Exhibit 4.49
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GRANITE BROADCASTING CORPORATION
TO
THE BANK OF NEW YORK
Trustee
--------------------
Indenture
Dated as of May 11, 1998
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Up to $200,000,000
8 7/8% SENIOR SUBORDINATED NOTES
DUE MAY 15, 2008
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GRANITE BROADCASTING CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- ---------
ss. 310(a)(1) ............................................. 609
(a)(2) ............................................. 609
(a)(3) ............................................. Not
Applicable
(a)(4) ............................................. Not
Applicable
(b) ............................................. 608
610
ss. 311(a) ............................................. 613
(b) ............................................. 613
ss. 312(a) ............................................. 701
702(a)
(b) ............................................. 702(b)
(c) ............................................. 702(c)
ss. 313(a) ............................................. 703(a)
(a)(4) ............................................. 703(a)
(b) ............................................. 703(a)
(c) ............................................. 703(a)
(d) ............................................. 703(b)
ss. 314(a) ............................................. 704
1017
(b) ............................................. Not
Applicable
(c)(1) ............................................. 102
(c)(2) ............................................. 102
(c)(3) ............................................. Not
Applicable
(d) ............................................. Not
Applicable
(e) ............................................. 102
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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Trust Indenture Indenture
Act Section Section
--------------- ---------
ss. 315(a) ............................................. 601
(b) ............................................. 602
(c) ............................................. 601
(d) ............................................. 601
(e) ............................................. 514
ss. 316(a) ............................................. 101
(a)(1)(A) ............................................. 502
512
(a)(1)(B) ............................................. 513
(a)(2) ............................................. Not
Applicable
(b) ............................................. 508
(c) ............................................. 104(c)
ss. 317(a)(1) ............................................. 503
(a)(2) ............................................. 504
(b) ............................................. 1003
ss. 318(a) ............................................. 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
Parties .................................................................. 1
Recitals of the Company .................................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions ........................................... 2
7.75% Exchange Debentures .................................... 2
9 3/8% Note Indenture ........................................ 3
9 3/8% Notes ................................................. 3
10 3/8% Note Indenture ....................................... 3
10 3/8% Notes ................................................ 3
12 3/4% Exchange Debenture Indenture ......................... 3
12 3/4% Exchange Debentures .................................. 3
12 3/4% Exchangeable Preferred Stock ......................... 3
Act .......................................................... 3
Additional Interest .......................................... 3
Additional Original Securities ............................... 4
Affiliate .................................................... 4
Agent Bank ................................................... 4
Asset Disposition ............................................ 4
Attributable Value ........................................... 4
Average Life ................................................. 5
Board of Directors ........................................... 5
Board Resolution ............................................. 5
Business Day ................................................. 5
Capital Lease Obligation ..................................... 6
Capital Stock ................................................ 6
Cedel ........................................................ 6
Change of Control ............................................ 6
Commission ................................................... 6
Common Stock ................................................. 6
Company ...................................................... 6
Company Request" or "Company Order ........................... 6
Consolidated Cash Flow ....................................... 7
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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Consolidated Income Tax Expense .............................. 7
Consolidated Interest Expense ................................ 7
Consolidated Net Income ...................................... 8
Consolidated Subsidiaries .................................... 8
Corporate Trust Office ....................................... 8
corporation .................................................. 8
Credit Agreement ............................................. 8
Debt ......................................................... 9
Defaulted Interest ........................................... 9
Depositary ................................................... 9
Designated Senior Debt ....................................... 9
Disqualified Stock ........................................... 9
DTC .......................................................... 10
Euroclear .................................................... 10
Event of Default ............................................. 10
Exchange Act ................................................. 10
Exchange Offer ............................................... 10
Exchange Securities .......................................... 10
Exchangeable Preferred Stock ................................. 10
Global Security .............................................. 10
Guarantee .................................................... 10
Holder ....................................................... 11
Incur ........................................................ 11
Indenture .................................................... 11
Initial Issue Date ........................................... 11
Interest Payment Date ........................................ 11
Investment ................................................... 11
Lien ......................................................... 12
Local Marketing Agreement .................................... 12
Maturity ..................................................... 12
Net Available Proceeds ....................................... 12
Offer to Purchase ............................................ 13
Officers' Certificate ........................................ 16
Opinion of Counsel ........................................... 16
Original Securities .......................................... 16
Outstanding .................................................. 16
Paying Agent ................................................. 17
Payment Blockage Period ...................................... 17
Permitted Holder ............................................. 18
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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Permitted Television Investment .............................. 18
Person ....................................................... 18
Predecessor Security ......................................... 18
Preferred Stock .............................................. 18
Pro Forma Consolidated Cash Flow ............................. 18
readily marketable cash equivalents .......................... 19
Redemption Date .............................................. 20
Redemption Price ............................................. 20
Regular Record Date .......................................... 20
Regulation S ................................................. 20
Regulation S Certificate ..................................... 20
Regulation S Global Security ................................. 20
Regulation S Legend .......................................... 20
Regulation S Securities ...................................... 20
Responsible Officer .......................................... 20
Rule 144 ..................................................... 20
Rule 144A .................................................... 20
Rule 144A Securities ......................................... 21
Sale and Leaseback Transaction ............................... 21
Second Step-Down Date ........................................ 21
Second Step-Up ............................................... 21
Securities ................................................... 21
Securities Act ............................................... 21
Securities Payment ........................................... 21
Security Register" and "Security Registrar ................... 21
Senior Debt .................................................. 21
Senior Nonmonetary Default ................................... 22
Senior Payment Default ....................................... 22
Special Record Date .......................................... 22
Stated Maturity .............................................. 22
Step-Down Date ............................................... 22
Step-Up ...................................................... 22
Subordinated Debt ............................................ 22
Subsidiary ................................................... 23
Successor Security ........................................... 23
Trust Indenture Act .......................................... 23
Trustee ...................................................... 24
U.S. Person .................................................. 24
Unrestricted Subsidiary ...................................... 25
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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Vice President ............................................... 26
Voting Stock ................................................. 26
Wholly Owned Subsidiary ...................................... 26
SECTION 102. Compliance Certificates and Opinions .................. 26
SECTION 103. Form of Documents Delivered
to Trustee ........................................... 27
SECTION 104. Acts of Holders; Record Dates ......................... 28
SECTION 105. Notices, Etc., to Trustee
and Company .......................................... 31
SECTION 106. Notice to Holders; Waiver ............................. 31
SECTION 107. The Application of Trust
Indenture Act ........................................ 32
SECTION 108. Effect of Headings and
Table of Contents .................................... 32
SECTION 109. Successors and Assigns ................................ 33
SECTION 110. Separability Clause ................................... 33
SECTION 111. Benefits of Indenture ................................. 33
SECTION 112. Governing Law ......................................... 33
SECTION 113. Legal Holidays ........................................ 33
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally; Initial Forms
of Rule 144A and Regulation S Securities ............. 34
SECTION 202. Form of Face of Security .............................. 35
SECTION 203. Form of Reverse of Security ........................... 40
SECTION 204. Form of Trustee's Certificate of
Authentication ....................................... 45
ARTICLE THREE
The Securities
SECTION 301. Title and Terms ....................................... 46
SECTION 302. Denominations ......................................... 47
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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SECTION 303. Execution, Authentication, Delivery
and Dating ........................................... 47
SECTION 304. Temporary Securities .................................. 50
SECTION 305. Global Securities ..................................... 50
SECTION 306. Registration, Registration of
Transfer and Exchange Generally;
Restrictions on Transfer and
Exchange; Securities Act Legends ..................... 52
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Securities .................................... 57
SECTION 308. Payment of Interest; Interest
Rights Preserved ..................................... 58
SECTION 309. Persons Deemed Owners ................................. 60
SECTION 310. Cancellation .......................................... 61
SECTION 311. Computation of Interest ............................... 61
SECTION 312. CUSIP Numbers ......................................... 62
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge
of Indenture ......................................... 62
SECTION 402. Application of Trust Money ............................ 63
ARTICLE FIVE
Remedies
SECTION 501. Events of Default ..................................... 64
SECTION 502. Acceleration of Maturity;
Rescission and Annulment ............................. 66
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee ..................... 68
SECTION 504. Trustee May File Proofs of Claim ...................... 69
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities ............................. 69
SECTION 506. Application of Money Collected ........................ 70
SECTION 507. Limitation on Suits ................................... 70
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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SECTION 508. Unconditional Right of Holders
to Receive Principal, Premium and Interest ........... 71
SECTION 509. Restoration of Rights and Remedies .................... 72
SECTION 510. Rights and Remedies Cumulative ........................ 72
SECTION 511. Delay or Omission Not Waiver .......................... 72
SECTION 512. Control by Holders .................................... 73
SECTION 513. Waiver of Past Defaults ............................... 73
SECTION 514. Undertaking for Costs ................................. 74
SECTION 515. Waiver of Stay or Extension Laws ...................... 74
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities ................... 74
SECTION 602. Notice of Defaults .................................... 75
SECTION 603. Certain Rights of Trustee ............................. 75
SECTION 604. Not Responsible for Recitals
or Issuance of Securities ............................ 77
SECTION 605. May Hold Securities ................................... 77
SECTION 606. Money Held in Trust ................................... 77
SECTION 607. Compensation and Reimbursement ........................ 78
SECTION 608. Disqualification; Conflicting Interests ............... 79
SECTION 609. Corporate Trustee Required; Eligibility ............... 79
SECTION 610. Resignation and Removal; Appointment
of Successor ......................................... 80
SECTION 611. Acceptance of Appointment by Successor ................ 81
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business ............................ 82
SECTION 613. Preferential Collection
of Claims Against Company ............................ 82
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders ....................... 83
SECTION 702. Preservation of Information;
Communications to Holders ............................ 83
SECTION 703. Reports by Trustee .................................... 84
SECTION 704. Reports by Company .................................... 84
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates .......................... 85
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets ...................................... 85
SECTION 802. Successor Substituted ................................. 87
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures without
Consent of Holders ................................... 87
SECTION 902. Supplemental Indentures
with Consent of Holders .............................. 88
SECTION 903. Execution of Supplemental Indentures .................. 89
SECTION 904. Effect of Supplemental Indentures ..................... 90
SECTION 905. Conformity with Trust Indenture Act ................... 90
SECTION 906. Reference in Securities
to Supplemental Indentures ........................... 90
SECTION 907. Subordination Impaired ................................ 90
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest ........... 91
SECTION 1002. Maintenance of Office or Agency ...................... 91
SECTION 1003. Money for Security Payments
to Be Held in Trust ................................. 92
SECTION 1004. Existence ............................................ 94
SECTION 1005. Maintenance of Properties ............................ 94
SECTION 1006. Payment of Taxes and Other Claims .................... 94
SECTION 1007. Maintenance of Insurance ............................. 95
SECTION 1008. Limitation on Company Debt ........................... 95
SECTION 1009. Limitation on Certain Debt ........................... 98
SECTION 1010. Limitation on Restricted Payments .................... 98
SECTION 1011. Limitations Concerning Distributions
by and Transfers to Subsidiaries .................... 101
SECTION 1012. Limitation on Transactions with Affiliates ........... 102
SECTION 1013. Limitation on Certain Asset Dispositions ............. 103
SECTION 1014. Limitation on Issuances and Sales
of Capital Stock of Wholly Owned
Subsidiaries ........................................ 106
SECTION 1015. Limitation on Liens Securing
Company Subordinated Debt ........................... 108
SECTION 1016. Limitation on Guarantees of
Company Subordinated Debt ........................... 108
SECTION 1017. Change of Control .................................... 108
SECTION 1018. Provision of Financial Information ................... 110
SECTION 1019. Statement by Officers as to Default .................. 111
SECTION 1020. Waiver of Certain Covenants .......................... 111
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption .................................. 112
SECTION 1102. Applicability of Article ............................. 112
SECTION 1103. Election to Redeem; Notice to Trustee ................ 113
SECTION 1104. Securities to Be Redeemed Pro Rata ................... 113
SECTION 1105. Notice of Redemption ................................. 113
SECTION 1106. Deposit of Redemption Price .......................... 114
SECTION 1107. Securities Payable on Redemption Date ................ 115
SECTION 1108. Securities Redeemed in Part .......................... 115
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior Debt ................ 116
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc .................................... 116
SECTION 1203. No Payment When Senior Debt in Default ............... 118
SECTION 1204. Payment Permitted If No Default ...................... 119
SECTION 1205. Subrogation to Rights of Holders
of Senior Debt ...................................... 120
SECTION 1206. Provisions Solely to Define
Relative Rights ..................................... 120
SECTION 1207. Trustee to Effectuate Subordination .................. 121
SECTION 1208. No Waiver of Subordination Provisions ................ 121
SECTION 1209. Notice to Trustee .................................... 122
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent .................... 123
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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SECTION 1211. Trustee Not Fiduciary for
Holders of Senior Debt .............................. 123
SECTION 1212. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights .................................... 124
SECTION 1213. Article Applicable to Paying Agents .................. 124
SECTION 1214. Defeasance of this Article Twelve .................... 124
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect
Defeasance or Covenant Defeasance ................... 125
SECTION 1302. Defeasance and Discharge ............................. 125
SECTION 1303. Covenant Defeasance .................................. 126
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance ................................. 126
SECTION 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions ...................... 129
TESTIMONIUM .............................................................. 131
SIGNATURES AND SEALS ..................................................... 131
ACKNOWLEDGMENTS132
ANNEX A -- Form of Regulation S Certificate .............................. A-1
ANNEX B -- Form of Restricted Securities Certificate ..................... ▇-▇
▇▇▇▇▇ ▇ -- ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Securities Certificate ................... C-1
ANNEX D -- Form of Certification to be Given by Holders
of Beneficial Interest in a Regulation S
Temporary Global Security ..................................... D-1
ANNEX E -- Form of Certification to be Given by the
Euroclear Operator or Cedel S.A. .............................. E-1
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of May 15, 1998 between Granite Broadcasting
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of up to
$200,000,000 aggregate principal amount of (A) its Senior Subordinated Notes due
May 15, 2008 (the "Securities") and (B) its Senior Subordinated Notes due May
15, 2008 (the "Exchange Securities" and collectively with the Securities, the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture. The Securities and the Exchange Securities shall rank pari
passu.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein) and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States as consistently applied by the Company at
the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"7.75% Exchange Debentures" means the 7.75% Junior Subordinated
Convertible Debentures due 2005 that the Company may issue at its election in
exchange for the Exchangeable Preferred Stock in accordance with the terms of
the Exchangeable Preferred Stock as such terms exist on the date of this
Indenture.
