Indebtedness being refinanced.
Section 4.9. Incurrence of Indebtedness and Issuance of Preferred
Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock if the Company's Leverage
Ratio at the time of the incurrence of such indebtedness, after giving pro-forma
effect thereto and to the use of proceeds therefrom, is less than 7.0 to 1.
Notwithstanding the foregoing, the Exchange Debenture Indenture will
not prohibit any of the following (collectively, "Permitted Indebtedness"): (a)
the Indebtedness evidenced by the Exchange Debentures; (b) the incurrence by the
Company of Indebtedness pursuant to Credit Agreements or the Company's __%
Senior Subordinated Notes due 2008, so long as the aggregate principal amount of
all Indebtedness outstanding under all Credit Agreements does not, at any one
time, exceed $190.0 million, less the aggregate amount of all proceeds from all
Asset Sales that have been applied since the date hereof to permanently reduce
the outstanding amount of such Indebtedness pursuant to the provisions described
under Section 4.10; (c) all Indebtedness of the Company and its Restricted
Subsidiaries in existence as of the date hereof; (d) intercompany Indebtedness
between or among the Company and any of its Wholly Owned Restricted
Subsidiaries; provided, however, that (i) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly subordinate to the payment in full
of all Obligations with respect to the Exchange Debentures and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Wholly Owned
Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Restricted Subsidiary, as the case
may be; (e) the incurrence by the Company or its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case incurred for the purpose of financing
all or any part of the purchase
42
price, lease or cost of construction or improvement of property, plant or
equipment used in a Permitted Business in an aggregate principal amount not to
exceed $15.0 million at any time outstanding; (f) the incurrence by the Company
or its Restricted Subsidiaries of Permitted Refinancing Debt in exchange for, or
the net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by the Exchange
Debenture Indenture to be incurred; (g) the incurrence by the Company or its
Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose
of fixing or hedging interest rate risk with respect to any floating or variable
rate Indebtedness or for the purpose of protecting against fluctuations in
interest rates or the value of foreign currencies purchased or received, in each
case in respect of Indebtedness that is permitted by the terms of this Exchange
Debenture Indenture to be outstanding; provided, however, that in the case of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risks with respect to Indebtedness, the notional principal amount
of any such Hedging Obligation does not exceed the principal amount of the
Indebtedness to which such Hedging Obligation relates and in the case of Hedging
Obligations incurred for the purpose of protecting against fluctuations in
interest rates or the value of foreign currencies purchased or received, such
Hedging Obligations do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder; (h) Indebtedness incurred solely in respect of
performance, surety and similar bonds or completion guarantees, to the extent
that such incurrence does not result in the incurrence of any obligation for the
payment of borrowed money to others; (i) Indebtedness arising out of standby
letters of credit covering workers compensation, performance or similar
obligations in an aggregate amount not to exceed $500,000 at any time
outstanding; (j) any guarantee of the Company of Indebtedness or other
obligations of any of its Restricted Subsidiaries so long as the incurrence of
such Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of the Exchange Debenture Indenture; (k) the incurrence by the Company of
additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding not to exceed $10.0 million; and (l) the
incurrence by the Company of Indebtedness in respect of Exchange Debentures
issued as payment in kind interest on Exchange Debentures issued on the exchange
of the Series A Preferred Stock, to the extent such interest payments are made
pursuant to the terms hereof.
The Company will not permit any Unrestricted Subsidiary to incur any
Indebtedness other than Non-Recourse Debt; provided, however, if any such
Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to
constitute an incurrence of Indebtedness by the Company.
43
Section 4.10. Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (as determined in good
faith by a resolution of the Board of Directors of the Company set forth in an
Officer's Certificate delivered to the Trustee, which determination shall be
conclusive evidence of compliance with this provision) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary, is
in the form of cash or Cash Equivalents; provided that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Exchange Debentures or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability and
(y) any non-cash consideration received by the Company or any such Restricted
Subsidiary that are converted by the Company or such Restricted Subsidiary into
cash within 30 days of closing such Asset Sale, shall be deemed to be cash for
purposes of this provision (to the extent of the cash received).
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at
its option, (a) to permanently reduce Exchange Debenture Senior Debt (and to
correspondingly permanently reduce commitments with respect thereto in the case
of revolving borrowings), or (b) to an investment in any one or more businesses,
capital expenditures or acquisition of other assets, in each case, used or
useful in a Permitted Business. Pending the final application of any such Net
Proceeds, the Company may temporarily reduce Exchange Debenture Senior Debt that
is revolving debt or otherwise invest such Net Proceeds in any manner that is
not prohibited by the Exchange Debenture Indenture. Any Net Proceeds from Asset
Sales that are not applied as provided in the first sentence of this paragraph
will (after the expiration of the periods specified in this paragraph) be deemed
to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company will be required to make an offer to all Holders of the Exchange
Debentures and, to the extent required by the terms thereof, to all holders or
lenders of Exchange Debenture Pari Passu Debt (an "Asset Sale Offer") to
purchase the maximum principal amount of the Exchange Debentures and any such
Exchange Debenture Pari Passu Debt to which the Asset Sale Offer applies that
may be purchased out of the Excess Proceeds, at an offer price in cash equal to
100% of the
44
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase, in accordance with the procedures set forth in the Exchange Debenture
Indenture or the agreements governing the Exchange Debenture Pari Passu Debt, as
applicable. To the extent that the aggregate principal amount of the Exchange
Debentures and Exchange Debenture Pari Passu Debt tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate principal
amount of the Exchange Debentures surrendered by Holders thereof and other
Exchange Debenture Pari Passu Debt surrendered by holders or lenders thereof,
collectively, exceeds the amount of Excess Proceeds, the Trustee shall select
the Exchange Debentures and the trustee or other lender representative for the
Exchange Debenture Pari Passu Debt shall select the Exchange Debenture Pari
Passu Debt to be purchased on a pro rata basis, based on the aggregate principal
amount thereof surrendered in such Asset Sale Offer. Upon completion of such
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any of its Affiliates (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is
on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $1.0 million, a resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
or series of Affiliated Transactions complies with clause (i) above and that
such Affiliate Transaction or series of Affiliated Transactions has been
approved in good faith by a majority of the members of the Board of Directors
who are disinterested with respect to such Affiliate Transaction or series of
Affiliated Transactions, which resolution shall be conclusive evidence of
compliance with this provision, and (b) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, the Company delivers an Officer's
Certificate certifying that such Affiliate Transaction or series of related
Affiliate Transactions complies with clause (i) above and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved in
good faith by a resolution adopted by a majority of the members of the Board of
Directors of the Company who are disinterested with respect to such Affiliate
Transaction or
45
series of related Affiliate Transactions and an opinion as to the fairness to
the Company or such Subsidiary of such Affiliate Transaction or series of
related Affiliate Transactions from a financial point of view issued by an
accounting, appraisal, engineering or investment banking firm of national
standing (which resolution and fairness opinion shall be conclusive evidence of
compliance with this provision); provided that the following shall not be deemed
Affiliate Transactions: (1) transactions contemplated by any employment
agreement or other compensation plan or arrangement entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted Subsidiary,
(2) transactions between or among the Company and/or its Restricted
Subsidiaries, (3) Restricted Payments and Permitted Investments that are
permitted by Section 4.7 of this Exchange Debenture Indenture, (4)
indemnification payments made to officers, directors and employees of the
Company or any Restricted Subsidiary pursuant to charter, bylaw, statutory or
contractual provisions and (5) any agreement as in effect as of the Issue Date
or any Transaction contemplated thereby.
Section 4.12. Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien securing Indebtedness of any kind (other than
Permitted Liens) upon any of its property or assets, now owned or hereafter
acquired.
Section 4.13. Offer to Repurchase Upon Change of Control.
