EXHIBIT 4.1
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GRAY COMMUNICATIONS SYSTEMS, INC.,
As Issuer,
THE SUBSIDIARY GUARANTORS
named herein
AND
BANKERS TRUST COMPANY
As Trustee
INDENTURE
Dated as of , 1996
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$150,000,000
% SENIOR SUBORDINATED NOTES DUE 2006
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;12.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02;12.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04;6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
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* This Cross-Reference Table is not part of the Indenture.
** Not applicable.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.03. Incorporation by Reference of TIA . . . . . . . . . . . . . . 18
SECTION 1.04. Rules of Construction.. . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.02. Execution and Authentication. . . . . . . . . . . . . . . . . 19
SECTION 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . 19
SECTION 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . 20
SECTION 2.05. Holder Lists. . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.09. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.13. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.14. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Redemption Provisions . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.02. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.03. Selection of Notes to be Redeemed or Purchased. . . . . . . . 26
SECTION 3.04. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.05. Effect of Notice of Redemption. . . . . . . . . . . . . . . . 27
SECTION 3.06. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 27
SECTION 3.07. Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . 28
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium, and Interest . . . . . . . . . 28
SECTION 4.02. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.03. Compliance Certificate. . . . . . . . . . . . . . . . . . . . 29
SECTION 4.04. Stay, Extension and Usury Laws. . . . . . . . . . . . . . . . 30
SECTION 4.05. Limitation on Restricted Payments . . . . . . . . . . . . . . 30
SECTION 4.06. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.07. Limitation on Incurrence of Indebtedness. . . . . . . . . . . 32
SECTION 4.08. Limitation on Transactions with Affiliates. . . . . . . . . . 34
SECTION 4.09. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.11. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . . . . . . . . . . . . . 35
SECTION 4.12. Maintenance of Office or Agency . . . . . . . . . . . . . . . 36
SECTION 4.13. Change of Control . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.14. Limitation on Asset Sales . . . . . . . . . . . . . . . . . . 38
SECTION 4.15. Limitation on Incurrence of Senior Subordinated
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.16. Limitation on Issuance and Sale of Capital
Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.17. Future Subsidiary Guarantors. . . . . . . . . . . . . . . . . 41
SECTION 4.18. Maintenance of Properties . . . . . . . . . . . . . . . . . . 41
SECTION 4.19. Maintenance of Insurance. . . . . . . . . . . . . . . . . . . 42
SECTION 4.20. Deposit of Trust Funds with Trustee
Pending Consummation of Phipps Acquisition. . . . . . . . . . 42
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets. . . . . . . . . . . 43
SECTION 5.02. Surviving Person Substituted. . . . . . . . . . . . . . . . . 44
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 47
SECTION 6.05. Control by Majority of Holders. . . . . . . . . . . . . . . . 48
SECTION 6.06. Limitation of Suits by Holders. . . . . . . . . . . . . . . . 48
SECTION 6.07. Rights of Holders to Receive Payment. . . . . . . . . . . . . 48
SECTION 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . 49
SECTION 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 49
SECTION 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . 52
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.05. Notice to Holders of Defaults and Events of Default . . . . . 53
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . 53
SECTION 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . . . 53
SECTION 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . 54
SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . 55
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . 55
SECTION 7.11. Preferential Collection of Claims Against Company . . . . . . 56
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance . . . . . . . . . 56
SECTION 8.02. Conditions to Defeasance. . . . . . . . . . . . . . . . . . . 57
SECTION 8.03. Application of Trust Money. . . . . . . . . . . . . . . . . . 58
SECTION 8.04. Repayment to Company. . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.05. Indemnity for U.S. Government Obligations . . . . . . . . . . 59
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 59