-2-
"9 3/8% Note Indenture" means the Indenture dated as of February 22,
1996 between the Company and The Bank of New York, as Trustee, as such Indenture
exists on the date of this Indenture.
"9 3/8% Notes" means the 9 3/8% Series A Senior Subordinated Notes
due December 1, 2005 of the Company issued pursuant to the 9 3/8% Note Indenture
and outstanding on the date of this Indenture.
"10 3/8% Note Indenture" means the Indenture dated as of May 19,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as
Trustee, as such Indenture exists on the date of this Indenture.
"10 3/8% Notes" means the 10 3/8% Senior Subordinated Notes due May
15, 2005 of the Company issued pursuant to the 10 3/8% Note Indenture and
outstanding on the date of this Indenture.
"12 3/4% Exchange Debenture Indenture" means the Indenture dated as
of January 31, 1997 between the Company and The Bank of New York, as Trustee, as
such Indenture exists on the date of this Indenture.
"12 3/4% Exchange Debentures" means the 12 3/4% Exchange Debentures
due April 1, 2009 that the Company may issue at its election in exchange for the
12 3/4% Exchangeable Preferred Stock in accordance with the terms of the 12 3/4%
Exchangeable Preferred Stock as such terms exist on the date of this Indenture
issued pursuant to the 12 3/4% Exchange Debenture Indenture and outstanding on
the date of this Indenture.
"12 3/4% Exchangeable Preferred Stock" means the Company's 12 3/4%
Cumulative Exchangeable Preferred Stock, par value $.01 per share, that is
outstanding on the date of this Indenture.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning set forth in the form of
Security contained in Section 202. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Additional
Interest.
-3-
"Additional Original Securities" means Securities issued from time
to time, after the Initial Issue Date.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Bank" shall mean initially Bankers Trust Company or such
successor bank or financial institution designated as such (or equivalent
thereof) under the Senior Loan Agreement (or any successor credit facility).
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Subsidiaries
(including a consolidation or merger of any such Subsidiaries with or into
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside of the ordinary
course of business. Asset Disposition shall not include a Sale and Leaseback
Transaction to the extent that the Attributable Value of such Sale and Leaseback
Transaction does not exceed $2,000,000 and the aggregate Attributable Value of
all such Sale and Leaseback Transactions entered into since the date of this
instrument and then outstanding does not exceed $5,000,000.
"Attributable Value" means, as to any particular lease under which
any Person is at the time liable other than a Capital Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the
initial term thereof as determined in accordance with generally accepted
accounting principles, discounted
-4-
from the last date of such initial term to the date of determination at a rate
per annum equal to the discount rate which would be applicable to a Capital
Lease Obligation with like term in accordance with generally accepted accounting
principles. The net amount of rent required to be paid under any such lease for
any such period shall be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated. Attributable
Value means, as to a Capital Lease Obligation under which any Person is at the
time liable and at any date as of which the amount thereof is to be determined,
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Average Life" means, as of the date of determination, with respect
to any Debt, the quotient obtained by dividing (i) the sum of the products of
the numbers of years from the date of determination to the dates of each
successive scheduled principal payments of such Debt multiplied by the amount of
such principal payments by (ii) the sum of all such principal payments.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The Borough of
Manhattan, The City of New York, New York are authorized or obligated by law or
executive order to close.
-5-
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Cedel" means Cedel, S.A. (or any successor securities clearing
agency).
"Change of Control" has the meaning specified in Section 1017.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its
-6-
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Cash Flow" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of (i) Consolidated
Interest Expense of such Person and its Consolidated Subsidiaries for such
period, plus (ii) Consolidated Income Tax Expense of such Person and its
Consolidated Subsidiaries for such period, plus (iii) the consolidated
depreciation and amortization expense included in the income statement of such
Person and its Consolidated Subsidiaries for such period, plus (iv) other
non-cash charges deducted from consolidated revenues of such Person and its
Consolidated Subsidiaries (other than amortization of film and program assets)
in determining Consolidated Net Income for such period, minus (v) non-cash items
added to consolidated revenues of such Person and its Consolidated Subsidiaries
in determining Consolidated Net Income for such period; provided, however,
Consolidated Cash Flow shall not include Consolidated Net Income and the items
specified in Clauses (i) through (iv) above to the extent attributable to a
Consolidated Subsidiary of such Person that is subject to restrictions
preventing the payment of dividends and the making of distributions (by loans,
advances, intercompany transfers or otherwise) to such Person, but shall include
such payments and distributions as could be made in accordance with such
restrictions.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its Consolidated
Subsidiaries for such period.
"Consolidated Interest Expense" for any Person means for any period
the consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person and its Consolidated
Subsidiaries for such period, including without limitation or duplication (or,
to the extent not so included, with the addition of), (i) the portion of any
rental obligation in respect of any Capital Lease Obligation allocable to
interest expense in accordance with generally accepted accounting principles,
(ii) the amortization of Debt discounts, (iii) any payments or fees with respect
to letters of credit, bankers acceptances or similar facilities, (iv) fees with
respect to interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements other
-7-
than fees or charges related to the acquisition or termination thereof which
are not allocable to interest expense in accordance with generally accepted
accounting principles, (v) Preferred Stock dividends declared and payable in
cash and (vi) accrued Disqualified Stock dividends, whether or not declared or
paid.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (i) the
net income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to the
date of such transaction, (ii) the net income (or loss) of any Person that is
not a Consolidated Subsidiary of such Person, (iii) gains or losses on Asset
Dispositions by such Person or its Consolidated Subsidiaries and (iv) all
extraordinary gains and extraordinary losses, and provided, further, that there
shall be added thereto, to the extent not otherwise included in Consolidated Net
Income, the amount of any dividends or other distributions actually paid to such
Person during such period by a Person that is not a Consolidated Subsidiary of
such Person.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as Consolidated Persons in such Person's financial
statements in accordance with generally accepted accounting principles,
provided, however, Consolidated Subsidiaries shall not include any Unrestricted
Subsidiary created in accordance with the definition of Unrestricted Subsidiary.
"Corporate Trust Office" means the principal office of the Trustee
in the Borough of Manhattan, The City of New York, New York, at which at any
particular time its corporate trust business shall be administered, which at the
date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"corporation" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Credit Agreement" means the Third Amended and Restated Credit
Agreement, dated as of September 4, 1996, by
-8-
and among the Company, the lenders listed therein, Bankers Trust Company, as
Agent, and The Bank of New York, First Union National Bank of North Carolina,
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. and Union Bank of California, N.A., as Co-
Agents, as it may be amended, restated, modified or replaced from time to time.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable, film contract rights or accrued
liabilities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Disqualified Stock of such Person at the time of determination, and (vii)
every obligation of the type referred to in Clauses (i) through (vi) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or is responsible or liable, directly or indirectly,
as obligor, Guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in the form of one or more Global Securities, The
Depository Trust Company for so long as it shall be a clearing agency registered
under the Exchange Act, or such successor as the Company shall designate from
time to time in an Officers' Certificate delivered to the Trustee.
"Designated Senior Debt" has the meaning set forth in Section 1203.
"Disqualified Stock" means any Capital Stock of the Company or any
Subsidiary of the Company which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or otherwise
-9-
(including upon the occurrence of an event), matures or is required to be
redeemed (pursuant to a sinking fund obligation or otherwise) or is redeemable
at the option of the holder thereof, in whole or in part (other than a
redemption which is conditioned upon a change of control of the Company), on or
prior to the final Stated Maturity of the Securities.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the
Security contained in Section 202.
"Exchange Securities" means the securities issued pursuant to the
Exchange Offer and their Successor Securities.
"Exchangeable Preferred Stock" means the Company's Cumulative
Convertible Exchangeable Preferred Stock, par value $.01 per share, that is
outstanding on the date of this Indenture.
"Global Security" means the security or securities that evidences
all or part of the Securities and bears the legend set forth in Section 202.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the
-10-
purpose of assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall
have meanings correlative to the fore going); provided, however, that the
Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring"
shall have meanings correlative to the fore going); provided, however, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Issue Date" means the date of this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by
-11-
any other Person, including any payment on a Guarantee of any obligation of such
other Person.
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Local Marketing Agreement" means any agreement pursuant to which
the Company or any of its Subsidiaries agrees to provide television management
services, television broadcasting or assets related to the provision of
television broadcasting in exchange for cash payments and/or the right to charge
others for the provision of advertising or other services or products.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition or issuance of
Capital Stock by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Debt or other obligations relating
to such properties or assets or received in any other noncash form) therefrom by
such Person, net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses Incurred and all federal, state, provincial, foreign
and local taxes required to be accrued as a liability as a consequence of such
Asset Disposition or issuance, (ii) all payments made by such Person or its
Subsidiaries on any Debt which is secured by such assets in accordance with the
terms of any Lien upon or with respect to such assets or which must by the terms
of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or issuance or
-12-
by applicable law be repaid out of the proceeds from such Asset Disposition or
issuance, (iii) all distributions and other payments made to minority interest
holders in Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition, and (iv) reserves established in accordance with generally
accepted accounting principles against any liabilities associated with such
assets and retained by such Person or any Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case as
determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a Board Resolution; provided, however, that any reduction in such
reserve following the consummation of such Asset Disposition will be treated for
all purposes of this Indenture and the Securities as a new Asset Disposition at
the time of such reduction with Net Available Proceeds equal to the amount of
such reduction.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Security Register on the date of the Offer, offering to
purchase up to the principal amount of Securities specified in such Offer at the
purchase price specified in such Offer. Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Offer Expiration Date") of
the Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for the purchase of
Securities within five Business Days after the Offer Expiration Date. The
Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is accept able to the Trustee) prior to the mailing of the Offer of
the Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase (which at a minimum will include (i) the most
recent annual and quarterly financial statements and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" contained in the
documents
-13-
required to be filed with the Trustee pursuant to Section 1018 of this Indenture
(which requirements may be satisfied by delivery of such documents together with
the Offer), (ii) a description of material developments in the Company's
business subsequent to the date of the latest of such financial statements
referred to in clause (i) (including a description of the events requiring the
Company to make the Offer to Purchase), (iii) if applicable, appropriate pro
forma financial information concerning the Offer to Purchase and the events
requiring the Company to make the Offer to Purchase, and (iv) any other
information required by applicable law to be included therein). The Offer shall
contain all instructions and materials necessary to enable such Holder to tender
Securities pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been
determined pursuant to the Section hereof requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture);
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
-14-
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(8) that on the Purchase Date the purchase price will become due and
payable upon each Security accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Offer Expiration Date (such Security being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to with draw all or any portion
of Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Offer Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of such tender;
(11) that (i) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (ii) if Securities in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Securi-
-15-
ties in denominations of $1,000 or integral multiples thereof shall be
purchased); and
(12) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for
the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
applicable securities laws and regulations and the Offer for such Offer to
Purchase.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee and containing the
statements provided for in Section 102. One of the officers signing an Officers'
Certificate given pursuant to Section 1019 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee, and
containing the statements provided for in Section 102.