Change of Control
Upon the occurrence of a Change of Control, each Holder of the
Exchange Debentures will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Exchange Debentures pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount of the Exchange Debentures plus accrued and unpaid interest, if
any, thereon to the date of purchase (the "Change of Control Payment"). Within
30 days following any Change of Control, the Company will (i) mail a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control and offer to repurchase the Exchange Debentures pursuant to
the procedures required by this Exchange Debenture Indenture and described in
such notice on a date no earlier than 30 days nor later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date") and (ii) (a)
offer to repay in full all Obligations under the Credit Facility and to repay in
full all Obligations of each lender who has accepted such offer or (b) obtain
the requisite consent under
46
agreements evidencing Exchange Debenture Senior Debt to permit the purchase of
the Exchange Debentures as described herein. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Exchange Debentures as a
result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the
extent lawful, (i) accept for payment all Exchange Debentures or portions
thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all the Exchange Debentures or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee the relevant Exchange Debentures
so accepted together with an Officers' Certificate stating the aggregate
principal amount of such Exchange Debentures or portions thereof being purchased
by the Company. The Paying Agent will promptly mail to each Holder of the
Exchange Debentures so tendered the Change of Control Payment for such Exchange
Debentures, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each tendering Holder a new Exchange Debenture
equal in principal amount to any unpurchased portion of the Exchange Debentures
surrendered, if any; provided that each such new Exchange Debenture will be in a
principal amount of $1,000 or an integral multiple thereof. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Company will not be required to make a Change of Control Offer
if a third party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in this Exchange
Debenture Indenture applicable to a Change of Control Offer made by the Company
and purchases all Exchange Debentures (or portions thereof) validly tendered and
not withdrawn under such Change of Control Offer.
Section 4.14. Asset Swaps
The Company will not, and will not permit any of its Restricted
Subsidiaries to, in one or a series of related transactions, directly or
indirectly, engage in any Asset Swaps, unless: (i) at the time of entering into
the agreement to swap assets and immediately after giving effect to the proposed
Asset Swap, no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; (ii) the Company would, after giving
pro forma effect to the proposed Asset Swap, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the test set forth in Section
4.9 hereof; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Restricted Subsidiaries (as
determined in good faith by the management of
47
the Company or, if such Asset Swap includes consideration in excess of $_____
million by the Board of Directors of the Company, as evidenced by a Board
Resolution) are substantially the same at the time of entering into the
agreement to swap assets; and (iv) at the time of the consummation of the
proposed Asset Swap, the percentage of any decline in the fair market value
(determined as aforesaid) of the asset or assets being acquired by the Company
and its Restricted Subsidiaries shall not be significantly greater than the
percentage of any decline in the fair market value (determined as aforesaid) of
the assets being disposed of by the Company or its Restricted Subsidiaries,
calculated from the time the agreement to swap assets was entered into.
Section 4.15. Corporate Existence.
Subject to Article 5 hereof, the Company and the Subsidiaries shall
do or cause to be done all things necessary to preserve and keep in full force
and effect (i) its corporate existence, and the corporate, partnership or other
existence of each of the Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Subsidiary and (ii) the rights (charter, partnership
agreement and statutory), licenses and franchises of the Company and the
Subsidiaries; provided, however, that the Company and the Subsidiaries shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of the Subsidiaries, if the Board of
Directors of the relevant Person shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Exchange Debentures.
Section 4.16. No Senior Subordinated Debt.
Notwithstanding the provisions of Section 4.9 hereof, the Company
shall not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to any
Exchange Debenture Senior Debt of the Company and senior in any respect in right
of payment to the Exchange Debentures; provided, however, that the foregoing
limitation shall not apply to distinctions between categories of Indebtedness
that exist by reason of any Liens arising or created in respect of some but not
all such Indebtedness.
Section 4.17. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any material respect in any business other than a
Permitted Business.
48
Section 4.18. Issuances and Sales of Capital Stock of Wholly Owned
Restricted Subsidiaries.
The Company (i) will not, and will not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Wholly Owned Restricted Subsidiary
of the Company to any Person (other than the Company or a Wholly Owned
Restricted Subsidiary of the Company), unless (a) such transfer, conveyance,
sale, lease or other disposition is of all the Capital Stock of such Wholly
Owned Restricted Subsidiary and (b) the Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with
Section 4.10 hereof and (ii) will not permit any Wholly Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly Owned Restricted
Subsidiary; provided that the Company may, and may permit any Wholly Owned
Restricted Subsidiary of the Company to, take any of the actions referred to in
(i) and (ii) above so long as immediately after giving effect to such action no
more than 10% of the Consolidated Net Tangible Assets of the Company and its
Subsidiaries is owned by other than Wholly Owned Restricted Subsidiaries of the
Company.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Exchange Debentures for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or of the Exchange Debentures unless such consideration is
offered to be paid or is paid to all Holders of the Exchange Debentures that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Substantially All
Assets.
The Company will not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets, in one or more related transactions, to another Person, and the Company
may not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions would, in the aggregate, result in a sale,
49
assignment, transfer, lease, conveyance, or other disposition of all or
substantially all of the properties or assets of the Company to another Person
unless (i) the Company is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (the "Surviving Entity") is a corporation organized or
existing under the laws of the United States, any state thereof or the District
of Columbia; (ii) the Surviving Entity (if the Company is not the continuing
obligor under this Exchange Debenture Indenture) assumes all the obligations of
the Company under the Exchange Debentures and this Exchange Debenture Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately before and after giving effect to such transaction or
series of transactions no Default or Event of Default exists; (iv) immediately
after giving effect to such transaction or series of transactions on a pro forma
basis (and treating any Indebtedness not previously an obligation of the Company
or any of its Subsidiary which becomes the obligation of the Company or any of
its Subsidiary as a result of such transaction or series of transactions as
having been incurred at the time of such transaction or series of transactions),
the Consolidated Net Worth of the Company and its Subsidiaries or the Surviving
Entity (if the Company is not the continuing obligor under this Exchange
Debenture Indenture) is equal to or greater than the Consolidated Net Worth of
the Company and its Subsidiaries immediately prior to such transaction or series
of transactions and (v) the Company or Surviving Entity (if the Company is not
the continuing obligor under this Exchange Debenture Indenture) will, at the
time of such transaction or series of transactions and after giving pro forma
effect thereto as if such transaction or series of transactions had occurred at
the beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the test set forth in the
first paragraph of Section 4.9 hereof. Notwithstanding the restrictions
described in the foregoing clauses (iv) and (v), any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company, and any Wholly Owned Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to another Wholly Owned Restricted Subsidiary.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.1 hereof, the Surviving Entity shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Exchange Debenture Indenture referring to the "Company" shall
refer instead to the Surviving Entity and not to the Company), and may exercise
every
50
right and power of the Company under this Exchange Debenture Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Exchange Debentures
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.1 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if (i) a default for 30 days in the
payment when due of interest on the Exchange Debentures (whether or not
prohibited by the subordination provisions herein); (ii) a default in payment
when due of the principal of or premium, if any, on the Exchange Debentures
(whether or not prohibited by the subordination provisions herein); (iii) the
failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described under Article 4 hereof; (iv) failure by the Company for 30
days after notice from the Trustee or the Holders of at least 25% in aggregate
principal amount of the Exchange Debentures then outstanding to comply with any
of its other agreements in this Exchange Debenture Indenture or the Exchange
Debentures; (v) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the date of the Exchange Debenture Indenture, which default (a)
is caused by a failure to pay principal of or premium, if any, or interest on
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there is then existing a
Payment Default or the maturity of which has been so accelerated, aggregates
$5.0 million or more; (vi) the failure by the Company or any of its Restricted
Subsidiaries to pay final, non-appealable judgments aggregating in excess of
$5.0 million, which judgments remain unpaid or discharged for a period of 60
days; (vii) the Company or any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law: (a) commences a
voluntary case or proceeding, (b) consents to the entry of an order for relief
against it in an involuntary case or proceeding, (c) consents to the appointment
of a Custodian of it or for all or substantially all of its property or (d)
makes a general
51
assignment for the benefit of its creditors; (viii) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for
relief against the Company or any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary, in
an involuntary case or proceeding, (b) appoints a Custodian of the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or for all or substantially all of the
property of the Company, any Significant Subsidiary or any group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary, or (c) orders
the liquidation of the Company, any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Exchange Debenture Indenture, and the
Company is required, within five business days of becoming aware of any Default
or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default described in
Section 6.1 (vii) or (viii) above) relating to the Company occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in principal amount of the then outstanding Exchange Debentures by written
notice to the Company and the Trustee, may declare the unpaid principal amount
of and any accrued and unpaid interest on all the Exchange Debentures to be due
and payable immediately. If payment of the Exchange Debentures is accelerated
because of an Event of Default, the Company or the Trustee shall notify the
holders of Designated Exchange Debenture Senior Debt of such acceleration. Upon
such declaration the principal and interest shall be due and payable
immediately; provided, however, that so long as any Designated Exchange
Debenture Senior Debt or any commitment therefor is outstanding, any such notice
or declaration shall not become effective until the earlier of (a) five Business
Days after such notice is delivered to the representative for the Designated
Exchange Debenture Senior Debt or (b) the acceleration of any Designated
Exchange Debenture Senior Debt and thereafter, payments on the Exchange
Debentures pursuant to this Article 6 shall be made only to the extent permitted
pursuant to Article 10 herein.