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ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted
Without Consent of Holders . . . . . . . . . . . . . . . . 59
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders . . . 60
SECTION 9.03. Compliance with TIA . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.04. Revocation and Effect of Consents . . . . . . . . . . . . . . 62
SECTION 9.05. Notation on or Exchange of Notes. . . . . . . . . . . . . . . 62
SECTION 9.06. Trustee Protected . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE X
SUBORDINATION
SECTION 10.01. Agreement to Subordinate. . . . . . . . . . . . . . . . . . . 63
SECTION 10.02. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . . 63
SECTION 10.03. Default on Senior Debt. . . . . . . . . . . . . . . . . . . . 64
SECTION 10.04. When Distributions Must Be Paid Over. . . . . . . . . . . . . 65
SECTION 10.05. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.07. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.08. The Company and Holders May Not Impair Subordination. . . . . 67
SECTION 10.09. Distribution or Notice to Representative. . . . . . . . . . . 68
SECTION 10.10. Rights of Trustee and Paying Agent. . . . . . . . . . . . . . 68
SECTION 10.11. Authorization to Effect Subordination . . . . . . . . . . . . 69
SECTION 10.12. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE XI
SUBSIDIARY GUARANTEES
SECTION 11.01. Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.02. Trustee to Include Paying Agents. . . . . . . . . . . . . . . 71
SECTION 11.03. Limits on Subsidiary Guarantees . . . . . . . . . . . . . . . 71
SECTION 11.04. Execution of Subsidiary Guarantee . . . . . . . . . . . . . . 72
SECTION 11.05. Stay, Extension and Usury Laws. . . . . . . . . . . . . . . . 72
SECTION 11.06. Agreement To Subordinate Subsidiary Guarantees
to Guarantor Senior Debt . . . . . . . . . . . . . . . . . 73
SECTION 11.07. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . . 73
SECTION 11.08. Default on Guarantor Senior Debt. . . . . . . . . . . . . . . 74
SECTION 11.09. When Distributions Must Be Paid Over. . . . . . . . . . . . . 75
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SECTION 11.10. Notice 76
SECTION 11.11. Subrogation 76
SECTION 11.12. Relative Rights 77
SECTION 11.13. The Subsidiary Guarantors and Holders May Not
Impair Subordination 77
SECTION 11.14. Distribution or Notice to Representative 78
SECTION 11.15. Rights of Trustee and Paying Agent 78
SECTION 11.16. Authorization To Effect Subordination 79
SECTION 11.17. Payment 79
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. . . . . . . . . . . . . . . . . 79
SECTION 12.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 12.03. Communication by Holders with Other Holders . . . . . . . . . 81
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. . . . . . 81
SECTION 12.05. Statements Required in Certificate or Opinion . . . . . . . . 81
SECTION 12.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . 82
SECTION 12.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.08. No Recourse Against Others. . . . . . . . . . . . . . . . . . 82
SECTION 12.09. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.10. Initial Appointments, Compliance Certificates . . . . . . . . 82
SECTION 12.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.12. No Adverse Interpretation of Other Agreements . . . . . . . . 83
SECTION 12.13. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 12.14. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 12.15. Third Party Beneficiaries . . . . . . . . . . . . . . . . . . 83
SECTION 12.16. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . 83
EXHIBIT A FORM OF NOTE
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THIS INDENTURE, dated as of __________, 1996, is by and among (i) Gray
Communications Systems, Inc. (the "COMPANY"), as issuer of the % Senior
Subordinated Notes due 2006 (the "NOTES"), (ii) The Albany Herald Publishing
Company, Inc., a Georgia corporation, The Southwest Georgia Shopper, Inc., a
Georgia corporation, WALB-TV, Inc., a Georgia corporation, WJHG-TV, Inc., a
Georgia corporation, KTVE, Inc., an Arkansas corporation, Gray Kentucky
Television, Inc., a Georgia corporation, WRDW-TV, Inc., a Georgia corporation,
The Rockdale Citizen Publishing Company, a Georgia corporation, Gray Real Estate
& Development Company, a Georgia corporation, Gray Transportation Company, Inc.,
a Georgia corporation, WALB Licensee Corp., a Delaware corporation, WJHG
Licensee Corp., a Delaware corporation, WKYT Licensee Corp., a Delaware
corporation, WRDW Licensee Corp., a Delaware corporation, WYMT Licensee Corp., a
Delaware corporation, WKXT Licensee Corp., a Delaware corporation, WCTV
Operating Corp., a Delaware corporation, WKXT-TV, Inc., a Delaware corporation,
and Gray Television Management, Inc., a Delaware corporation, as guarantors of
the Company's obligations under this Indenture and the Notes (each a "SUBSIDIARY
GUARANTOR"), and (iii) Bankers Trust Company, as trustee (the "TRUSTEE").