"Original Securities" means all Securities including Additional
Original Securities, other than Exchange Securities.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been
-16-
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 307 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securi ties or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning specified in Section 1203.
-17-
"Permitted Holder" has the meaning set forth in Section 1017.
"Permitted Television Investment" means an Investment in any Person
which is a Restricted Payment within the meaning of either Clause (iii) or (v)
of Section 1010 (i) with which the Company has entered into a Local Marketing
Agreement or (ii) (a) for the purpose of facilitating the delivery by the
Company or any of its Subsidiaries of advanced television service, including
high definition television, or interactive television or (b) to otherwise permit
the Company or any of its Subsidiaries to exploit any other emerging
technologies relating to television broad casting. For purposes of calculating
the aggregate amount of outstanding Permitted Television Investments, any
Investment (a) in a Person which, subsequent to such Investment, becomes a
Wholly Owned Subsidiary of the Company, or (b) that otherwise, due to a change
in the status of such Person, would not, if then made, be deemed a Restricted
Payment, shall no longer be deemed outstanding as of the date such Person
becomes a Wholly Owned Subsidiary or otherwise changes its status, as the case
may be.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Pro Forma Consolidated Cash Flow" of any Person means for any
period the Consolidated Cash Flow for such
-18-
period; provided, that, in the event such Person or its Subsidiaries has made
Asset Dispositions or acquisitions of assets, properties or franchises not in
the ordinary course of business (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) or has permitted an
encumbrance or restriction pursuant to Section 1011 during or after such period,
such computation shall be made on a pro forma basis (whether the acquisition is
treated as a purchase or a pooling under generally accepted accounting
principles) as if the Asset Dispositions or acquisitions or restrictions or
encumbrances had taken place on the first day of such period. If, during or
after the period for which such calculation is made, the Person or any of its
Subsidiaries has acquired or disposed of a television or radio broadcasting or
cable television franchise that does not constitute an existing business
(whether existing as a separate entity, subsidiary, division, unit or other
wise), the pro forma effect of such acquisition or disposition shall be deemed
to be the Consolidated Cash Flow attributable to such franchise (or a reasonable
estimate thereof) for the period for which such calculation is made prior to
such acquisition or disposition, provided that such estimated Consolidated Cash
Flow shall be determined on the basis of comparable franchises, evidenced in a
Board Resolution and reported on by a nationally recognized accounting firm.
"readily marketable cash equivalents" means (i) marketable
securities issued or directly and unconditionally guaranteed by the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States; (ii) marketable direct obligations issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard & Poor's
Rating Group or ▇▇▇▇▇'▇ Investors Service, Inc.; (iii) commercial paper maturing
no more than 180 days from the date of acquisition thereof and, at the time of
acquisition, having a rating of at least A-1 from Standard & Poor's Ratings
Group or at least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc.; and (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any commercial bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia having unimpaired capital and surplus of not less than $100,000,000.
-19-
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 202 to be
placed upon Regulation S Securities.
"Regulation S Securities" means all Securities required pursuant to
Section 306(c) to bear a Regulation S Legend.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, 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.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
-20-
"Rule 144A Securities" means the Securities purchased by the Initial
Purchasers from the Company pursuant to the Purchase Agreement, other than the
Regulation S Securities.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 270 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Second Step-Down Date" has the meaning set forth in the form of
Security contained in Section 202.
"Second Step-Up" has the meaning set forth in the form of Security
contained in Section 202.
"Securities" means the securities designated as such in the first
paragraph of the RECITALS OF THE COMPANY and includes the Exchange Securities.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Payment" has the meaning set forth in Section 1202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Senior Debt" means (a) the principal of (premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, Debt
-21-
outstanding pursuant to the Agreement, (b) payment obligations of the Company
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements, in each case entered into to hedge Debt Incurred
under the Credit Agreement or any renewal, refunding, refinancing or extension
thereof, (c) all other Debt for money borrowed of the Company referred to in the
definition of Debt other than Clause (vi) and (d) all renewals, extensions,
modifications, refinancings, refundings and amendments of any Debt referred to
in Clause (a), (b) or (c) above, unless but only to the extent, in the case of
any particular Debt referred to in Clause (a), (b) or (c) above, (A) such Debt
is owed to a Subsidiary of the Company, (B) the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Debt is not superior in right of payment to the Securities,
(C) such Debt is Incurred in violation of the Indenture, or (D) such Debt is
subordinate in right of payment in respect to any other Debt of the Company.
"Senior Nonmonetary Default" has the meaning specified in Section
1203.
"Senior Payment Default" has the meaning specified in Section 1203.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of the
Security contained in Section 202.
"Step-Up" has the meaning set forth in the form of the Security
contained in Section 202.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment in
full of the Securities to at least the following extent: (i) no
-22-
payments of principal of (or premium, if any) or interest on or otherwise due in
respect of such Debt may be permitted for so long as any default in the payment
of principal (or premium, if any) or interest on the Securities exists; and (ii)
in the event that any other default that with the passing of time or the giving
of notice, or both, would constitute an event of default exists with respect to
the Securities, upon notice by 25% or more in principal amount of the Securities
to the Trustee, the Trustee shall have the right to give notice to the Company
and the holders of such Debt (or trustees or agents therefor) of a payment
blockage, and thereafter no payments of principal of (or premium, if any) or
interest on or otherwise due in respect of such Debt may be made for a period of
179 days from the date of such notice. Notwithstanding the foregoing, the
12-3/4% Exchange Debentures and the 7.75% Exchange Debentures shall constitute
Subordinated Debt unless and until the terms thereof are amended or modified
after the date of this Indenture.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof. Subsidiary shall not include an Unrestricted
Subsidiary created in accordance with the definition of Unrestricted Subsidiary.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purpose of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the
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Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor if the
Trust is revocable) is a U.S. Person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any non-discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. Person, (vii) any discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the United States
(other than such an account held for the benefit or account of a non-U.S.
Person), (viii) any partnership or corporation organized or incorporated under
the laws of a foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities not registered under the Securities Act
(unless it is organized or incorporated, and owned, by accredited investors
within the meaning of Rule 501(a) under the Securities Act who are not natural
persons, estates or trusts); provided, however, that the term "U.S. Person" does
not include (A) a branch or agency of a U.S. Person that is located and
operating outside the United States for valid business purposes as a locally
regulated branch or agency engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in accordance with the law,
customary practices and documentation of a foreign country and (C) the
international
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organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as
such by the Board of Directors as set forth below where (a) neither the Company
nor any of its other Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any Debt of such Subsidiary, and (b)
no default with respect to any Debt of such Subsidiary (including any right
which the holders thereof may have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Debt of the Company and its other Subsidiaries (other than another
Unrestricted Subsidiary) to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity, (2) any Subsidiary of the Company (other than a Subsidiary existing as
of the date of this Indenture or successor to any such Subsidiary) which at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Board of Directors, as provided below) and (3) any Subsidiary of an Unrestricted
Subsidiary where Clauses (a) and (b) are true with respect to such Subsidiary.
The Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
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, provided that either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) immediately after giving effect to such
designation, the ratio of the aggregate principal amount of Debt of the Company
and its Subsidiaries outstanding as of the most recent available balance sheet
to Pro Forma Consolidated Cash Flow for the preceding four full fiscal quarters,
determined on a pro forma basis as if such Subsidiary had been an Unrestricted
Subsidiary at the beginning of such four fiscal quarters, would be less than
6.5 to 1. The Board of Directors may designate any Unrestricted Subsidiary to be
a Subsidiary, provided that immediately after giving effect to such designation,
the ratio of the aggregate principal amount of Debt of the Company and its
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Subsidiaries outstanding as of the most recent available balance sheet to Pro
Forma Consolidated Cash Flow for the preceding four full fiscal quarters,
determined on a pro forma basis as if such Unrestricted Subsidiary had been a
Subsidiary at the beginning of such four fiscal quarters, would be less than 7.0
to 1. Any such designation by the Board of Directors shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act and under this Indenture. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate of an officer of the Company may be based, insofar
as it relates to legal matters, upon an opinion of counsel submitted therewith,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which his certificate is based
is erroneous. Any opinion of counsel may be based, insofar as it relates to
factual matters, upon
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a certificate of an officer or officers of the Company submitted therewith
stating the information on which counsel is relying, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate with
respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its
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own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such
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record date shall be deemed to have initially designated the 180th day after
such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if delivered in writing to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee Administration,
or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if
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any), and not earlier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. The Application of Trust Indenture Act.
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations here under. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of the Senior Debt (subject to Article Twelve hereof) and
the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Purchase Date or at the Stated Maturity, provided that no interest shall accrue
for the period from and after such Interest
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Payment Date, Redemption Date, Purchase Date or Stated Maturity, as the case may
be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S
Securities.
The Securities, the Exchange Securities and the Trustee's
certificates of authentication thereof shall be in substantially the forms set
forth in this Article, with such appropriate legends, insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
Upon their original issuance, Rule 144A Securities shall be issued
in the form of one or more Global Securities without interest coupons registered
in the name of DTC, as Depositary, or its nominee and deposited with the
Trustee, as custodian for DTC, in New York, New York, for credit by DTC to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct). Such Global Securities, together
with their Successor Securities which are Global Securities other than the
Regulation S Global Security are collectively herein called the "Restricted
Global Security".
Upon their original issuance, Regulation S Securities (herein called
the "Regulation S Temporary Global Security") shall be issued in the form of a
single temporary Global Security without coupons registered in the name of
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DTC, as Depositary, or its nominee and deposited with the Trustee at its
Corporate Trust Office, as custodian for DTC, for credit to ▇▇▇▇▇▇ Guaranty
Trust Company of New York, Brussels Office, as operator of Euroclear, and Cedel
to the respective accounts of beneficial owners of the Securities represented
thereby (or such other accounts as they may direct) in accordance with the rules
thereof. Such Global Securities, together with their Successor Securities which
are Global Securities are collectively herein called the "Regulation S Global
Security".
Beneficial interests in the Regulation S Temporary Global Security
may only be held through Euroclear and Cedel until such interests are exchanged
for corresponding interests in an unrestricted Global Security as provided in
the next sentence. A holder of a beneficial interest in the Regulation S
Temporary Global Security must provide written certification to Euroclear or
Cedel, as the case may be, that the beneficial owner of the interest in such
Global Security is not a U.S. Person (an "Owner Securities Certification"), and
Euroclear or Cedel, as the case may be, must provide to the Trustee a similar
certificate in the form set forth in Annex C (a "Depositary Securities
Certification"), prior to (i) the payment of interest with respect to such
holder's beneficial interest in the Regulation S Temporary Global Security and
(ii) any exchange of such beneficial interest for a beneficial interest in the
Regulation S Global Security.
SECTION 202. Form of Face of Security.
[If a Global Security, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security to be held by The Depository Trust Company,
then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER
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OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If the Original Securities, then insert -- THE SECURITIES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A)
ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.]