Notwithstanding the foregoing paragraph, in the case of an Event of
Default arising under Section 6.1 (vii) or (viii)
52
above, all outstanding Exchange Debentures will become due and payable without
further action or notice.
After a declaration of acceleration under this Exchange Debenture
Indenture, but before a judgment or decree for payment of principal, premium, if
any, and interest on the Exchange Debentures due under this Article 6 has been
obtained by the Trustee, Holders of a majority in principal amount of the then
outstanding Exchange Debentures by written notice to the Company and the Trustee
may rescind an acceleration and its consequences if (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay (a) all sums paid or advanced
by the Trustee under this Exchange Debenture Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and (b) all overdue interest on the Exchange Debentures, if any,
(ii) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (iii) all existing Events of Default (except
nonpayment of principal, premium, if any, or interest that has become due solely
because of the acceleration) have been cured or waived.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Exchange Debentures or to enforce the performance of
any provision of the Exchange Debentures or this Exchange Debenture Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Exchange Debentures or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a Exchange
Debenture in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 6.4. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the Exchange Debentures then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Exchange Debentures waive an existing Default or
Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of principal of, premium and liquidated damages,
if any, or interest on, the Exchange Debentures (including in connection with an
offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Exchange Debentures may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any
53
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Exchange Debenture Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
Section 6.5. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Exchange Debentures may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Exchange Debenture Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Exchange Debentures or that may involve the Trustee in personal liability it
being understood that (subject to Section 7.1) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial to
such holders.
Section 6.6. Limitation on Suits.
A Holder of an Exchange Debenture may pursue a remedy with respect
to this Exchange Debenture Indenture or the Exchange Debentures only if:
(a) the Holder of an Exchange Debenture gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Exchange Debentures make a written request to the Trustee to
pursue the remedy;
(c) such Holder of an Exchange Debenture or Holders of Exchange
Debentures offer and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Exchange Debentures do not give the Trustee
a direction inconsistent with the request.
A Holder of an Exchange Debenture may not use this Exchange Debenture Indenture
to prejudice the rights of another Holder of an Exchange Debenture or to obtain
a preference or priority over another Holder of an Exchange Debenture.
54
Section 6.7. Rights of Holders of Exchange Debentures to Receive
Payment.
Notwithstanding any other provision of this Exchange Debenture
Indenture, the right of any Holder of an Exchange Debenture to receive payment
of principal, premium, if any, and interest on the Exchange Debenture, on or
after the respective due dates expressed in the Exchange Debenture (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Exchange
Debentures and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Exchange Debentures allowed in any judicial proceedings relative
to the Company (or any other obligor upon the Exchange Debentures), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims 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 to the Trustee any amount due to 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 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or
55
otherwise. 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 Exchange
Debentures or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and may be a member of the creditors'
committee.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall, subject to the provisions of Article 10, pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.8 and 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Exchange Debentures for amounts due and unpaid
on the Exchange Debentures for principal, premium, if any, and accrued interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Exchange Debentures for principal, premium, if any, and
accrued interest, as the case may be, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Exchange Debentures pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Exchange Debenture Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Exchange Debenture pursuant to Section 6.7 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Exchange
Debentures.
56
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Exchange Debenture Indenture, and use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Exchange Debenture Indenture and the Trustee
need perform only those duties that are specifically set forth in this
Exchange Debenture Indenture and no others, and no implied covenants or
obligations shall be read into this Exchange Debenture Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any notices, requests, statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Exchange Debenture Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Exchange Debenture Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Exchange Debenture Indenture that in any
57
way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this
Section.
(e) No provision of this Exchange Debenture Indenture shall require
the Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Exchange Debenture Indenture at the request of any Holders, unless such Holder
shall have furnished to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
(f) 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.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Exchange Debenture Indenture.
(e) Unless otherwise specifically provided in this Exchange
Debenture Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Exchange Debenture Indenture at the
request or direction of any of the Holders unless such Holders shall have
furnished to the Trustee reasonable security or indemnity against the costs,
58
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) Except with respect to Sections 4.1 and 4.4 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 4.1, 4.4 and 6.1(1) or (2) hereof or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge. For the purposes of this clause (g)
only, "actual knowledge" shall mean the actual fact or statement of knowing,
without any duty to make investigation with regard thereto.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
(j) The permissive rights of the Trustee to perform the acts
enumerated in this Exchange Debenture Indenture shall not be construed as a duty
and the Trustee shall not be answerable for other than its negligence or willful
misconduct.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Exchange Debentures and may otherwise deal with the Company
or any Affiliate of the Company with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Exchange Debenture Indenture or the
Exchange Debentures, it shall not be accountable for the Company's use of the
proceeds from the Exchange Debentures or any money paid to the Company or upon
the Company's direction under any provision of this Exchange Debenture
Indenture, it shall not be responsible for the use or
59
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or in any
certificate delivered pursuant hereto or any statement in the Exchange
Debentures or any other document in connection with the sale of the Exchange
Debentures or pursuant to this Exchange Debenture Indenture other than its
certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is actually known to the Trustee, the Trustee shall mail to Holders of Exchange
Debentures a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on, any Exchange Debenture, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Exchange Debentures.
Section 7.6. Reports by Trustee to Holders of the Exchange
Debentures.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Exchange Debenture Indenture, and for so long as Exchange
Debentures remain outstanding, the Trustee shall mail to the Holders of the
Exchange Debentures a brief report dated as of such reporting date that complies
with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA ss. 313(b)(2) and transmit
by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Exchange Debentures shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Exchange Debentures are listed in
accordance with TIA ss. 313(d). The Company shall promptly notify the Trustee
when the Exchange Debentures are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Exchange Debenture Indenture and
services hereunder, including, without limitation, extraordinary services such
as default administration. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such
60
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Exchange Debenture
Indenture, including the costs and expenses of enforcing this Exchange Debenture
Indenture against the Company (including this Section 7.7) and investigating or
defending itself against any claim (whether asserted by the Company or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of their obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without their
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 are joint and
several and shall survive the satisfaction and discharge of this Exchange
Debenture Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Exchange Debentures on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Exchange Debentures. Such Lien shall
survive the satisfaction and discharge of this Exchange Debenture Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(9) or (10) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the
61
Company. The Holders of Exchange Debentures of a majority in principal amount of
the then outstanding Exchange Debentures may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Exchange Debentures
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Exchange Debentures of at least 10% in principal amount of the
then outstanding Exchange Debentures may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of an Exchange
Debenture who has been a Holder of an Exchange Debenture for at least six
months, fails to comply with Section 7.10, such Holder of an Exchange Debenture
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Exchange Debenture Indenture. The successor Trustee shall mail a
notice of its succession to Holders of the Exchange Debentures. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been
paid and subject to the Lien provided for in Section 7.7 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Company's
obligations under Section 7.7 hereof shall continue for the benefit of the
retiring Trustee.