The Company, each Subsidiary Guarantor and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the holders
of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions.
"ACQUIRED DEBT" means, with respect to any specified Person, Indebtedness
of any other Person (the "ACQUIRED PERSON") existing at the time the Acquired
Person merges with or into, or becomes a Subsidiary of, such specified Person,
including Indebtedness incurred in connection with, or in contemplation of, the
Acquired Person merging with or into, or becoming a Subsidiary of, such
specified Person.
"AFFILIATE" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") of any Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent, or co-registrar.
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"ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement dated as of
December 15, 1995, and amended on March 15, 1996, between Media Acquisition
Partners, L.P. and the Company.
"ASSET SALE" means (i) any sale, lease, conveyance or other disposition by
the Company or any Subsidiary of the Company of any assets (including by way of
a sale-and-leaseback) other than in the ordinary course of business (provided
that the sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company shall not be an "Asset Sale" but instead shall
be governed by the provisions of Section 5.01), or (ii) the issuance or sale of
Capital Stock of any Subsidiary of the Company, in each case, whether in a
single transaction or a series of related transactions, to any Person (other
than to the Company or a Subsidiary Guarantor), provided that the term "Asset
Sale" shall not include any disposition or dispositions during any twelve-month
period of assets or property having a fair market value of less than $250,000 in
the aggregate.
"BANKRUPTCY LAW" means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors, or any amendment to, succession to or change in any such law.
"BOARD OF DIRECTORS" means the Company's board of directors or any
authorized committee of such board of directors.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" of any Person means the obligations to pay rent
or other amounts under a lease of (or other Indebtedness arrangements conveying
the right to use) real or personal property of such Person which are required to
be classified and accounted for as a capital lease or liability on the face of a
balance sheet of such Person in accordance with GAAP. The amount of such
obligations shall be the capitalized amount thereof in accordance with GAAP and
the stated maturity thereof 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, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person, including any Preferred Stock.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
guaranteed by the United States of America, or any governmental entity or agency
or political subdivision
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thereof (PROVIDED, that the full faith and credit of the United States of
America is pledged in support thereof) maturing within one year of the date of
purchase; (ii) commercial paper issued by corporations, each of which shall have
a consolidated net worth of at least $500 million, maturing within 180 days from
the date of the original issue thereof, and rated "P-1" or better by Moody's
Investors Service or "A-1" or better by Standard & Poor's Corporation or an
equivalent rating or better by any other nationally recognized securities rating
agency; and (iii) certificates of deposit issued or acceptances accepted by or
guaranteed by any bank or trust company organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each case
having capital, surplus and undivided profits totalling more than $500 million,
maturing within one year of the date of purchase.