[If the Security is a Regulation S Security, then insert -- THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OF BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Security is a Regulation S Temporary Global Security, then
insert -- THIS SECURITY IS A REGULATION S TEMPORARY GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION S
TEMPORARY GLOBAL SECURITY MAY NOT BE OFFERED OR
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SOLD TO A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS
DEFINED IN THE INDENTURE) EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE.]
[If Original Securities, then insert -- 8 7/8% Series A Senior
Subordinated Securities due May 15, 2008]
No. __________ $________
Cusip No. ________
Granite Broadcasting Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of ____ Dollars (such amount the "principal amount"
of this Security) [if the Security is a Global Security, then insert --, or
such other principal amount (which, when taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $200,000,000 in
the aggregate at any one time) as may be set forth in the records of the trustee
hereinafter referred to in accordance with the Indenture,] on May 15, 2008, and
to pay interest thereon from May 11, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15 and November 15 in each year, commencing November 15, 1998, at the
rate of 8 7/8% per annum, until the principal hereof is paid or made available
for payment [If Original Securities, then insert -- provided, however, that if
(i) the Company has not filed a registration statement under the Securities Act
of 1933, as amended (the "Securities Act"), registering a security substantially
identical to this Security pursuant to an exchange offer (the "Exchange Offer")
(the "Exchange Registration Statement") by July 25, 1998, or (ii) the Exchange
Registration Statement relating to the Exchange Offer (or, in lieu thereof, a
registration statement registering this Security for resale (a "Resale
Registration Statement")) has not become or been declared effective by October
8, 1998 or (iii) the Exchange Offer has not been completed within 30 business
days after the date on which the Exchange Registration Statement has become or
been declared effective initially or (iv) either the Exchange Registration
Statement or, if applicable, the Resale Registration Statement is filed and
declared effective but
-37-
shall thereafter cease to be effective (except as specifically permitted
therein) without being succeeded immediately by an additional registration
statement filed and declared effective, in each case (i) through (iv) upon the
terms and conditions set forth in the Registration Rights Agreement dated as of
May 11, 1998, by and between the Company and the Holders from time to time of
the Securities (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the per annum interest rate borne by the
Securities shall increase (the "Step-Up") by 0.5% per annum until such time (the
"Step-Down Date") as no Registration Default is in effect (after which such
interest rate will be restored to its initial rate) and provided, further, that
if either the Exchange Offer has not been consummated or, if applicable, the
Resale Registration Statement has not become or been declared effective, in each
case by February 5, 1999, then the per annum rate of the Securities shall
increase (the "Second Step-Up") by an additional 0.5% per annum until such time
(the "Second StepDown Date") as the Company consummates the Exchange Offer or,
if applicable, the Resale Registration Statement becomes or has been declared
effective (after which such interest rate will be restored to its initial rate).
Interest accruing as a result of the Step-Up or the Second Step-Up is referred
to herein as "Additional Interest." Accrued Additional Interest shall be paid
semi-annually on the Interest Payment Dates; and the amount of accrued
Additional Interest shall be determined on the basis of the number of days
actually elapsed. Any accrued and unpaid interest (including Additional
Interest) on this Security upon the issuance of an Exchange Security in exchange
for this Security shall cease to be payable to the Holder hereof but such
accrued and unpaid interest (including Additional Interest) shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date.] The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
-38-
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-39-
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: _______________________
GRANITE BROADCASTING CORPORATION
[Seal] By
------------------------------
Attest:
------------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Series A Senior Subordinated Notes due May 15,
2008(the "Securities") issued under an Indenture, dated as of May 11,
1998(herein called the "Indenture"), between the Company and The Bank of New
York, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture). The Securities are limited in aggregate principal
amount to $200,000,000. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of the Senior Debt and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail in the event that on or before May 15, 2001
the Company receives net proceeds from any sale of its Capital Stock (other than
Disqualified Stock) in one or more offerings, in which case the Company may, at
its option and from time to time, use all or a portion of any such net proceeds
to redeem Securities in a principal amount of at least $5,000,000 and up to an
aggregate amount equal to 35% of the Original Securities, provided, however,
that Securities in an amount equal to at least 65% of the Original Securities
remain outstanding after each such redemption. Any such redemption
-40-
must occur on a Redemption Date within 75 days of any such sale and upon not
less than 30 nor more than 60 days' notice mailed to each Holder of Securities
to be redeemed at such Holder's address appearing in the Security Register, at a
Redemption Price of 108.875% of the principal amount of the Securities plus
accrued interest to but excluding the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due on
an Interest Payment Date that is on or prior to the Redemption Date).
In addition, the Securities are subject to redemption upon not less
than 30 nor more than 60 days' notice mailed to each Holder of Securities to be
redeemed at the address appearing in the Security Register, in amounts of $1,000
or an integral multiple of $1,000, at any time on or after May 15, 2003 and
prior to maturity, as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount),
if redeemed during the 12-month period beginning May 15 of each of the years
indicated below plus, in each case, accrued interest thereon to, but excluding,
the date of redemption:
Redemption
Year Price
---- ----------
2003 104.437%
2004 102.958%
2005 101.479%
2006 100%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
In the case of redemption by the Company, the Securities will be
redeemed pro rata if less than all the Securities are to be redeemed.
-41-
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if (i) a
Change of Control (as defined in the Indenture) occurs or (ii) certain Net
Available Proceeds are available to the Company as a result of any Asset
Disposition, the Company shall be required to make an Offer to Purchase for all
or a specified portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of like
tenor for the unredeemed or unpurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. The Exchange Securities and the Original Securities shall rank pari
passu.
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security, (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein or (iii) the subordination provisions
contained in the Indenture.
Unless the context otherwise requires, the Original Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
-42-
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and like tenor
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like tenor and aggregate principal
-43-
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles thereof.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months, provided, however, that Additional
Interest shall be computed on the basis of a 365- or 366-day year, as the case
may be, and the number of days actually elapsed.
-44-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 1013 or 1017 of the Indenture, check the box:
|_|
If you want to elect to have only a part of this Security purchased
by the Company pursuant to Sections 1013 or 1017 of the Indenture, state the
amount: $___________
Dated:________________ Your Signature:____________________
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:____________________________________________________________
Signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Security
Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By
---------------------------
Authorized Signatory
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $200,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 307, 906 or 1108 or in connection with an Offer to Purchase pursuant
to Section 1013 or 1017. After the Initial Issue Date and prior to the
expiration of the Exchange Offer, the Company may issue Additional Original
Securities from time to time, pursuant to a Board Resolution, subject to Section
303, included in an Officers' Certificate delivered to the Trustee, in
authorized denominations; provided the aggregate principal amount of the
Securities Outstanding after such issuance does not exceed $200,000,000. The
Company may issue Exchange Securities from time to time pursuant to an Exchange
Offer or otherwise, in each case pursuant to a Board Resolution, subject to
Section 303, included in an Officers' Certificate delivered to the Trustee, in
authorized denominations in exchange for a like principal amount of the Original
Securities. Upon any such exchange the Securities shall be canceled in
accordance with Section 310 and shall no longer be deemed Outstanding for any
purpose. In no event shall the aggregate principal amount of the Securities and
Exchange Securities Outstanding exceed $200,000,000.
The Securities shall be known and designated as the "8 7/8% Senior
Subordinated Securities due May 15, 2008" of the Company. The Stated Maturity of
the Securities shall be May 15, 2008. The Securities shall bear interest at the
rate of 8 7/8% per annum (subject, in the case of the Original Securities, to
increase at the rate of 0.50% or 1.00% per annum, as provided in such Original
Security), from May 11, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on May 15 and November 15, commencing November 15, 1998 until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the corporate
-46-
trust office of the Trustee in the Borough of Manhattan, The City of New York,
New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 1013 and 1017 of the
Indenture.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subordinated in right of payment of Senior
Debt as provided in Article Twelve and the Original Securities and the Exchange
Securities shall rank pari passu.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
Unless the context otherwise requires, the Original Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
-47-
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery
of this Indenture, and (i) prior to the expiration of the Exchange Offer, in the
case of Additional Original Securities or (ii) after the effectiveness of a
Registration Statement under the Securities Act with respect thereto, in the
case of Exchange Securities, the Company may deliver Additional Original
Securities or Exchange Securities, as the case may be, executed by the Company
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Additional Original Securities or Exchange
Securities, as applicable, and a like principal amount of Original Securities
for cancellation in accordance with Section 310 of this Indenture, in the case
of Exchange Securities, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 301, that such form
has been
-48-
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
(c) that such Securities have been duly and validly issued in
accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein;
(d) that all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles; and
(e) that the issuance of the Exchange Securities in exchange for the
Original Securities has been effected in compliance with the Securities
Act of 1933, as amended.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Exchange
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such
-49-
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like tenor and principal amount
of definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a
-50-
Global Security in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee thereof unless
(i) such Depositary (A) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor Depositary within 90 days, (ii) the
Company executes and delivers to the Trustee a Company Order stating that it
elects to cause the issuance of the Securities in certificated form and that all
Global Securities shall be exchanged in whole for Securities that are not Global
Securities (in which case such exchange shall be effected by the Trustee) or
(iii) there shall have occurred and be continuing an Event of Default or any
Event which after notice or lapse of time or both would be an Event of Default
with respect to the Securities.
(c) If any Global Security is to be exchanged for other Securities
or canceled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Three. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article Three or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to
Section 306(c) and as otherwise provided in this Article Three, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of the Company, and registered in such
names as may be directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the
-51-
Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its
authorized representative which is given or made pursuant to this Article Three
if such order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange Generally;
Restrictions on Transfer and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange Generally.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as
-52-
herein provided. Such Security Register shall distinguish between Original
Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, and provided that the other requirements of this Section 306 have been
satisfied, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 306, Securities may be exchanged for other Securities of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and (except for the differences between Original Securities and Exchange
Securities provided for herein) entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration
of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304,
-53-
906 or 1108 or in accordance with any Offer to Purchase pursuant to Section 1013
and 1017 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section
306(b).
(i) Restricted Global Security to Regulation S Temporary
Global Security or Regulation S Global Security. If the owner of a
beneficial interest in the Restricted Global Security wishes at any time
to transfer such interest to a Person who wishes to acquire the same in
the form of a beneficial interest in the Regulation S Temporary Global
Security (if before the expiration of the Restricted Period) or in the
Regulation S Global Security (if thereafter), such transfer may be
effected only in accordance with the provisions of this Clause (b)(i)
subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the Depositary or its
authorized representative directing that a beneficial interest in the
Regulation S Temporary Global Security or Regulation S Global Security (as
applicable) in a specified principal amount be credited to a specified
agent member's account and that a beneficial interest in the Restricted
Global Security in an equal principal amount be debited from another
specified agent member's account and (B) a Regulation S Certificate,
substantially in the form attached hereto as Annex A duly executed by the
owner of such beneficial interest in the Restricted Global Security or his
attorney duly authorized in writing, then the Trustee, as Security
-54-
Registrar but subject to Clause (b)(iv) below, shall reduce the principal
amount of the Restricted Global Security and increase the principal amount
of the Regulation S Temporary Global Security or Regulation S Global
Security (as applicable) by such specified principal amount as provided in
Section 306(b).
(ii) Regulation S Temporary Global Security to Restricted
Global Security. If the owner of a beneficial interest in the Regulation S
Temporary Global Security wishes at any time to transfer such interest to
a Person who wishes to acquire the same in the form of a beneficial
interest in the Restricted Global Security, such transfer may be effected
only in accordance with this Clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A) an
order given by the Depositary or its authorized representative directing
that a beneficial interest in the Restricted Global Security in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Temporary
Global Security in an equal principal amount be debited from another
specified Agent Member's account and (B) a Restricted Securities
Certificate, substantially in the form attached hereto as Annex B duly
executed by the owner of such beneficial interest in the Regulation S
Temporary Global Security or his attorney duly authorized in writing, then
the Trustee, as Security Registrar, shall reduce the principal amount of
the Regulation S Temporary Global Security and increase the principal
amount of the Restricted Global Security by such specified principal
amount as provided in Section 306(b).