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Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Exchange Debenture Indenture shall always have a Trustee who
satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is
subject to TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.2 or 8.3 hereof be applied to all outstanding Exchange
Debentures upon compliance with the conditions set forth below in this Article
8.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Exchange
Debentures on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the
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outstanding Exchange Debentures, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 hereof and the other Sections
of this Exchange Debenture Indenture referred to in (a) and (b) below, and to
have satisfied all its other obligations under such Exchange Debentures and this
Exchange Debenture Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Exchange
Debentures to receive payments in respect of the principal of, premium, if any,
and interest on such Exchange Debentures when such payments are due from the
trust fund described in Section 8.4 hereof, and as more fully set forth in such
Section, (b) the Company's obligations with respect to such Exchange Debentures
under Article 2 and Section 4.2 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be released from their
obligations under the covenants contained in Sections 4.3, 4.5, 4.7, 4.8, 4.9,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof and in
clause (iv) of Section 5.1 with respect to the outstanding Exchange Debentures
on and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Exchange Debentures shall thereafter be deemed
not "outstanding" for the purposes of any compliance certificate, direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Exchange Debentures shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Exchange Debentures, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant 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 6.1 hereof, but, except as specified above, the remainder of this
Exchange Debenture Indenture, such Exchange Debentures shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.1 hereof of
the option applicable to this Section
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8.3 hereof, subject to the satisfaction of the conditions set forth in Section
8.4 hereof, Sections 6.1(3) (but only with respect to the Company's failure to
observe or perform the covenants, conditions and agreements of the Company under
clause (iv) of Section 5.1), 6.1(4), 6.1(7) and 6.1(8) hereof shall not
constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Exchange Debentures:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Exchange Debentures, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest, on the outstanding Exchange Debentures on the stated maturity or on
the applicable redemption date, as the case may be, and the Company must specify
whether the Exchange Debentures are being defeased to maturity or to a
particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Exchange Debenture Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Exchange Debentures will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Exchange 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;
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(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Section 6.1(9) or 6.1(10) hereof is concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Exchange Debenture Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that 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;
(g) the Company shall deliver 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 Exchange Debentures over the other creditors of
the Company, or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.5. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Exchange
Debentures shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Exchange Debentures and this Exchange Debenture
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Exchange 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 cash or non-callable
Government Securities deposited pursuant to
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Section 8.4 hereof 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 outstanding Exchange Debentures.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.6. Repayment to Company.
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 Exchange Debenture and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Exchange Debenture
shall thereafter, as a 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
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 shall be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, 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 obligations of the Company under this Exchange Debenture
Indenture, the Exchange Debentures shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof, as the case may be;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Exchange Debenture following the
reinstatement of its obligations, the Company shall be
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subrogated to the rights of the Holders of such Exchange Debentures to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. With Consent of Holders of Exchange Debentures.
Except as provided below, this Exchange Debenture Indenture or the
Exchange Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Exchange Debentures
then outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Exchange
Debentures), and any existing default or compliance with any provision of this
Exchange Debenture Indenture or the Exchange Debentures may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Exchange Debentures (including consents obtained in connection with a tender
offer or exchange offer for the Exchange Debentures).
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company, authorizing the execution of any such amended
or supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Exchange Debentures
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee shall join with the Company in the execution of
such amended or supplemental indenture unless such amended or supplemental
indenture affects the Trustee's own rights, duties or immunities under this
indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Exchange
Debentures under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Exchange Debentures affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
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Section 9.2. Without Consent of Holders of Exchange Debentures.
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Exchange Debentures held by a non-consenting
Holder): (i) reduce the principal amount of the Exchange Debentures whose
Holders must consent to an amendment, supplement or waiver, (ii) reduce the
principal of or change the fixed maturity of any Exchange Debenture or alter the
provisions with respect to the redemption of the Exchange Debentures (except as
provided above in Sections 4.10 and 4.13 hereof), (iii) reduce the rate of or
change the time for payment of interest on any Exchange Debenture, (iv) waive a
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Exchange Debentures (except a rescission of acceleration of
the Exchange Debentures by the Holders of at least a majority in principal
amount of such Exchange Debentures and a waiver of the payment default that
resulted from such acceleration), (v) make any Exchange Debenture payable in
money other than that stated in the Exchange Debentures, (vi) make any change in
the provisions of this Exchange Debenture Indenture relating to waivers of past
Defaults or the rights of Holders of the Exchange Debentures to receive payments
of principal of or premium, if any, or interest on the Exchange Debentures or
(vii) make any change in the foregoing amendment and waiver provisions. In
addition, any amendment to the provisions contained in Sections 4.10 and 4.13
hereof or the provisions of Article 10 hereof will require the consent of the
Holders of at least 66 2/3% in principal amount of the Exchange Debentures then
outstanding if such amendment would adversely affect the rights of Holders of
such Exchange Debentures. However, no amendment may be made to the subordination
provisions of the Exchange Debenture Indenture that adversely affects the rights
of any holder of Exchange Debenture Senior Debt then outstanding unless the
holders of such Exchange Debenture Senior Debt (or any group or representative
thereof authorized to give a consent) consents to such change.
Notwithstanding the foregoing, without the consent of any Holder of
the Exchange Debentures the Company and the Trustee may amend or supplement this
Exchange Debenture Indenture or the Exchange Debentures to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Exchange Debentures in
addition to or in place of certificated Exchange Debentures, to provide for the
assumption of the Company's obligations to Holders of the Exchange Debentures in
the case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Exchange Debentures or that
does not adversely affect the legal rights under this Exchange Debenture
Indenture of any such Holder, to secure the Exchange Debentures or to comply
with requirements of the Commission in order to effect or maintain the
qualification of the Exchange Debenture Indenture under the Trust Indenture Act.
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Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Exchange Debenture Indenture
or the Exchange Debentures shall be set forth in an amended or supplemental
Exchange Debenture Indenture that complies with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of an Exchange Debenture is a continuing consent by
the Holder of an Exchange Debenture and every subsequent Holder of an Exchange
Debenture or portion of an Exchange Debenture that evidences the same debt as
the consenting Holder's Exchange Debenture, even if notation of the consent is
not made on any Exchange Debenture. However, any such Holder of an Exchange
Debenture or subsequent Holder of an Exchange Debenture may revoke the consent
as to its Exchange Debenture if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.5. Notation on or Exchange of Exchange Debentures.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Exchange Debenture thereafter authenticated. The
Company in exchange for all Exchange Debentures may issue and the Trustee shall
authenticate new Exchange Debentures that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Exchange
Debenture shall not affect the validity and effect of such amendment, supplement
or waiver.
Section 9.6. Trustee to Sign Amendment, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Exchange Debenture
Indenture until its respective Board of Directors approves it. In executing any
amended or supplemental indenture, the Trustee shall be entitled to receive and
(subject to Section 7.1) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Exchange Debenture
Indenture and that there has been compliance with all conditions precedent.
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ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate.
The Company agrees, and each Holder by accepting an Exchange
Debenture agrees, that (i) the Indebtedness evidenced by the Exchange
Debentures, including, but not limited to, the payment of principal of, premium,
if any, and interest on the Exchange Debentures, and any other payment
Obligation of the Company in respect of the Exchange Debentures (including any
obligation to repurchase the Exchange Debentures) is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full in cash of all Exchange Debenture Senior Debt of the Company
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed) (ii) the subordination is for the benefit of the Holders of
Exchange Debenture Senior Debt.
Section 10.2. Certain Definitions.
"Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
state law for the relief of debtors.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Exchange Debenture Senior Debt.
A "distribution" may consist of cash, securities or other property,
by set-off or otherwise.
All Designated Exchange Debenture Senior Debt now or hereafter
existing and all other Obligations relating thereto shall not be deemed to have
been paid in full unless the holders or owners thereof shall have received
payment in full in cash (or other form of payment consented to by the holders of
such Designated Exchange Debenture Senior Debt) with respect to such Designated
Exchange Debenture Senior Debt and all other Obligations with respect thereto.
Section 10.3. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of property or securities to
creditors of the Company in a liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, or in an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities:
(1) the holders of Exchange Debenture Senior Debt of the Company
shall be entitled to receive payment in full in cash of all Obligations in
respect of such Exchange Debenture Senior Debt (including interest after
the
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commencement of any such proceeding at the rate specified in the
applicable Exchange Debenture Senior Debt, whether or not a claim for such
interest would be allowed in such proceeding) before the Holders of
Exchange Debentures shall be entitled to receive any payment with respect
to the Exchange Debentures and related Obligations ; and
(2) until all Obligations with respect to Exchange Debenture Senior
Debt of the Company (as provided in subsection (1) above) are paid in full
in cash, any payment or distribution to which the Holders of Exchange
Debentures would be entitled shall be made to holders of Exchange
Debenture Senior Debt of the Company (except that Holders of Exchange
Debentures may receive securities that are subordinated at least to the
same extent as the Exchange Debentures to Exchange Debenture Senior Debt
and any securities issued in exchange for Exchange Debenture Senior Debt
and payments made from any defeasance trust created pursuant to Section
8.1 hereof provided that the applicable deposit does not violate Article 8
or 10 of this Exchange Debenture Indenture).