"CHANGE OF CONTROL" means the occurrence of either of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), disregarding the Permitted Holders, becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person or group shall be deemed to have beneficial ownership of
all shares of Capital Stock that such person or group has the right to acquire
regardless of when such right is first exercisable), directly or indirectly, of
more than 35% of the total voting power represented by the outstanding Voting
Stock of the Company; PROVIDED that the Permitted Holders "beneficially own" (as
so defined) a lesser percentage of such Voting Stock than such other Person and
do not have the right or ability by voting power, contract or otherwise to elect
or designate for election a majority of the Board of Directors of the Company;
(b) the Company merges with or into another Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person merges with or into the Company, in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is converted into or exchanged for cash, securities or other
property, other than any such transaction where (x) the outstanding Voting Stock
of the Company is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee corporation and
(y) immediately after such transaction no "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), disregarding the
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-
5 under the Exchange Act, except that a person or group shall be deemed to have
beneficial ownership of all shares of Capital Stock that such person or group
has the right to acquire regardless of when such right is first exercisable),
directly or indirectly, of more than 35% of the total voting power represented
by the outstanding Voting Stock of the surviving or transferee corporation;
(c) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new
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directors whose election by the Board of Directors of the Company or whose
nomination for election by the stockholders of the Company was approved by (x) a
vote of at least a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved (as described in this clause (x) or in
the following clause (y)) or (y) Permitted Holders that are "beneficial owners"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of a majority of
the total voting power represented by the outstanding Voting Stock of the
Company) cease for any reason to constitute a majority of the Board then in
office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means Gray Communications Systems, Inc., a Georgia corporation,
unless and until a successor replaces it in accordance with Article V and
thereafter means such successor.
"CONCURRENT OFFERING" means the public offering by the Company of up to
4,025,000 shares of its Class B Common Stock, no par value, for closing on the
date hereof, including the sale of any such shares of Class B Common Stock in
connection with the exercise of any over-allotment options granted to the
underwriters of such public offering.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any period, the sum
of (i) the interest expense of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied,
including, without limitation, (a) amortization of debt discount, (b) the net
payments, if any, under interest rate contracts (including amortization of
discounts), (c) the interest portion of any deferred payment obligation and (d)
accrued interest, plus (ii) the interest component of the Capital Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
during such period, and all capitalized interest of the Company and its
Subsidiaries, plus (iii) cash dividends declared or paid in respect of any
Preferred Stock of the Company and its Subsidiaries during such period, in each
case as determined on a consolidated basis in accordance with GAAP consistently
applied. For purposes of this definition, the amount of any cash dividends
declared or paid will be deemed to be equal to the amount of such dividends
multiplied by a fraction, the numerator of which is one and the denominator of
which is one minus the maximum statutory combined Federal, state, local and
foreign income tax rate then applicable to the Company and its Subsidiaries
(expressed as a decimal between one and zero) on a consolidated basis.
"CONSOLIDATED NET INCOME" means, with respect to any period, the net income
(or loss) of the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP consistently applied, adjusted, to
the extent included in calculating such
-5-
net income (or loss), by excluding, without duplication, (i) all extraordinary
gains but not losses, (ii) the portion of net income (or loss) of the Company
and its Subsidiaries allocable to interests in unconsolidated Persons, except to
the extent of the amount of dividends or distributions actually paid to the
Company or its Subsidiaries by such other Person during such period, (iii) net
income (or loss) of any Person combined with the Company or any of its
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iv) net gain but not losses in respect of Asset
Sales, or (v) the net income of any Subsidiary to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that
income to the Company is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders.
"CONSOLIDATED NET WORTH" means, with respect to any Person on any date, the
equity of the common and preferred stockholders of such Person and its
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP consistently applied.
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee specified
in Section 12.02 or such other address as the Trustee may give notice to the
Company.
"CUMULATIVE CONSOLIDATED INTEREST EXPENSE" means, as of any date of
determination, Consolidated Interest Expense from the last day of the month
immediately preceding the Issue Date to the last day of the most recently ended
month prior to such date, taken as a single accounting period.
"CUMULATIVE OPERATING CASH FLOW" means, as of any date of determination,
Operating Cash Flow from the last day of the month immediately preceding the
Issue Date to the last day of the most recently ended month prior to such date,
taken as a single accounting period.