(iii) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged for
a Security that is not a Global Security as provided in Section 306,
provided that, if such interest is a beneficial interest in the Restricted
Global Security, or if such interest is a beneficial interest in the
Regulation S Temporary Global Security, then such interest shall be
exchanged for a Restricted Security (subject in each case to Section
305(b)).
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(iv) Regulation S Temporary Global Security to be Held Through
Euroclear or Cedel during Restricted Period. The Company shall use its
best efforts to cause the Depositary to ensure that beneficial interests
in the Regulation S Temporary Global Security may be held only in or
through accounts maintained at the Depositary by Euroclear or Cedel (or by
Agent Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; provided
that this Clause (b)(iv) shall not prohibit any transfer or exchange of
such an interest in accordance with Clause (b)(ii) above.
(c) Securities Act Legends. Rule 144A Securities and their
respective Successor Securities shall bear a Restricted Securities Legend, and
Regulation S Securities and their Successor Securities shall bear a Regulation S
Legend, subject to the following:
(i) subject to the following Clauses of this Section 306(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this Section 306(c),
a new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion thereof,
upon transfer or otherwise, shall bear the Securities Act Legend borne by
such other Security, provided that, if such new Security is required
pursuant to Section 306(b)(iii) to be issued in the form of a Restricted
Security, it shall bear a Restricted Securities Legend and, if such new
Security is so required to be issued in the form of a Regulation S
Security, it shall bear a Regulation S Legend;
(iii) Exchange Securities shall not bear a Securities Act
Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer
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restrictions pursuant to the Securities Act, a new Security which does not
bear a Securities Act Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof which bears
such a legend if the Trustee has received an Unrestricted Securities
Certificate, substantially in the form attached hereto as Annex C duly
executed by the Holder of such legended Security or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new
Security in exchange for or in lieu of such other Security as provided in
this Article Three;
(v) a new Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if, in
the Company's judgment, placing such a legend upon such new Security is
not necessary to ensure compliance with the registration requirements of
the Securities Act, and the Trustee, at the direction of the Company,
shall authenticate and deliver such a new Security as provided in this
Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
306(c), a Successor Security of a Security that does not bear a particular
form of Securities Act Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such Successor Security
is a "restricted security" within the meaning of Rule 144, in which case
the Trustee, at the direction of the Company, shall authenticate and
deliver a new Security bearing a Restricted Securities Legend in exchange
for such Successor Security as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by either of
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon the
Company's written request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is regis-
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tered at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the pro posed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address
as it appears in
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the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 308) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or
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payments made on account of beneficial ownership interests of a Security in
global form, or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall prevent the Company
or the Trustee, or any agent of the Company or the Trustee, from giving effect
to any written certification, proxy or other authorization furnished by any
Depositary (or its nominee), as a Holder, with respect to such Security in
global form or impair, as between such Depositary and owners of beneficial
interests in such Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Security in global form.
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or pursuant to any Offer to Purchase pursuant to Section 1013
or 1017 shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of as directed by a Company Order, provided, however, that the Trustee may, but
shall not be required to, destroy such canceled Securities.
SECTION 311. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months, provided, however, that Additional
Interest on the Securities shall be computed on the basis of a 365- or 366-day
year, as the case may be, and the number of days actually elapsed.
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SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying
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Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) default in the payment of principal and interest pursuant to an
Offer to Purchase pursuant to Sections 1013 or 1017; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of clause (i) or (ii) of
Section 1017(d); or
(6) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
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Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(7) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of indebtedness by the Company or any Subsidiary of
the Company or under any mortgage(s), indenture(s) or instrument(s) under
which there may be issued or by which there may be secured or evidenced
any indebtedness of such type by the Company or any such Subsidiary with a
principal amount then outstanding, individually or in the aggregate, in
excess of $5 million, whether such indebtedness now exists or shall
hereafter be created, which default or defaults shall constitute a failure
to pay in excess of $5 million of the principal of such indebtedness when
due at the final maturity thereof (which, for purposes of the Senior Loan
Agreement or any successor credit facility shall not include any interim
amortization payment on any term indebtedness prior to the final maturity
of such term indebtedness), or shall have resulted in excess of $5 million
of indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable; or
(8) a final judgment or final judgments for the payment of money are
entered against the Company or any Subsidiary in an aggregate amount in
excess of $3 million by a court or courts of competent jurisdiction, which
judgments remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to
appeal all such judgments has expired; or
(9) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any of its
Subsidiaries in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any of its
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any of
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its Subsidiaries under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any of its Subsidiaries or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(10) the commencement by the Company or any of its Subsidiaries of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or any of its Subsidiaries in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any of its Subsidiaries or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any of its Subsidiaries in furtherance
of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(9) or (10)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by
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Holders), and upon any such declaration such principal and any accrued interest
shall become immediately due and payable. If an Event of Default specified in
Section 501(9) or (10) occurs, the principal of and any accrued interest on the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made
by the Company) and interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or
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agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys, securities or other property payable or deliverable upon the
exchange of the Securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official 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 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 607.
No provision of this Indenture 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
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disburse-
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ments and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the extent provided in Article Twelve, to the holders of
Senior Debt in accordance with Article Twelve; and
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings
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in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided
to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer and, if requested, provision of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 307, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability (as
determined in the sole discretion of the Trustee), and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities by
written notice to the Trustee waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable counsel fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Trustee or the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by this Indenture and the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such
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funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(5), no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
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(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction reasonably satisfactory to
the Trustee;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability of any kind by reason of
such investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in accordance with the
direction of Holders of Outstanding Securities as provided in Sections
502, 512 and 513 hereof;
(i) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer
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or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(j) for all purposes under this Indenture, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may other-
wise deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based on the income of
the Trustee) incurred without negligence or wilful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of enforcing this Indenture
against the Company (including, without limitation, this Section 607) and
of defending itself against any claim (whether asserted by any Holder or
the Company) or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The provisions of this Section
607 shall survive any termination of this Indenture and the resignation or
removal of the Trustee.
As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities. The Trustee's right to receive payment of any amounts due
under this Section 607 shall not be subordinate to any other liability or
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indebtedness of the Company (even though the Securities may be so subordinated),
except that such rights of the Trustee under this Section 607 shall be
subordinated in right and time of payment to the payment in full of all
obligations of the Company under the Senior Loan Agreement including, without
limitation, the payment of all principal, interest, fees and expenses
thereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(9) or Section 501(10), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York, New York. If
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611, at which
time the retiring Trustee shall be fully discharged from its obligations
hereunder. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of notice of
resignation or removal, the Trustee resigning or being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others
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similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
all sums owing to the Trustee under Section 607, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such
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successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of
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either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within sixty days after each May 15 following the date of this Indenture
deliver to Holders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Delivery of such reports, information and documents to the Trustee
shall be for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 705. Officers' Certificate with Respect to Change in Interest Rates.
Within five days after any Step-Up, a Second Step-Up or Step-Down
Date, the Company shall deliver an Officers' Certificate to the Trustee stating
the new interest rate and the date on which it became effective.
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain Sales of Assets.
The Company (i) shall not consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the Company
or any Subsidiary of the Company in a transaction in which such Subsidiary
remains a Subsidiary of the Company and (ii) shall not, directly or indirectly,
transfer, convey, sell, lease or otherwise dispose of all or substantially all
of its properties and assets as an entirety, unless, in any such transaction
specified in Clause (i) or (ii):
(1) immediately after giving effect to such transaction and treating
any Debt that becomes an obligation of the Company or a Subsidiary of the
Company, as a result of such transaction, as having been Incurred by the
Company or such Subsidiary at the time of the transaction, no Event of
Default, and no event that, with the passing of time or the giving of
notice, or both, would become an Event of Default, shall have occurred and
be continuing;
(2) in case the Company shall consolidate with or merge with or into
another Person or shall directly or indirectly transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its properties
or assets as an entirety, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by transfer,
conveyance, sale, lease or otherwise the assets of the Company
substantially as an entirety (for purposes of this Section 801, a
"Successor Company") shall be a corpora-
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tion, partnership, or trust and shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supple-
mental hereto, executed and delivered to the Trustee in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(3) immediately after giving effect to such transaction, the Company
or, if applicable, the Successor to the Company would have a ratio of
aggregate principal amount of Debt of the Company and its Subsidiaries
outstanding as of the most recent available balance sheet to Pro Forma
Consolidated Cash Flow for the preceding four fiscal quarters, determined
on a pro forma basis as if such transaction had taken place and the
proceeds therefrom had been applied at the beginning of such four fiscal
quarters, of less than 7.0 to 1;
(4) if, as a result of any such transaction, property and assets of
the Company or any Subsidiary of the Company would become subject to a
Lien which would not be permitted by Section 1015, the Company or, if
applicable, the Successor Company, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) Debt secured by such Lien; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance
satisfactory to the Trustee stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and, with respect to such Officers' Certificate, setting
forth the manner of determination of the Pro Forma Consolidated Cash Flow
in accordance with Clause (3) of Section 801, of the Company or, if
applicable, of the Successor Company as required pursuant to the
foregoing.
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SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
with or into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities pursuant to the requirements of Section
1015 or otherwise; or
(4) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to comply with any requirement of the
Commission in
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order to effect qualification of this Indenture under the Trust Indenture
Act in connection with the issuance of Exchange Securities or thereafter
to maintain the qualification of this Indenture under the Trust Indenture
Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided that such action pursuant to this Clause (5)
shall not adversely affect the interests of the Holders in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date) or, in the case of an Offer to Purchase which
has been made, on or after the applicable Purchase Date, or
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(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1020, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders, or
(5) following the making of an Offer with respect to an Offer to
Purchase pursuant to Sections 1013 or 1017, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner adverse to
such Holder.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Subordination Impaired.
No such supplemental indenture shall directly or indirectly modify
the provisions of Article Twelve in any manner which might terminate or impair
the rights of the Senior Debt pursuant to such subordination provisions.
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York, New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
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, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York, New York) where the Securities 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, New York for such purposes. The Company will
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.
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SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act. As provided in
Section 504, upon any bankruptcy or reorganization proceeding relative to the
Company, the Trustee shall serve as the Paying Agent for the Securities.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee in writing of its action or failure so to act. As
provided in Section 504, upon any bankruptcy or reorganization proceeding
relative to the Company, the Trustee shall serve as the Paying Agent for the
Securities.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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 (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, 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 publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined in the good faith judgment of the Board of
Directors evidenced by a Board Resolution, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose
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amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1008. Limitation on Company Debt.
The Company shall not, and shall not permit any Subsidiary of the
Company to, Incur any Debt unless, the ratio of (a) the aggregate principal
amount of Debt of the Company and its Subsidiaries outstanding as of the most
recent available balance sheet, after giving pro forma effect to the Incurrence
of such Debt and any other Debt Incurred since such balance sheet date and the
receipt and application of the proceeds thereof, to (b) Pro Forma Consolidated
Cash Flow for the preceding four full fiscal quarters, determined on a pro forma
basis as if such Debt and any other Debt Incurred since such balance sheet date
had been Incurred and the proceeds therefrom had been applied at the beginning
of such four fiscal quarters, would be less than 7.0 to 1.