Under the circumstances described in this Section 10.3, the Company
or any receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar person making any payment or distribution of cash or other property or
securities is authorized or instructed to make any payment or distribution to
which the Holders of the Exchange Debentures would otherwise be entitled (other
than securities that are subordinated at least to the same extent as the
Exchange Debentures to Exchange Debenture Senior Debt and any securities issued
in exchange for Exchange Debenture Senior Debt and payments made from any
defeasance trust referred to in the second parenthetical of clause (a)(2) above,
which shall be delivered or paid to the Holders of Exchange Debentures as set
forth in such clauses) directly to the holders of the Exchange Debenture Senior
Debt of the Company (pro rata to such holders on the basis of the respective
amounts of Exchange Debenture Senior Debt of the Company held by such holders)
or their Representatives, or to any trustee or trustees under any other
indenture pursuant to which any such Exchange Debenture Senior Debt may have
been issued, as their respective interests appear, to the extent necessary to
pay all such Exchange Debenture Senior Debt in full, in cash or cash equivalents
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Exchange Debenture Senior Debt.
To the extent any payment of or distribution in respect of Exchange
Debenture Senior Debt, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such
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payment or distribution is recovered by, or paid over to, such receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person,
the Exchange Debenture Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred. To the extent the obligation to repay any
Exchange Debenture Senior Debt is declared to be fraudulent, invalid or
otherwise set aside under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then the obligation so declared
fraudulent, invalid or otherwise set aside (and all other amounts that
would come due with respect thereto had such obligation not been so
affected) shall be deemed to be reinstated and outstanding as Exchange
Debenture Senior Debt for all purposes hereof as if such declaration,
invalidity or setting aside had not occurred.
Section 10.4. Default on Designated Exchange Debenture Senior Debt.
The Company may not make any payment (whether by redemption,
purchase, retirements, defeasance or otherwise) upon or in respect of the
Exchange Debentures (other than securities that are subordinated at least to the
same extent as the Exchange Debentures to Exchange Debenture Senior Debt and any
securities issued in exchange for Exchange Debenture Senior Debt and payments
and other distributions made from any defeasance trust created pursuant to
Section 8.1 hereof if the applicable deposit does not violate Article 8 or 10 of
this Exchange Debenture Indenture) until all principal and other Obligations
with respect to the Exchange Debenture Senior Debt of the Company have been paid
in full if:
(i) a default in the payment of any principal of, premium, if any,
or interest on Designated Exchange Debenture Senior Debt occurs; or
(ii) any other default occurs and is continuing with respect to
Designated Exchange Debenture Senior Debt that permits, or with the giving
of notice or passage of time or both (unless cured or waived) would
permit, holders of the Designated Exchange Debenture Senior Debt as to
which such default relates to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from the
Company or the holders of any Designated Exchange Debenture Senior Debt.
If the Trustee receives any such Payment Blockage Notice, no subsequent
Payment Blockage Notice shall be effective for purposes of this Section
unless and until 360 days shall have elapsed since the date of
commencement of the payment blockage period resulting from the immediately
prior Payment Blockage Notice. No nonpayment default in respect of any
Designated Exchange Debenture Senior Debt that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the
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Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
The Company shall resume payments on and distributions in respect of
the Exchange Debentures upon:
(1) in the case of a default referred to in Section 10.4(i) hereof
the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 10.4(ii) hereof,
the earliest of (1) the date on which such nonpayment default is cured or
waived, (2) the date the applicable Payment Blockage Notice is retracted
by written notice to the Trustee and (3) 179 days after the date on which
the applicable Payment Blockage Notice is received unless (A) the maturity
of any Designated Exchange Debenture Senior Debt has been accelerated or
(B) a Default or Event of Default under Section 6.1(vii) or (viii) has
occurred and is continuing,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.5. Acceleration of Exchange Debentures.
If payment of the Exchange Debentures is accelerated because of an
Event of Default, the Company shall promptly notify holders of Exchange
Debenture Senior Debt of the acceleration.
Section 10.6. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment or
distribution of or in respect of any Obligations with respect to the Exchange
Debentures at a time when such payment or distribution is prohibited by Section
10.3 or Section 10.4 hereof, such payment or distribution shall be held by the
Trustee (if the Trustee has actual knowledge that such payment or distribution
is prohibited by Section 10.3 or 10.4) or such Holder, in trust for the benefit
of, and shall be paid forthwith over and delivered to, the holders of Exchange
Debenture Senior Debt as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which such Exchange
Debenture Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Exchange Debenture Senior Debt remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their terms, after giving effect to
any concurrent payment or distribution to or for the holders of Exchange
Debenture Senior Debt.
With respect to the holders of Exchange Debenture Senior Debt, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in
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this Article 10, and no implied covenants or obligations with respect to the
holders of Exchange Debenture Senior Debt shall be read into this Exchange
Debenture Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Exchange Debenture Senior Debt, and, except
as provided in Section 10.12, shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders of Exchange
Debentures or the Company or any other Person money or assets to which any
holders of Exchange Debenture Senior Debt shall be entitled by virtue of this
Article 10, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
Section 10.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any Obligations
with respect to the Exchange Debentures to violate this Article, but failure to
give such notice shall not affect the subordination of the Exchange Debentures
to the Exchange Debenture Senior Debt as provided in this Article.
Section 10.8. Subrogation.
After all Exchange Debenture Senior Debt is paid in full and until
the Exchange Debentures are paid in full, Holders of Exchange Debentures shall
be subrogated (equally and ratably with all other Indebtedness pari passu with
the Exchange Debentures) to the rights of holders of Exchange Debenture Senior
Debt to receive distributions and payments applicable to Exchange Debenture
Senior Debt to the extent that distributions and payments otherwise payable to
the Holders of Exchange Debentures have been applied to the payment of Exchange
Debenture Senior Debt. A payment or distribution made under this Article to
holders of Exchange Debenture Senior Debt that otherwise would have been made to
Holders of Exchange Debentures is not, as between the Company and Holders of
Exchange Debentures, a payment by the Company on the Exchange Debentures.
Section 10.9. Relative Rights.
This Article defines the relative rights of Holders of Exchange
Debentures and holders of Exchange Debenture Senior Debt. Nothing in this
Exchange Debenture Indenture shall:
(1) impair, as between the Company and Holders of Exchange
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Exchange Debentures
in accordance with their terms;
(2) affect the relative rights of Holders of Exchange Debentures and
creditors of the Company other than their
75
rights in relation to holders of Exchange Debenture Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Exchange Debenture Senior Debt to receive
distributions and payments otherwise payable to Holders of Exchange
Debentures.
If the Company fails because of this Article to pay principal of or
interest on a Exchange Debenture on the due date, the failure is still a Default
or Event of Default.
Section 10.10. Subordination May Not Be Impaired by Company.
No right of any present or future holders of any Exchange Debenture
Senior Debt to enforce subordination as provided in this Article Ten will at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by noncompliance by the Company with the terms of this Exchange
Debenture Indenture, regardless of any knowledge thereof that any such holder of
Exchange Debenture Senior Debt may have or otherwise be charged with. The
provisions of this Article Ten are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Exchange Debenture Senior Debt.
Section 10.11. Payment, Distribution or Notice to Representative.
Whenever a payment or distribution is to be made or a notice given
to holders of Exchange Debenture Senior Debt, the distribution may be made and
the notice given to their Representative.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article 10, the Trustee and the Holders of Exchange
Debentures shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such Representative or of
the liquidating trustee or agent or other Person making any payment or
distribution to the Trustee or to the Holders of Exchange Debentures for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Exchange Debenture Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10.
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Section 10.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Exchange Debenture Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying Agent
may continue to make payments on the Exchange Debentures, unless the Trustee
shall have received at its Corporate Trust Office at least one Business Day
prior to the date of such payment written notice of facts that would cause the
payment of any Obligations with respect to the Exchange Debentures to violate
this Article, which notice shall specifically refer to Section 10.3 or 10.4
hereof. Only the Company or a Representative may give the notice. Nothing in
this Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold
Exchange Debenture Senior Debt with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
Section 10.13. Authorization to Effect Subordination.
Each Holder by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.9 hereof at least 30 days before the expiration of the time to file such
claim, each lender under the Credit Facility is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Exchange Debentures.
Section 10.14. Amendments.