"CUSTODIAN" means any custodian, receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEBT TO OPERATING CASH FLOW RATIO" means, with respect to any date of
determination, the ratio of (i) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Subsidiaries as of such date on
a consolidated basis, to (ii) Operating Cash Flow of the Company and its
Subsidiaries on a consolidated basis for the four most recent full fiscal
quarters ending on or immediately prior to such date, determined on a pro forma
basis after giving pro forma effect to (i) the incurrence of all Indebtedness to
be incurred on such date and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was incurred, and the application of such proceeds occurred, at the beginning of
such four-quarter period; (ii) the incurrence, repayment or
-6-
retirement of any other Indebtedness by the Company and its Subsidiaries since
the first day of such four-quarter period as if such Indebtedness was incurred,
repaid or retired at the beginning of such four-quarter period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average balance of such Indebtedness
at the end of each month during such four-quarter period); (iii) in the case of
Acquired Debt, the related acquisition as if such acquisition had occurred at
the beginning of such four-quarter period; and (iv) any acquisition or
disposition by the Company and its Subsidiaries of any company or any business
or any assets out of the ordinary course of business, or any related repayment
of Indebtedness, in each case since the first day of such four-quarter period,
assuming such acquisition or disposition had been consummated on the first day
of such four-quarter period. In addition, the consolidated net income of a
Person with outstanding Indebtedness or Capital Stock providing for a Payment
Restriction which is permitted to exist by reason of clause (c) of Section 4.11
shall not be taken into account in determining whether any Indebtedness is
permitted to be incurred under this Indenture.
"DEFAULT" means any event that is, or after the giving of notice or passage
of time or both would be, an Event of Default.
"DESIGNATED SENIOR DEBT" means (i) any Senior Debt outstanding under the
Senior Credit Facility and (ii) if no Senior Debt is outstanding under the
Senior Credit Facility, any other Senior Debt of the Company permitted to be
incurred under this Indenture the principal amount of which is $50,000,000 or
more at the time of the designation of such Senior Debt as "Designated Senior
Debt" by the Company in a written instrument delivered to the Trustee.
"DISPOSITION" means, with respect to any Person, any merger, consolidation
or other business combination involving such Person (whether or not such Person
is the Surviving Person) or the sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of such Person's assets.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part on or prior to the
stated maturity of the Notes.
"DOLLARS" and "$" means lawful money of the United States of America.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
-7-
"FILM CONTRACTS" means contracts with suppliers that convey the right to
broadcast specified films, videotape motion pictures, syndicated television
programs or sports or other programming.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Indebtedness 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 Indebtedness or to purchase
(or to advance or supply funds for the purpose of) any security for the payment
of such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness, 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 Indebtedness (and "guaranteed,"
"guaranteeing" and "guarantor" shall have the meanings correlative to the
foregoing); 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.
"GUARANTOR SENIOR DEBT" means, with respect to any Subsidiary Guarantor,
(i) the principal of, premium, if any, and interest on and all other monetary
Obligations of every kind or nature due on or in connection with any
Indebtedness of such Subsidiary Guarantor outstanding under or in respect of the
Senior Credit Facility that is permitted to be incurred under the Indenture,
(ii) principal of and premium, if any, and interest on and all other monetary
Obligations of every kind or nature due on or in connection with all
Indebtedness of such Subsidiary Guarantor that is permitted to be incurred under
the Indenture that is not by its terms PARI PASSU with or subordinated to the
Subsidiary Guarantee of such Subsidiary Guarantor, (iii) all Obligations of such
Subsidiary Guarantor with respect to the Indebtedness referred to in the
foregoing classes (i) and (ii), including, in the case of Indebtedness
outstanding under the Senior Credit Facility, Post-Petition Interest, and
(iv) all (including all subsequent) renewals, extensions, amendments,
refinancings, repurchases or redemptions, modifications, supplements,
replacements, increases or refundings thereof (whether or not coincident
therewith), in whole or in part under one or more agreements or instruments,
that are not prohibited by the Indenture. Notwithstanding the foregoing,
Guarantor Senior Debt shall not include (a) any Indebtedness for federal, state,
local or other taxes, (b) any Indebtedness among or between the Company, any
Subsidiary and/or their Affiliates, (c) any accounts payable or other liability
to trade creditors arising in the ordinary course of business, (d) any
-8-
Indebtedness that is incurred in violation of the Indenture, (e) Indebtedness
evidenced by the Subsidiary Guarantee of such Subsidiary Guarantor,
(f) Indebtedness of a Subsidiary Guarantor that is expressly subordinate or
junior in right of payment to any other Indebtedness of such Subsidiary
Guarantor or (g) Indebtedness of such Subsidiary Guarantor representing a
guarantee of Subordinated Debt or Pari Passu Indebtedness.