Notwithstanding the foregoing paragraph, the Company or any
Subsidiary may Incur the following without regard to the foregoing limitation:
(i) Debt under the Credit Agreement not to exceed $150 million
aggregate principal amount at any one time outstanding, and any renewal,
extension, refinancing or refunding thereof in an amount which, together
with any amount remaining outstanding or available under the Credit
Agreement, does not exceed $150 million;
(ii) Debt evidenced by the 10 3/8% Notes, the 9 3/8% Notes and the
Securities;
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(iii) Debt owed by the Company to any Wholly Owned Subsidiary of the
Company or Debt owed by a Subsidiary of the Company to the Company or a
Wholly Owned Subsidiary of the Company; provided, however, that for
purposes of this Section 1008, upon either (x) the transfer or other
disposition by such Wholly Owned Subsidiary or the Company of any Debt so
permitted to a Person other than the Company or another Wholly Owned
Subsidiary of the Company or (y) the issuance (other than directors'
qualifying shares), sale, transfer or other disposition of shares of
Capital Stock (including by consolidation or merger) of such Wholly Owned
Subsidiary to a Person other than the Company or another such Wholly Owned
Subsidiary, the provisions of this Clause (iii) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been
Incurred at the time of such transfer or other disposition;
(iv) Debt Incurred or Incurrable in respect of letters of credit,
bankers' acceptances or similar facilities not to exceed $2 million at any
one time outstanding;
(v) Capital Lease Obligations whose Attributable Value will not
exceed $5 million at any one time outstanding;
(vi) Debt arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Debt is extinguished within two Business Days of its Incurrence;
(vii) Debt Incurred by a Person prior to the time (A) such Person
became a Subsidiary of the Company, (B) such Person merges into or
consolidates with a Subsidiary of the Company, (C) another Subsidiary of
the Company merges into or consolidates with such Person (in each case in
a transaction in which such Person becomes a Subsidiary of the Company) or
(D) such Person sells any of its property consisting of operating assets
to a Subsidiary of the Company subject to such Debt (whether such Debt is
recourse or non-recourse to such Subsidiary), provided that in any such
case such
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Debt was not Incurred in anticipation of such transaction;
(viii) Debt evidenced (A) by the 7.75% Exchange Debentures if the
7.75% Exchange Debentures are issued in exchange for Convertible Preferred
Stock or (B) by the 12 3/4% Exchangeable Debentures if the 12 3/4%
Exchangeable Debentures are issued in exchange for 12 3/4% Cumulative
Exchangeable Preferred Stock;
(ix) renewals, refundings, refinancings or extensions
(collectively, "refinancings") of the Credit Agreement, the 10 3/8% Notes,
the 9 3/8% Notes, the 7.75% Exchange Debentures, the 12 3/4% Exchangeable
Debentures, the Securities or any other outstanding Debt that is Incurred
in compliance with this Indenture (other than Debt referred to in Clauses
(i) through (vi) above) in an aggregate principal amount not to exceed the
principal amount of the Debt so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant to the
terms of the Debt refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated repurchase, plus the
amount of expenses of the Company Incurred in connection with such
refinancing, provided that (A) unless such refinancing Debt is Senior
Debt, such refinancing Debt does not have an Average Life less than the
Average Life of the Debt being refinanced and (B) if such Debt is
subordinated in right of payment to the Securities such refinancing Debt
is subordinated in right of payment to the Securities at least to the
extent that the Debt to be refinanced is subordinated to the Securities;
and
(x) Debt not otherwise permitted to be Incurred pursuant to Clauses
(i) through (ix) above, which, together with any other outstanding Debt
Incurred pursuant to this Clause (x), has an aggregate principal amount
not in excess of $15 million at any one time outstanding.
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SECTION 1009. Limitation on Certain Debt.
The Company shall not Incur or permit to exist any Debt that is by
its terms both (i) subordinate in right of payment to any Senior Debt and (ii)
senior in right of payment to the Securities, in each case other than by reason
of its maturity. The Company shall not Incur or permit to exist any Debt that is
by its terms subordinate in right of payment to the Securities unless such Debt
constitutes Subordinated Debt.
SECTION 1010. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly, declare or pay
any dividend or make any distribution in respect of any class of its Capital
Stock or to the holders thereof (including pursuant to a merger or consolidation
of the Company, but excluding (a) any dividends or distributions payable solely
in shares of its Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to acquire its Capital Stock (other than Disqualified
Stock) and (b) dividends in accordance with the terms of the Convertible
Preferred Stock or 12 3/4% Cumulative Exchangeable Preferred Stock, as such
terms exist on the date of this Indenture), (ii) shall not, and shall not permit
any Subsidiary of the Company, directly or indirectly, to purchase, redeem or
otherwise acquire or retire for value (a) any Capital Stock of the Company or
(b) any options, warrants or rights to purchase or acquire shares of Capital
Stock of the Company (in the case of either (a) or (b) other than in exchange
for the Company's Capital Stock (other than Disqualified Stock) or options,
warrants or other rights to purchase the Company's Capital Stock (other than
Disqualified Stock)), (iii) shall not make, or permit any Subsidiary of the
Company to make, any loan, advance, capital contribution to or Investment in, or
payment on a Guarantee of any obligation of, any Affiliate, other than the
Company or a Wholly Owned Subsidiary, (iv) shall not, and shall not permit any
Subsidiary of the Company to, redeem, defease, repurchase, retire or otherwise
acquire or retire for value prior to any scheduled maturity, repayment or
sinking fund payment, Debt of the Company which is subordinated in right of
payment to the Securities (other than in exchange for the Company's Capital
Stock (other than Disqualified Stock) or options, warrants or other rights to
purchase the Company's Capital Stock (other than Disquali-
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fied Stock)), and (v) may not make any Investment in any Subsidiary that is
subject to an encumbrance or restriction prohibited under Section 1011 or any
Investments in any Unrestricted Subsidiary (the transactions described in
Clauses (i) through (v) being referred to herein as "Restricted Payments"), if
at the time thereof:
(1) an Event of Default, or an event that with the lapse of time or
the giving of notice, or both, would constitute an Event of Default, shall
have occurred and is continuing, or
(2) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments from March 31, 1995 exceeds the sum of:
(a) the remainder of (x) 100% of cumulative Consolidated Cash Flow
(or, in the case Consolidated Cash Flow shall be negative,
less 100% of such deficit) from March 31, 1995 through the
last day of the last full fiscal quarter immediately preceding
such Restricted Payment minus (y) the product of 1.4 times the
cumulative Consolidated Interest Expense from March 31, 1995
through the last day of the last full fiscal quarter
immediately preceding such Restricted Payment; plus
(b) 100% of the aggregate net proceeds received by the Company
since March 31, 1995, including the fair value of property
other than cash (as determined in good faith by the Board of
Directors and evidenced by a Board Resolution filed with the
Trustee), from the issuance (other than to a Subsidiary of the
Company) of Capital Stock of the Company (other than
Disqualified Stock) and options, warrants, or other rights to
purchase or acquire Capital Stock of the Company (other than
Disqualified Stock and other than by a Subsidiary) and the
principal amount of Debt of the Company that has been
converted into Capital Stock of the Company (other than
Disqualified Stock and other than by a Subsidiary) since March
31, 1995; plus
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(c) an amount equal to the net reduction in Investments made by
the Company and its Subsidiaries subsequent to the date of
original issue of the Securities pursuant to Clauses (iii) and
(v) above in any Affiliate or Unrestricted Subsidiary or a
Subsidiary of the Company that is subject to an encumbrance or
restriction prohibited under Section 1011 upon the
disposition, liquidation, or repayment (including by way of
dividends) thereof, from redesignations of Unrestricted
Subsidiaries as Subsidiaries or from the removal of such
encumbrance or restriction, but only to the extent such
amounts are not included in Consolidated Net Income and not to
exceed in the case of any Person the amount of Investments
previously made by the Company and its Subsidiaries in such
Person; plus
(d) $15 million.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or would
result therefrom, the Company and any Subsidiary of the Company may (i) pay any
dividend within 60 days after declaration thereof if at the declaration date
such payment would have complied with the foregoing provision; (ii) make any
payment in redemption of Capital Stock of the Company or options to purchase
such Capital Stock granted to officers or employees of the Company pursuant to
the Company's Stock Option Plan (or any successor plan) in connection with the
severance or termination of officers or employees (other than W. ▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇) not to exceed $1 million in the aggregate at any one time
outstanding; (iii) make Investments not to exceed $10 million in the aggregate
at any one time outstanding, in (A) any Subsidiary which is subject to any
encumbrance or restriction prohibited under Section 1011 or (B) any Unrestricted
Subsidiary; (iv) exchange its Convertible Preferred Stock or 12 3/4% Cumulative
Exchangeable Preferred Stock in accordance with their respective terms (as such
terms exist on the date of this Indenture) for the 7.75% Exchange Debentures or
the 12 3/4% Exchangeable Debentures, as the case may be, and make payments of
principal (premium, if any) and interest thereon in accordance with the 7.75%
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Exchange Debenture Indenture or the 12 3/4% Exchangeable Debenture Indenture, as
the case may be; (v) refinance any Debt otherwise permitted to be refinanced by
Clause (ix) of the second paragraph of Section 1008 or solely in exchange for or
out of the proceeds of the substantially concurrent sale (other than from or to
a Subsidiary of the Company) of shares of Capital Stock of the Company (other
than Disqualified Stock); (vi) purchase, redeem, acquire or retire any shares of
Capital Stock of the Company solely in exchange for or out of the proceeds of
the substantially concurrent sale (other than from or to a Subsidiary of the
Company) of shares of Capital Stock (other than Disqualified Stock) of the
Company; (vii) purchase or redeem any Debt from Net Available Proceeds to the
extent permitted or required under Section 1013; and (viii) make Permitted
Television Investments in an aggregate amount at any one time outstanding not to
exceed $25 million. Any payment or Investment made pursuant to Clause (i), (ii)
or (iii) of this paragraph shall be a Restricted Payment for purposes of
calculating aggregate Restricted Payments under the first paragraph of this
Section 1010.
SECTION 1011. Limitations Concerning Distributions by and Transfers to
Subsidiaries.
The Company shall not, and shall not permit any Subsidiary of the
Company to, suffer to exist any consensual encumbrance or restriction on the
ability of any Subsidiary of the Company: (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock or
pay any Debt or other obligation owed to the Company or any other Subsidiary of
the Company; (ii) to make loans or advances to the Company or any Subsidiary of
the Company; or (iii) to transfer any of its property or assets to the Company.
Notwithstanding the foregoing limitation, the Company may permit a Subsidiary to
suffer to exist any such encumbrance or restriction (A) included in any
instrument governing Debt Incurred by such Subsidiary pursuant to the first
paragraph of Section 1008 of the Indenture for the purpose of financing all or
part of the purchase price or cost of construction or improvements of property;
provided, however, that the principal amount of the Debt so Incurred does not
exceed the purchase price or cost of construction or improvements of such
property; (B) included in the Credit Agreement; (C) imposed by virtue of
applicable corporate law or regulation and relating solely
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to the payment of dividends or distributions to shareholders; (D) pursuant to an
agreement relating to any Debt Incurred by a Person prior to the date on which
such Person became a Subsidiary of the Company and outstanding on such date and
not Incurred in anticipation of becoming a Subsidiary; (E) with respect to
restrictions of the nature described in Clause (iii) above, included in a
contract entered into in the ordinary course of business and consistent with
past practices that contains provisions restricting the assignment of such
contract; (F) pursuant to an agreement effecting a renewal, refunding or
extension of Debt Incurred pursuant to an agreement referred to in Clause (A),
(B) or (D) above; provided, however, that the provisions contained in such
renewal, refunding or extension agreement relating to such encumbrance or
restriction are no more restrictive in any material respect than the provisions
contained in the agreement the subject thereof, as determined in good faith by
the Board of Directors and evidenced by a Board Resolution, or (G) included in
any instrument governing Capital Lease Obligations whose Attributable Value will
not exceed $5 million in the aggregate at any one time outstanding or included
in any instrument governing a Sale and Leaseback Transaction whose Attributable
Value does not exceed $2 million and the Attributable Value of all such Sale and
Leaseback Transactions entered into since the date of this Indenture and
otherwise prohibited by this Indenture does not exceed $5 million in the
aggregate, provided that in each case, after giving effect to the Incurrence of
such Capital Lease Obligation or Sale and Leaseback and the receipt and
application of the proceeds thereof, the ratio of the aggregate principal amount
of Debt of the Company and its Subsidiaries outstanding as of the most recent
available balance sheet to Pro Forma Consolidated Cash Flow for the preceding
four full fiscal quarters, determined on a pro forma basis as if such Capital
Lease Obligation had been Incurred, or such Sale and Leaseback Transaction had
taken place, and the proceeds therefrom had been applied at the beginning of
such four fiscal quarters, would be less than 7.0 to 1.
SECTION 1012. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Subsidiary of the
Company to, directly or indirectly, enter into any transaction after the date of
this Indenture
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(including, without limitation, the purchase, sale, lease or exchange of
property, the rendering of any service or the making of any loan or advance, but
excluding transactions between the Company and Wholly Owned Subsidiaries), with
any Affiliate, unless a majority of the disinterested members of the Board of
Directors determines in its reasonable good faith judgment and which
determination shall be evidenced by a Board Resolution filed with the Trustee
that:
(1) the terms of such transaction are in the best interests of the
Company or such Subsidiary; and
(2) such transaction is on terms no less favorable to the Company or
such Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate.