No amendment may be made to the provisions of or the definitions of
any terms appearing in this Article 10, or to the provisions of Section 6.2
relating to the Designated Exchange Debenture Senior Debt, that adversely
affects the rights of any holder of Exchange Debenture Senior Debt then
outstanding unless the holders of such Exchange Debenture Senior Debt (or any
group or Representative authorized to give a consent) consent to such change.
Section 10.15. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 10.9 of this
Exchange Debenture Indenture, the holders of Exchange Debenture Senior Debt may,
at any time and from time to time, without the consent of or notice to the
Trustee or the
77
Holders, without incurring responsibility to the Holders and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders to the holders of Exchange Debenture Senior Debt, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Exchange Debenture
Senior Debt or any instrument evidencing the same or any agreement under which
Exchange Debenture Senior Debt is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Exchange Debenture Senior Debt; (c) release any Person liable in any
manner for the collection of Exchange Debenture Senior Debt; and (d) exercise or
refrain from exercising any rights against the Company and any other Person.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Exchange Debenture Indenture limits,
qualifies or conflicts with the duties imposed by TIA ss. 318(c), the imposed
duties shall control. If any provisions of this Exchange Debenture Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the letter provision shall be deemed to apply to this Exchange
Debenture Indenture as so modified or excluded, as the case may be.
Section 11.2. Notices.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Cumulus Media Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
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If to the Trustee:
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if by telecopy; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.3. Communication by Holders of Exchange Debentures with
Other Holders of Exchange Debentures.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Exchange Debenture Indenture or
the Exchange Debentures. The Company the Trustee, the Registrar and anyone else
shall have the protection of TIA ss. 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Exchange Debenture Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include
79
the statements set forth in Section 11.5 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Exchange Debenture Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Exchange Debenture Indenture (other
than a certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the
provisions of TIA ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(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 such Person, he or she has
made such examination or investigation as is necessary to enable him or
her 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 or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section 11.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.7. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Exchange Debentures or this Exchange Debenture Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.
80
Each Holder of Exchange Debentures, by accepting a Exchange Debenture, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Exchange Debentures. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
Section 11.8. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS EXCHANGE DEBENTURE INDENTURE AND THE EXCHANGE DEBENTURES.
Section 11.9. No Adverse Interpretation of Other Agreements.
This Exchange Debenture Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Company or their respective
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Exchange Debenture Indenture.
Section 11.10. Successors.
All agreements of the Company in this Exchange Debenture Indenture,
the Exchange Debentures shall bind its respective successors. All agreements of
the Trustee in this Exchange Debenture Indenture shall bind its successors.
Section 11.11. Severability.
In case any provision in this Exchange Debenture Indenture or in the
Exchange 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 11.12. Counterpart Originals.
The parties may sign any number of copies of this Exchange Debenture
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 11.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Exchange Debenture Indenture have been inserted
for convenience of reference only, are not to be considered a part of this
Exchange Debenture Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.
[Signatures on following page]
81
SIGNATURES
Dated as of
_________, 1998
CUMULUS MEDIA INC.
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
[TRUSTEE]
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT A
(Face of Exchange Debenture)
_____% Subordinated Exchange Debentures due 2009
No. $__________
CUSIP Number:
CUMULUS MEDIA INC.
promises to pay to
or registered assigns,
the principal sum of
DOLLARS on __________, 2009.
Interest Payment Dates: ____________ and _________________
Record Dates: ______________________ and _________________
Dated: _______________, ____
CUMULUS MEDIA INC.
By_______________________
Name:
Title:
By_______________________
Name:
Title:
This is one of the Exchange Debentures referred
to in the within-mentioned (SEAL)
Exchange Debenture Indenture:
as Trustee
By____________________________
Authorized Signatory
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Back of Exchange Debenture)
___% Subordinated Exchange Debentures due 2009
Capitalized terms used herein shall have the meanings assigned to
them in the Exchange Debenture Indenture referred to below unless otherwise
indicated.
1. Interest. Cumulus Media Inc., an Illinois corporation (the
"Company"), promises to pay interest on the principal amount of this Exchange
Debenture at the rate of ___% per annum, which interest shall be payable in cash
semiannually in arrears on each _______________ and ___________, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"); provided that the first Interest Payment Date shall be
_____________, 1998. Interest on the Exchange Debentures will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. On each Interest Payment Date the Company will
pay interest to the Person who is the Holder of record of this Exchange
Debenture as of the close of business on the _____________ or ____________
immediately preceding such Interest Payment Date, even if this Exchange
Debenture is cancelled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Exchange Debenture
Indenture with respect to defaulted interest. Principal, premium, if any, and
interest on this Exchange Debenture will be payable at the office or agency of
the Company maintained for such purpose within the City and State of New York
or, in the event the Exchange Debentures do not remain in book-entry form, at
the option of the Company, payment of interest may be made by check mailed to
the Holder of this Exchange Debenture at its address set forth in the register
of Holders of Exchange Debentures; provided that all payments with respect to
the Global Exchange Debentures and definitive Exchange Debentures having an
aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be 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.
3. Paying Agent and Registrar. Initially, ______________________,
the Trustee under the Exchange Debenture Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any
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Holder. The Company or any of the Company's Subsidiaries may act in any such
capacity.
4. Exchange Debenture Indenture. The Company issued the Exchange
Debentures under an Exchange Debenture Indenture dated as of _____________,
1998, ("Exchange Debenture Indenture") between the Company and the Trustee. The
terms of the Exchange Debentures include those stated in the Exchange Debenture
Indenture and those made part of the Exchange Debenture Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx.
77aaa-77bbbb). The Exchange Debentures are subject to all such terms, and
Holders are referred to the Exchange Debenture Indenture and such Act for a
statement of such terms. The Exchange Debentures are general unsecured
obligations of the Company equal in an aggregate principal amount to
$133,000,000 and will mature on ________________, 2009.
5. Optional Redemption.
(a) Except as otherwise described below, the Exchange Debentures are
not redeemable at the Company's option prior to ____________, 2003. Thereafter,
the Exchange Debentures will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on
____________ of the years indicated below:
Year Percentage
2003.........................................
2004.........................................
2005.........................................
2006.........................................
2007 and thereafter.......................... 100.0000%
(b) Prior to ____________, 2001 the Company may, at its option, on
any one or more occasions, redeem up to 35% of the original aggregate principal
amount of Exchange Debentures at a redemption price equal to _______% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date, with the net proceeds of one or more Equity Offerings (as
defined in the Exchange Debenture Indenture) of the Company; provided that at
least 65% of the original aggregate principal amount of Exchange Debentures
remain outstanding immediately after the occurrence of such redemption; and
provided, further, that any such redemption shall occur within 90 days after the
date of the closing of any such Equity Offering (as defined in the Exchange
Debenture Indenture).
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6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Exchange Debentures.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of
Exchange Debentures shall have the right to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Exchange Debentures pursuant to the offer described below (the "Change
of Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest, if any, thereon to
the date of purchase (the "Change of Control Payment"). The right of the Holders
of the Exchange Debentures to require the Company to repurchase such Exchange
Debentures upon a Change of Control may not be waived by the Trustee without the
approval of the Holders of the Exchange Debentures required by Section 9.2 of
the Exchange Debenture Indenture. Within 30 days following any Change of
Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Exchange Debentures pursuant to the procedures required by the
Exchange Debenture Indenture and described in such notice. The Change of Control
Payment shall be made on a business day not less than 30 days nor more than 60
days after such notice is mailed. The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Exchange Debentures as a result of a
Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales permitted by the Exchange Debenture Indenture, when the aggregate amount
of Excess Proceeds exceeds $5.0 million, the Company shall make an Asset Sale
Offer to purchase the maximum principal amount of Exchange Debentures and any
other Exchange Debenture Pari Passu Debt to which the Asset Sale Offer applies
that may be purchased out of the Excess Proceeds, at an offer price in cash in
an amount equal to, in the case of the Exchange Debentures, 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase or, in the case of any Exchange Debenture Pari Passu Debt, 100% of
the principal amount thereof (or with respect to discount Exchange Debenture
Pari Passu Debt, the accreted value thereof) on the date of purchase, in each
case, in accordance with the procedures set forth in Section 3.9 of the Exchange
Debenture Indenture or the agreements governing the Exchange Debenture Pari
Passu Debt, as applicable. To the extent that the aggregate principal amount (or
accreted value, as the case may be) of Exchange Debentures, and Exchange
Debenture Pari Passu
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Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Company may use any remaining Excess Proceeds for general corporate
purposes. If the sum of (i) the aggregate principal amount of Exchange
Debentures surrendered by Holders thereof and (ii) the aggregate principal
amount or accreted value, as the case may be, of Exchange Debenture Pari Passu
Debt surrendered by holders or lenders thereof exceeds the amount of Excess
Proceeds, the Trustee and the trustee or other lender representative for the
Exchange Debenture Pari Passu Debt shall select the Exchange Debentures and the
other Exchange Debenture Pari Passu Debt to be purchased on a pro rata basis,
based on the aggregate principal amount (or accreted value, as applicable)
thereof surrendered in such Asset Sale Offer. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
8. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Exchange Debentures are to be redeemed at its registered address.
Exchange Debentures in denominations larger than $1,000 may be redeemed in part
but only in integral multiples of $1,000, unless all of the Exchange Debentures
held by a Holder are to be redeemed. On and after the redemption date interest
ceases to accrue on the aggregate principal amount of the Exchange Debentures
called for redemption.
9. Denominations, Transfer, Exchange. The Exchange Debentures may be
issued initially in the form of one or more fully registered Global Exchange
Debentures. The Exchange Debentures may also be issued in registered form
without coupons in minimum denominations of $1,000 and integral multiples of
$1,000. The transfer of Exchange Debentures may be registered and Exchange
Debentures may be exchanged as provided in the Exchange Debenture Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Exchange
Debenture Indenture. The Company need not exchange or register the transfer of
any Exchange Debenture or portion of a Exchange Debenture selected for
redemption, except for the unredeemed portion of any Exchange Debenture being
redeemed in part. Also, it need not exchange or register the transfer of any
Exchange Debenture for a period of 15 days before a selection of Exchange
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Exchange
Debenture may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Exchange Debenture Indenture or the Exchange Debentures may be amended or
supplemented with the
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consent of the Holders of at least a majority in aggregate principal amount of
the Exchange Debentures then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or the tender offer or
exchange offer for, such Exchange Debentures), and any existing Default or Event
of Default under, or compliance with any provision of the Exchange Debenture
Indenture or the Exchange Debentures may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Exchange
Debentures (including consents obtained in connection with a tender offer or
exchange offer for the Exchange Debentures). Without the consent of any Holder
of a Exchange Debenture, the Exchange Debenture Indenture or the Exchange
Debentures may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Exchange Debentures in addition to
or in place of certificated Exchange Debentures, to provide for the assumption
of the Company's obligations to Holders of the Exchange Debentures in case of a
merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Exchange Debentures or that does not
adversely affect the legal rights under the Exchange Debenture Indenture of any
such Holder, or to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Exchange Debenture Indenture under
the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default
for 30 consecutive days in the payment when due of interest on the Exchange
Debentures (whether or not prohibited by the provisions of Article 10 of the
Exchange Debenture Indenture); (ii) default in payment when due of the principal
of or premium, if any, on the Exchange Debentures (whether or not prohibited by
the provisions of Article 10 of the Exchange Debenture Indenture); (iii) failure
by the Company to comply with the provisions of Article 4 of the Exchange
Debenture Indenture; (iv) failure by the Company for 30 consecutive days after
notice from the Trustee or the Holders of at least 25% in aggregate principal
amount of the Exchange Debentures then outstanding to comply with any of its
other agreements in the Exchange Debenture Indenture or the Exchange Debentures;
(v) a default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of the Exchange Debenture Indenture, which default (a) is caused
by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under
A-6
which there is then existing a Payment Default or the maturity of which has been
so accelerated, aggregates $5.0 million or more; (vi) the failure by the Company
or any of its Restricted Subsidiaries to pay final, non-appealable judgments
aggregating in excess of $5.0 million, which judgments remain unpaid or
discharged for a period of 60 days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary. If any Event of Default (other than an Event of Default described in
clause (vii) above) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Exchange Debentures may
declare all the Exchange Debentures to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary, all outstanding Exchange Debentures will
become due and payable without further action or notice. Holders of the Exchange
Debentures may not enforce the Exchange Debenture Indenture or the Exchange
Debentures except as provided in the Exchange Debenture Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Exchange Debentures may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Exchange Debentures
notice of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Exchange Debentures then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Exchange Debentures
waive any existing Default or Event of Default and its consequences under the
Exchange Debenture Indenture except a continuing Default or Event of Default in
the payment of interest or premium on, or the principal of, the Exchange
Debentures. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Exchange Debenture Indenture, and the
Company is required, within 5 Business days after becoming aware of any Default
or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Subordination. The Exchange Debentures are subordinated to
Exchange Debenture Senior Debt of the Company. To the extent provided in the
Exchange Debenture Indenture, Exchange Debenture Senior Debt must be paid before
the Exchange Debentures may be paid. The Company agrees, and each Holder by
accepting a Exchange Debenture agrees, that the Indebtedness evidenced by the
Exchange Debentures, including, but not limited to, the payment of principal of,
premium, if any, and interest on the Exchange Debentures, and any other payment
Obligation of the Company in respect of the Exchange Debentures is subordinated
in
A-7
right of payment, to the extent and in the manner provided in the Exchange
Debenture Indenture, to the prior payment in full in cash of all Exchange
Debenture Senior Debt of the Company (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and authorizes the Trustee
to give effect and appoints the Trustee as attorney-in-fact for such purpose.
14. Trustee Dealings with Company. The Exchange Debenture Indenture
contains certain limitations on the rights of the Trustee, should it become a
creditor of the Company, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue or resign.
15. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Exchange Debentures or the Exchange
Debenture Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Exchange Debentures, by
accepting a Exchange Debenture, waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Exchange
Debentures. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
16. Authentication. This Exchange Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act.
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Exchange Debentures and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Exchange Debentures or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
A-8
The Company will furnish to any Holder upon written request and
without charge a copy of the Exchange Debenture Indenture. Requests may be made
to:
Cumulus Media, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Secretary
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. No.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
________________________________________________________________________________
Date: __________________
Your Signature: ________________________________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:*__________________________________________
----------
(*) Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor acceptable to the
Trustee).
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Exchange Debenture purchased by
the Company pursuant to Section 4.10 or 4.13 of the Exchange Debenture
Indenture, check the box below:
|_| Section 4.10 |_| Section 4.13
If you want to elect to have only part of the Exchange Debenture
purchased by the Company pursuant to Section 4.10 or Section 4.13 of the
Exchange Debenture Indenture, state the principal amount you elect to have
purchased: $______________
Date: Your Signature:
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:*___________________________________________
----------
(*) Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor acceptable to the
Trustee).
A-11
EXHIBIT B
(Form of Legend for Global Exchange Debenture)
Unless and until it is exchanged in whole or in part for Exchange
Debentures in definitive form, this Exchange Debenture may not be
transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. Unless
this certificate is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), to
the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such
other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be 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.
B-1
SCHEDULE OF EXCHANGES OF DEFINITIVE EXCHANGE DEBENTURES
[To be attached to Global Exchange Debenture]
The following exchanges of a part of this Global Exchange Debenture
for definitive Exchange Debentures have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Exchange Signature of authorized
Principal Amount Principal Amount Debenture following officer of Trustee
of this Global of this Global such decrease (or or Exchange Debenture
Date of Exchange Exchange Debenture Exchange Debenture increase) Custodian
---------------- ------------------ ------------------ --------- ---------
B-2
CROSS-REFERENCE TABLE*
Trust Exchange Debenture Indenture Exchange Debenture Indenture
Act Section Section
310 (a)(1) ................................................. 7.10
(a)(2) ................................................. 7.10
(a)(3) ................................................. N.A.
(a)(4) ................................................. N.A.
(a)(5) ................................................. 7.10
(b) ................................................. 7.10
(c) ................................................. N.A.
311 (a) ................................................. 7.11
(b) ................................................. 7.11
(c) ................................................. N.A.
312 (a) ................................................. 2.5
(b) ................................................. 12.3
(c) ................................................. 12.3
313 (a) ................................................. 7.6
(b)(1) ................................................. N.A.
(b)(2) ................................................. 7.7
(c) ................................................. 7.6; 12.2
(d) ................................................. 7.6
314 (a) ................................................. 4.3; 12.2
(b) ................................................. N.A.
(c)(1) ................................................. 12.4
(c)(2) ................................................. 12.4
(c)(3) ................................................. N.A.