Notwithstanding the foregoing, the Company shall not be required to
file any Board Resolution referred to in the preceding paragraph with respect to
matters solely concerning the compensation of employees.
SECTION 1013. Limitation on Certain Asset Dispositions.
(a) The Company shall not, and shall not permit any Subsidiary to,
make an Asset Disposition in one or more transactions in any fiscal year unless
(i) the Company (or the Subsidiary, as the case may be) receives consideration
at the time of such sale or other disposition at least equal to the fair market
value for the assets sold or otherwise disposed of (which shall be as determined
in good faith by the Board of Directors, evidenced by a Board Resolution), (ii)
at least 85% of the consideration for such disposition shall consist of cash or
readily marketable cash equivalents or the assumption of Debt of the Company or
a Subsidiary or other obligations relating to such assets and a release from all
liability on the Debt or other obligations assumed, and (iii) all Net Available
Proceeds of such disposition and from the sale of any marketable cash
equivalents received thereby, less any amounts invested as described in the
second sentence of the following paragraph, are applied (A) first, within 120
days of such disposition, to the reduction of any obligations then outstanding
under the Credit Agreement (or any successor credit facility) to the extent the
terms of such Credit Agreement (or successor credit facility) require such
application or prohibit prepayment of the Securities; (B) second, within 120
days
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of such disposition, to the repayment of any other Senior Debt to the extent the
terms of such Senior Debt require such application or prohibit prepayment of the
Securities; (C) third, to the extent of any remaining Net Available Proceeds and
so long as any 10 3/8% Notes are outstanding, to make an offer to purchase the
10 3/8% Notes in accordance with the requirements of the 10 3/8% Note Indenture;
(D) fourth, to the extent of any remaining Net Available Proceeds and so long as
any 9 3/8% Notes are outstanding, to make an offer to purchase the 9 3/8% Notes
in accordance with the requirements of the 9 3/8% Note Indenture; (E) fifth, to
the extent more than $5,000,000 of Net Available Proceeds are not required to be
applied to the repayments as specified in Clauses (A), (B), (C) and (D), to
purchases of Outstanding Securities pursuant to an Offer to Purchase commenced
within 120 days of such disposition at a purchase price equal to 100% of their
principal amount plus accrued interest to the date of purchase; (F) sixth, to
the extent of any remaining Net Available Proceeds following the completion of
the Offer to Purchase Securities required by Clause (E), to the repayment of
other Debt of the Company or Debt of a Subsidiary of the Company, to the extent
permitted under the terms thereof; and (G) seventh, to the extent of any
remaining Net Available Proceeds, to any other use as determined by the Company
which is not otherwise prohibited by this Indenture.
Notwithstanding Clause (ii) above, all or a portion of the
consideration for any such disposition may consist of all or substantially all
of the assets or a majority of the Voting Stock of an existing television or
radio broadcasting or cable television business or franchise (whether existing
as a separate entity, subsidiary, division, unit or otherwise) if after giving
effect to any such disposition and related acquisition of assets, (x) the ratio
of the aggregate principal amount of Debt of the Company and its Subsidiaries
outstanding as of the most recent available balance sheet to Pro Forma
Consolidated Cash Flow for the preceding four fiscal quarters, determined on a
pro forma basis as if such transaction had taken place and the proceeds
therefrom had been applied at the beginning of such four fiscal quarters, would
be less than 7.0 to 1; (y) no Event of Default or event that, with the passing
of time or the giving of notice, or both, will constitute an Event of Default
shall have occurred or be continuing; and (z) the Net Available Proceeds, if
any, are invested in accordance with the next sentence of this paragraph.
Notwithstanding
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Clause (iii) above, the Company shall not be required to repurchase or redeem
any Debt to the extent that the Net Available Proceeds from any Asset
Disposition are invested within 120 days of such disposition in television or
radio broadcasting or cable television assets or franchises or the Company shall
have entered into a definitive agreement to acquire such assets subject only to
customary conditions, including, without limitation, the approval of the Federal
Communications Commission (but excluding any conditions with respect to the
financing of such acquisition or due diligence) and such acquisition shall have
been consummated within 240 days of such disposition. Notwithstanding the
foregoing two sentences, the Company shall not be entitled to take as
consideration for an Asset Disposition, or invest Net Available Proceeds in lieu
of repurchasing or redeeming Debt in, any television or radio broadcasting or
cable television assets, business or franchise unless the majority of the assets
(including intangibles) so acquired or the majority of the assets (including
intangibles) of the business or franchise so acquired are related to television
or radio broadcasting.
(b) The Company will mail the Offer for an Offer to Purchase
required pursuant to Section 1013(a) not more than 120 days after consummation
of the disposition referred to in Section 1013(a), unless the Company shall have
entered into a definitive agreement to acquire such assets as described above,
in which case the Company will mail the Offer for the Offer to Purchase not
later than the earlier of (A) 240 days after such disposition and (B) 30 days
after the termination of any such definitive acquisition agreement. The
aggregate principal amount of the Securities to be offered to be purchased
pursuant to the Offer to Purchase shall equal the Net Available Proceeds
available therefor pursuant to Clause (iii)(D) of Section 1013(a) (rounded down
to the next lowest integral multiple of $1,000). Each Holder shall be entitled
to tender all or any portion of the Securities owned by such Holder pursuant to
the Offer to Purchase, subject to the requirement that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its
obligations under this Section 1013 for the principal amount of any Securities
acquired or redeemed by the Company otherwise than pursuant to the Offer to
Purchase pursuant to this Section 1013.
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(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1013, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the
allocation of the Net Available Proceeds from the Asset Disposition pursuant to
which such Offer is being made, including, if amounts are invested in assets
related to the business, the actual assets acquired and (iii) the compliance of
such allocation with the provisions of Section 1013(a).
The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. On or prior to the
Purchase Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) money sufficient
to pay the purchase price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent (or the
Company, if so acting) shall promptly mail or deliver to Holders of Securities
so accepted payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Security
of like tenor equal in principal amount to any unpurchased portion of the
Security surrendered. Any Security not accepted for payment shall be promptly
mailed or delivered by the Company to the Holder thereof.
(d) Notwithstanding the foregoing, this Section 1013 shall not
apply to any Asset Disposition which constitutes a transfer, conveyance, sale,
lease or other disposition of all or substantially all of the Company's
properties or assets within the meaning of Section 801 hereof.
SECTION 1014. Limitation on Issuances and Sales of Capital Stock of Wholly Owned
Subsidiaries.
The Company (i) shall not and shall not permit any Wholly Owned
Subsidiary to transfer, convey, sell or other-
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wise dispose of Capital Stock of such or any other Wholly Owned Subsidiary to
any Person (other than the Company or a Wholly Owned Subsidiary) unless such
transfer, conveyance, sale or other disposition is of all the Capital Stock of
such Wholly Owned Subsidiary and the Net Available Proceeds from such transfer,
conveyance, sale or other disposition are applied in accordance with Section
1013 (including the provisions thereof relating to the application of the Net
Available Proceeds therefrom) and (ii) may not permit any Wholly Owned
Subsidiary to issue shares of Capital Stock (other than directors' qualifying
shares), or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, its Capital Stock to any Person other than
to the Company or a Wholly Owned Subsidiary unless in the case of either Clause
(i) or (ii) above (A) after giving effect to any such sale, disposition or
issuance, the ratio of the aggregate principal amount of Debt of the Company and
its Subsidiaries outstanding as of the most recent available balance sheet to
Pro Forma Consolidated Cash Flow for the preceding four fiscal quarters,
determined on a pro forma basis as if such sale, disposition or issuance had
taken place and the Net Available Proceeds therefrom had been applied at the
beginning of such four fiscal quarters, would be less than 7.0 to 1; (B)
immediately after giving effect to such sale, disposition or issuance (including
any acquisition of assets with Net Available Proceeds) no Event of Default or
event that with the passing of time or the giving of notice, or both, will
constitute an Event of Default shall have occurred or be continuing; (C) the
assets acquired pursuant to such sale, disposition or issuance, are either (x)
at least 85% cash or readily marketable cash equivalents and the Net Available
Proceeds from such sale, disposition or issuance are applied in accordance with
Section 1013 (including the provisions thereof relating to the application of
Net Available Proceeds therefrom) or (y) all or substantially all of the assets
or a majority of the Voting Stock of an existing television or radio
broadcasting or cable television business or franchise (whether existing as a
separate entity, subsidiary, division, unit or otherwise) (subject to the
restrictions described in the last sentence of the second paragraph of Section
1013(a)); (D) after giving effect to any such sale, disposition or issuance,
such Wholly Owned Subsidiary shall be a Subsidiary of the Company and (E) the
Company (or the Subsidiary, as the case may be) receives consideration at the
time of the issuance, sale or disposition of the Capital Stock at least equal to
the fair value
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for the Capital Stock issued or sold (which shall be determined in good faith
by the Board of Directors, evidenced by a Board Resolution).
SECTION 1015. Limitation on Liens Securing Company Subordinated Debt.
The Company may not, and may not permit any Subsidiary of the
Company to, Incur or suffer to exist any Lien on or with respect to any property
or assets now owned or hereafter acquired to secure any Debt of the Company that
is expressly by its terms subordinate or junior in right of payment (other than
by reason of maturity) to any other Debt of the Company without making, or
causing such Subsidiary to make, effective provision for securing the Securities
(x) equally and ratably with such Debt as to such property or assets for so long
as such Debt will be so secured or (y) in the event such Debt is subordinate in
right of payment (other than by reason of maturity) to the Securities, prior to
such Debt as to such property or assets for so long as such Debt will be so
secured.
SECTION 1016. Limitation on Guarantees of Company Subordinated Debt.
The Company may not permit any Subsidiary, directly or indirectly,
to assume, Guarantee or in any other manner become liable with respect to any
Debt of the Company that is expressly by its terms subordinate or junior in
right of payment (other than by reason of maturity) to any other Debt of the
Company.
SECTION 1017. Change of Control.
(a) Upon the occurrence of a Change of Control (as defined below),
each Holder of a Security shall have the right to have such Security repurchased
by the Company on the terms and conditions precedent set forth in this Section
1017 and this Indenture. The Company shall, within 30 days following the date of
the consummation of a transaction resulting in a Change of Control, mail an
Offer with respect to an Offer to Purchase all Outstanding Securities at a
purchase price equal to 101% of their aggregate principal amount plus accrued
interest to the Purchase Date; provided,
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however, that installments of interest whose Stated Maturity is on or prior to
the Purchase Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
308. Each Holder shall be entitled to tender all or any portion of the
Securities owned by such Holder pursuant to the Offer to Purchase, subject to
the requirement that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount.
(b) The Company and Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security or Securities equal in principal amount to any unpurchased portion of
the Security surrendered as requested by the Holder. Any Security not accepted
for payment shall be promptly mailed or delivered by the Company to the Holder
thereof.
(c) A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Indenture, either (A) any Person or any
Persons (other than one or more Permitted Holders) acting together which would
constitute a "group" (a "Group") for purposes of Section 13(d) of the Exchange
Act, or any successor provision thereto, together with any Affiliates, shall
beneficially own (as defined in Rule 13d-3 of the Exchange Act or any successor
provision thereto) at least 50% of the aggregate voting power of all classes of
Voting Stock of the Company; or (B) any Person or Group (other than Permitted
Holders), together with any Affiliates, shall succeed in having a sufficient
number of its nominees elected to the Board of Directors of the Company such
that such nominees, when added
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to any existing directors remaining on the Board of Directors of the Company
after such election who are Affiliates, shall constitute a majority of the Board
of Directors of the Company. "Permitted Holder" means (i) W. ▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇, (ii) the members of the immediate family of either of the
persons referred to in Clause (i) above, (iii) any trust created for the benefit
of the persons described in Clause (i) or (ii) above or any of their estates or
(iv) any corporation that is controlled by any person described in Clause (i),
(ii) or (iii) above.
(d) Prior to the time required for the mailing of an Offer with
respect to an Offer to Purchase pursuant to paragraph (a), the Company will (i)
to the extent then required to be repaid, pay in full all outstanding Senior
Debt so as to permit the making of the Offer to Purchase or (ii) obtain the
requisite consents then required under the agreements governing any Senior Debt.