(d) ................................................. 10.3-10.5
(e) ................................................. 12.5
(f) ................................................. N.A.
315 (a) ................................................. 7.1
(b) ................................................. 7.5; 12.2
(c) ................................................. 7.1
(d) ................................................. 7.1
(e) ................................................. 6.11
316 (a)(last sentence)....................................... 2.9
(a)(1)(A)................................................ 6.5
(a)(1)(B)................................................ 6.4
(a)(2) .................................................. N.A.
(b) .................................................. 6.7
(c) .................................................. 2.12
317 (a)(1) .................................................. 6.8
(a)(2) .................................................. 6.9
(b) .................................................. 2.4
318 (a) .................................................. 12.1
(b) .................................................. N.A.
(c) .................................................. 12.1
-------------
N.A. means not applicable.
B-3
*This Cross-Reference Table is not part of the Exchange Debenture
Indenture.
B-4
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE.............................. 1
Section 1.1. Definitions.......................................... 1
Section 1.2. Other Definitions.................................... 19
Section 1.3. Incorporation By Reference of Trust Indenture Act.... 19
Section 1.4. Rules of Construction................................ 20
ARTICLE 2
THE EXCHANGE DEBENTURES......................... 20
Section 2.1. Form and Dating...................................... 20
Section 2.2. Execution and Authentication......................... 21
Section 2.3. Registrar and Paying Agent........................... 22
Section 2.4. Paying Agent to Hold Money in Trust.................. 22
Section 2.5. Holder Lists......................................... 23
Section 2.6. Transfer and Exchange................................ 23
Section 2.7. Replacement Exchange Debentures...................... 24
Section 2.8. Outstanding Exchange Debentures...................... 24
Section 2.9. Treasury Exchange Debentures......................... 25
Section 2.10. CUSIP Number......................................... 25
Section 2.11. Cancellation......................................... 26
Section 2.12. Defaulted Interest................................... 26
Section 2.13. Book-Entry Provisions for Global Exchange
Debentures........................................ 26
ARTICLE 3
REDEMPTION AND PREPAYMENT........................ 28
Section 3.1. Notices to Trustee................................... 28
Section 3.2. Selection of Exchange Debentures to Be Redeemed...... 28
Section 3.3. Notice of Redemption................................. 29
Section 3.4. Effect of Notice of Redemption....................... 30
Section 3.5. Deposit of Redemption Price.......................... 30
Section 3.6. Exchange Debentures Redeemed in Part................. 31
Section 3.7. Optional Redemption.................................. 31
Section 3.8. Mandatory Redemption................................. 32
Section 3.9. Offer to Purchase By Application of Excess
Proceeds.......................................... 32
ARTICLE 4
COVENANTS................................ 34
Section 4.1. Payment of Exchange Debentures....................... 34
Section 4.2. Maintenance of Office or Agency...................... 35
Section 4.3. Reports.............................................. 35
Section 4.4. Compliance Certificate............................... 36
Section 4.5. Taxes................................................ 37
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Section 4.6. Stay, Extension and Usury Laws....................... 37
Section 4.7. Restricted Payments.................................. 37
Section 4.8. Dividend and Other Payment Restrictions Affecting
Subsidiaries...................................... 40
Section 4.9. Incurrence of Indebtedness and Issuance of
Preferred Stock................................... 41
Section 4.10. Asset Sales.......................................... 43
Section 4.11. Transactions with Affiliates......................... 44
Section 4.12. Liens................................................ 45
Section 4.13. Offer to Repurchase Upon Change of Control........... 45
Section 4.14. Asset Swaps.......................................... 46
Section 4.15. Corporate Existence.................................. 47
Section 4.16. No Senior Subordinated Debt.......................... 47
Section 4.17. Business Activities.................................. 47
Section 4.18. Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries..................... 48
Section 4.19. Payments for Consent................................. 48
ARTICLE 5
SUCCESSORS................................ 48
Section 5.1. Merger, Consolidation, or Sale of Substantially
All Assets........................................ 48
Section 5.2. Successor Corporation Substituted.................... 49
ARTICLE 6
DEFAULTS AND REMEDIES.......................... 50
Section 6.1. Events of Default.................................... 50
Section 6.2. Acceleration......................................... 51
Section 6.3. Other Remedies....................................... 52
Section 6.4. Waiver of Past Defaults.............................. 52
Section 6.5. Control by Majority.................................. 53
Section 6.6. Limitation on Suits.................................. 53
Section 6.7. Rights of Holders of Exchange Debentures to
Receive Payment................................... 54
Section 6.8. Collection Suit by Trustee........................... 54
Section 6.9. Trustee May File Proofs of Claim..................... 54
Section 6.10. Priorities........................................... 55
Section 6.11. Undertaking for Costs................................ 55
ARTICLE 7
TRUSTEE................................. 56
Section 7.1. Duties of Trustee.................................... 56
Section 7.2. Rights of Trustee.................................... 57
Section 7.3. Individual Rights of Trustee......................... 58
Section 7.4. Trustee's Disclaimer................................. 58
Section 7.5. Notice of Defaults................................... 59
Section 7.6. Reports by Trustee to Holders of the Exchange
Debentures........................................ 59
Section 7.7. Compensation and Indemnity........................... 59
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Section 7.8. Replacement of Trustee.............................. 60
Section 7.9. Successor Trustee by Merger, etc. .................. 62
Section 7.10. Eligibility; Disqualification....................... 62
Section 7.11. Preferential Collection of Claims Against Company... 62
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE................. 62
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance....................................... 62
Section 8.2. Legal Defeasance and Discharge...................... 62
Section 8.3. Covenant Defeasance................................. 63
Section 8.4. Conditions to Legal or Covenant Defeasance.......... 64
Section 8.5. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.... 65
Section 8.6. Repayment to Company................................ 66
Section 8.7. Reinstatement....................................... 66
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER..................... 67
Section 9.1. With Consent of Holders of Exchange Debentures...... 67
Section 9.2. Without Consent of Holders of Exchange Debentures... 68
Section 9.3. Compliance with Trust Indenture Act................. 69
Section 9.4. Revocation and Effect of Consents................... 69
Section 9.5. Notation on or Exchange of Exchange Debentures...... 69
Section 9.6. Trustee to Sign Amendment, etc. .................... 69
ARTICLE 10
SUBORDINATION.............................. 70
Section 10.1. Agreement to Subordinate............................ 70
Section 10.2. Certain Definitions................................. 70
Section 10.3. Liquidation; Dissolution; Bankruptcy................ 70
Section 10.4. Default on Designated Exchange Debenture Senior
Debt............................................. 72
Section 10.5. Acceleration of Exchange Debentures................. 73
Section 10.6. When Distribution Must Be Paid Over................. 73
Section 10.7. Notice by Company................................... 74
Section 10.8. Subrogation......................................... 74
Section 10.9. Relative Rights..................................... 74
Section 10.10. Subordination May Not Be Impaired by Company........ 75
Section 10.11. Payment, Distribution or Notice to Representative... 75
Section 10.12. Rights of Trustee and Paying Agent.................. 76
Section 10.13. Authorization to Effect Subordination............... 76
Section 10.14. Amendments.......................................... 76
Section 10.15. No Waiver of Subordination Provisions............... 76
ARTICLE 11
MISCELLANEOUS.............................. 77
Section 11.1. Trust Indenture Act Controls........................ 77
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Section 11.2. Notices............................................. 77
Section 11.3. Communication by Holders of Exchange Debentures
with Other Holders of Exchange Debentures........... 78
Section 11.4. Certificate and Opinion as to Conditions
Precedent........................................ 78
Section 11.5. Statements Required in Certificate or Opinion....... 79
Section 11.6. Rules by Trustee and Agents......................... 79
Section 11.7. No Personal Liability of Directors, Officers,
Employees and Stockholders....................... 79
Section 11.8. Governing Law....................................... 80
Section 11.9. No Adverse Interpretation of Other Agreements....... 80
Section 11.10. Successors.......................................... 80
Section 11.11. Severability........................................ 80
Section 11.12. Counterpart Originals............................... 80
Section 11.13. Table of Contents, Headings, Etc.................... 80
EXHIBITS
Exhibit A FORM OF EXCHANGE DEBENTURE
EXHIBIT B FORM OF LEGEND FOR GLOBAL EXCHANGE DEBENTURE
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