The failure by the Company to satisfy either clause (i) or clause (ii) above
shall not relieve the Company of its obligation to make an Offer to Purchase
required by paragraph (a) of this Section 1017 in accordance with such
paragraph.
SECTION 1018. Provision of Financial Information.
So long as any of the Securities are Outstanding, and in addition to
and without limitation of the Company's obligations pursuant to Section 704,
whether or not the Company is subject to Section 13(a) or 15(d) of the Exchange
Act, the Company shall file with the Commission the annual reports, quarterly
reports and other documents that the Company would have been required to file
with the Commission pursuant to such Sections 13(a) and 15(d) of the Exchange
Act if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject, provided that the Commission permits such filing. The
Company shall also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to
Section 13(a) and 15(d) of the Exchange Act if the
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Company were subject to such Sections and (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act, promptly
upon written request supply copies of such documents to any prospective Holder.
SECTION 1019. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of Sections 1004 to 1018,
inclusive, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default and the action
which the Company proposes to take with respect thereto.
SECTION 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1017, inclusive, if before
or after the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the election of the Company
from time to time in the event that on or before May 15, 2001 the Company
receives net proceeds from the sale of its Capital Stock (other than
Disqualified Stock) in one or more offerings, in which case the Company may, at
its option and from time to time, use all or a portion of any such net proceeds
to redeem Securities in a principal amount of at least $5,000,000 and up to
aggregate amount equal to 35% of the Original Securities, provided, however,
that Securities in an amount equal to at least 65% of the Original Securities
remain outstanding after each such redemption. Any such redemption must occur on
a Redemption Date within 75 days of any such sale and upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Securities to be redeemed at
such Holder's address appearing in the Security Register, at a Redemption Price
of 108.875% of the principal amount of the Securities plus accrued interest to
but excluding the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date).
(b) In addition, the Securities may be redeemed at the election of
the Company, as a whole or from time to time in part, at any time on or after
May 15, 2003 and prior to maturity, upon not less than 30 nor more than 60 days'
notice mailed to each Holder of Securities to be redeemed at the address
appearing in the Security Register, in amounts of $1,000 or an integral multiple
of $1,000, at the Redemption Prices specified in the form of Security
hereinbefore set forth, together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
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SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of the Securities, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 1104. Securities to Be Redeemed Pro Rata.
If less than all the Securities are to be redeemed in any
redemption, the Securities to be redeemed shall be selected from the Outstanding
Securities not previously called for redemption, not more than 60 days prior to
the Redemption Date by the Trustee pro rata, by lot or by such other method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section 1101(a)
or (b) and, if being made pursuant to either Section 1101(a), a brief
statement setting forth the Company's right to effect such redemption and
the Company's basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that in the case that a Security is only redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities in an aggregate amount equal to the unredeemed portion of the
Security.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its
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own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the
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unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner herein after set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company
subordinated to the payment of the Securities,
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such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of (or premium, if any) or
interest on the Securities or on account of purchase or other acquisition of
Securities by the Company or any Subsidiary (all such payments, distributions,
purchases and acquisitions herein referred to individually and collectively, as
a "Securities Payment"), and to that end the holders of Senior Debt shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities
which may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all Senior Debt in full in cash or cash equivalents, after giving effect to
any concurrent payment or distribution to or for the holders of Senior Debt
unless the Trustee shall have knowledge, as provided in Section 1209, that the
Senior Debt has been paid in full or payment provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holder of Senior Debt.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include a payment or distribution of stock or
securities of the Company provided for by a plan of reorganization or
readjustment or of any other corporation provided for by such plan of
reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article (any
such stock or securities hereinafter called "Subordinated Consideration"). The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon
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the terms and conditions set forth in Article Eight shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as defined below)
shall have occurred and be continuing, then no Securities Payment (other than in
Subordinated Consideration) shall be made unless and until such Senior Payment
Default shall have been cured or waived or shall have ceased to exist or all
amounts then due and payable in respect of Senior Debt shall have been paid in
full, or provision shall have been made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt.
"Senior Payment Default" means any default in the payment of principal of (or
premium, if any) or interest with respect to the Senior Debt when due, whether
at the Stated Maturity of any such payment or by declaration of acceleration,
call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from the Agent
Bank for the Credit Agreement (or any successor credit facility) or such other
holder of Senior Debt as the Company shall have designated in an Officers'
Certificate delivered to the Trustee (the "Designated Senior Debt"), no
Securities Payment (other than in Subordinated Consideration) shall be made
during the period (the "Payment Blockage Period") commencing on the date of such
receipt of such written notice and ending on the earlier of (i) the date on
which such Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist and any acceleration of Senior Debt shall have been
rescinded or annulled or the Senior Debt to which such Senior Nonmonetary
Default relates shall have been discharged or (ii) the 179th day after the date
of such receipt of such written notice; provided,
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however, that no more than one Payment Blockage Period may be commenced with
respect to the Securities during any 360-day period and there shall be a period
of at least 181 consecutive days in each such 360-day period when no Payment
Blockage Period is in effect. For all purposes of this paragraph, no Senior
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period by holders of Senior Debt
or their representatives unless such Senior Nonmonetary Default shall have been
cured or waived for a period of not less than 90 consecutive days. "Senior
Nonmonetary Default" means the occurrence or existence of any event,
circumstance, condition or state of facts that, by the terms of any instrument
pursuant to which any Senior Debt is outstanding, permits one or more holders of
such Senior Debt (or a trustee or agent on behalf of the holders thereof) then
to declare such Senior Debt due and payable prior to the date on which it would
otherwise become due and payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee as provided in Section 1209
or, as the case may be, such Holder, then and in such event such payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in Section 1202 or under the
conditions described in Section 1203, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge
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that such payment would have been prohibited by the provisions of this Article.
SECTION 1205. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due
on or in respect of Senior Debt, or provision being made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, the Holders of the Securities shall be subrogated to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company) to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
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Securities and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies other wise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regard less of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing
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Senior Debt; (iii) release any Person liable in any manner for the collection of
Senior Debt; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist, provided, however, that if a Responsible Officer of the Trustee shall not
have received, at least three Business Days prior to the date upon which by the
terms hereof any such money may become payable for any purpose, the notice with
respect to such money provided for in this Section 1209, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor);
provided, however, that failure to give such notice to the Company shall not
affect in any way the ability of the Trustee to rely on such notice. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such
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Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1210. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 601, and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the 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.
SECTION 1211. Trustee Not Fiduciary for Holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt, shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
-123-
SECTION 1212. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1212 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. Defeasance of this Article Twelve.
The subordination of the Securities provided by this Article Twelve
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time
(subject to 10-day prior written notification to the Trustee), elect to have
either Section 1302 or Section 1303 applied to the Outstanding Securities upon
compliance with the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 307, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Thirteen. Subject to compliance
with this Article Thirteen, the Company may exercise its option under this
Section 1302 notwithstanding the prior exercise of its option under Section
1303.
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SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section (i) the Company shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3) and (4)
of Section 801, (ii) the occurrence of an event specified in Sections 501(3),
501(4) (with respect to Clauses (3) and (4) of Section 801 and Sections 1005
through 1018, inclusive), 501(5) and 501(6) shall not be deemed to be an Event
of Default and (iii) the provisions of Article Twelve shall cease to be
effective, on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that 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
Section or Article, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized accounting
firm expressed in a written certification thereof delivered
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to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and each installment of interest on the Securities on
the Stated Maturity of such principal or installment of interest on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(8)
and (9) are concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
-127-
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(5) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
(6) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge 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 deposit, defeasance and discharge had not
occurred.
(7) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit
and 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.
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit and defeasance or covenant
defeasance shall not result in the trust arising from such deposit
constituting an investment company as defined in the Investment Company
Act of 1940, as amended, or such trust shall be
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qualified under such act or exempt from regulation thereunder.
(9) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of (or premium, if any) or interest on any
Senior Debt shall have occurred and be continuing, and no event of default
with respect to any Senior Debt shall have occurred and be continuing and
shall have resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable and (B) no other event of default with respect to any Senior Debt
shall have occurred and be continuing permitting (after notice or the
lapse of time, or both) the holders of such Senior Debt (or a trustee on
behalf of the holders thereof) to declare such Senior Debt due and payable
prior to the date on which it would otherwise have become due and payable,
or, in the case of either Clause (A) or Clause (B) above, each such
default or event of default shall have been cured or waived or shall have
ceased to exist.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may deter mine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
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respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Out standing Securities.
Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized accounting firm
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-130-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GRANITE BROADCASTING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President-Finance and
Controller
[SEAL]
Attest:
/s/ [ILLEGIBLE]
-----------------------
THE BANK OF NEW YORK, as Trustee
By
--------------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GRANITE BROADCASTING CORPORATION
By
--------------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------
THE BANK OF NEW YORK, as Trustee
By /s/ Van ▇. ▇▇▇▇▇
--------------------------------------
Name: Van ▇. ▇▇▇▇▇
Title: Assistant Vice President
[SEAL]
Attest:
/s/ [ILLEGIBLE]
-----------------------
-131-
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 11th day of May, 1998, before me personally came ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President-Finance and Controller of Granite Broadcasting Corporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ [ILLEGIBLE]
------------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 11th day of May, 1998, before me personally came Van ▇.
▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is a
Assistant Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the By-Laws of said corporation;
and that he signed his name thereto by like authority.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1998
-132-
ANNEX A - Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 306(b)(i) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: 8 7/8% Senior Subordinated
Notes due May 15, 2008 of
Granite Broadcasting
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 11, 1998 (the
"Indenture"), from Granite Broadcasting Corporation (the "Company") to The Bank
of New York, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $_______________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No. ▇▇▇▇▇▇▇▇▇
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
The Specified Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.
A-1
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting
on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
A-2
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
A-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
▇-▇
▇▇▇▇▇ ▇ - ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 306(b)(ii) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: 8 7/8% Senior Subordinated
Notes due May 15, 2008 of
Granite Broadcasting
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 11, 1998 (the
"Indenture"), from Granite Broadcasting Corporation (the "Company") to The Bank
of New York, as Trustee. Terms used herein and defined in the Indenture or in
Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
The Specified Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In
B-1
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as:
i. Rule 144A Transfers. If the transfer is being effected
in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer;
and
ii. Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
B-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
▇-▇
▇▇▇▇▇ ▇ - ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 306(c))
[ ]
[ ]
[ ]
[ ]
Re: 8 7/8% Senior Subordinated
Notes due May 15, 2008 of
Granite Broadcasting
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 11, 1998 (the
"Indenture"), from Granite Broadcasting Corporation (the "Company") to The Bank
of New York, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Under signed, as or on
behalf of the Owner.
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The Owner has requested that the Specified Securities be exchanged
for Securities bearing no Securities Act Legend pursuant to Section 306(c) of
the Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a holding period of at least three years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Company or from an affiliate of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
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ANNEX D -- Form of Certification to
be Given by Holders of Beneficial
Interest in a Regulation S Temporary
Global Security
OWNER SECURITIES CERTIFICATION
GRANITE BROADCASTING CORPORATION
8 7/8% Senior Subordinated Notes due May 15, 2008
This is to certify that, as of the date hereof, $________ of the
above-captioned Securities are beneficially owned by non-U.S. person(s). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
Dated:______________, ____
By:____________________________________________
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate
relates.
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ANNEX E -- Form of Certification to
be Given by the Euroclear Operator
or Cedel S.A.
DEPOSITARY SECURITIES CERTIFICATION
GRANITE BROADCASTING CORPORATION
8 7/8% Senior Subordinated Notes due May 15, 2008
This is to certify that, with respect to U.S.$___________ principal
amount of the above-captioned Securities, except as set forth below, we have
received in writing, by tested telex or by electronic transmission, from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of Securities set forth above (our "Member Organizations"),
certifications with respect to such portion, substantially to the effect set
forth in the Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Regulation S Temporary Global Security (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with
E-1
which this certification is or would be relevant, we irrevocably authorize you
to produce this certification to any interested party in such proceedings.
Dated: _____________, _______
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By____________________________
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