"HOLDER" means any person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any Person, without duplication, and
whether or not contingent, (i) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services or which is
evidenced by a note, bond, debenture or similar instrument, (ii) all Capital
Lease Obligations of such Person, (iii) all obligations of such Person in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person, (iv) all Interest Rate Agreement Obligations of such
Person, (v) all liabilities secured by any Lien on any property owned by such
Person even if such Person has not assumed or otherwise become liable for the
payment thereof to the extent of the lesser of (x) the amount of the Obligations
so secured and (y) the fair market value of the property subject to such Lien,
(vi) all obligations to purchase, redeem, retire, or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (vii) to the extent not
included in (vi), all Disqualified Stock issued by such Person, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends thereon, and (viii) to the extent not otherwise
included, any guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (i) through (vii) above. "Indebtedness"
of the Company and its Subsidiaries shall not include current trade payables
incurred in the ordinary course of business and payable in accordance with
customary practices, and non-interest bearing installment obligations and
accrued liabilities incurred in the ordinary course of business which are not
more than 90 days past due. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by the fair market value of, such Disqualified Stock,
such fair market value is to be determined in good faith by the board of
directors of the issuer of such Disqualified Stock.
"INDENTURE" means this Indenture as amended or supplemented from time to
time.
"INDEPENDENT DIRECTOR" means a director of the Company other than a
director (i) who (apart from being a director of the Company or any Subsidiary)
is an employee, associate or Affiliate of the Company or a Subsidiary or has
held any such position during the previous
-9-
five years, or (ii) who is a director, employee, associate or Affiliate of
another party to the transaction in question.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to any Person,
any liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect to
such Person, whether voluntary or involuntary.
"INTEREST DIFFERENTIAL" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company, the difference between the rate of
interest on the Notes and the rate of interest on the Senior Debt immediately
prior to the commencement of such Insolvency or Liquidation Proceeding,
excluding in each case any increase in the rate of interest resulting from any
default or event of default.
"INTEREST RATE AGREEMENT OBLIGATIONS" means, with respect to any Person,
the Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates of such Person) in the form of
loans, guarantees, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Capital Stock or other securities and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP. "Investments" shall exclude extensions of trade credit (including
extensions of credit in respect of equipment leases) by the Company and its
Subsidiaries in the ordinary course of business in accordance with normal trade
practices of the Company or such Subsidiary, as the case may be.
"ISSUE" means create, issue, assume, guarantee, incur or otherwise become,
directly or indirectly, liable for any Indebtedness or Capital Stock, as
applicable; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by
designation, merger, consolidation, acquisition or otherwise) shall be deemed to
be issued by such Subsidiary at the time it becomes a Subsidiary. For this
definition, the terms "issuing," "issuer," "issuance" and "issued" have meanings
correlative to the foregoing.
"ISSUE DATE" means the date of original issuance of the Notes.
-10-
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the principal
office of the Trustee is located are not required to be open.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"NET PROCEEDS" means, with respect to any Asset Sale by any Person, the
aggregate cash proceeds received by such Person and/or its Affiliates in respect
of such Asset Sale, which amount is equal to the excess, if any, of (i) the cash
received by such Person and/or its Affiliates (including any cash payments
received by way of deferred payment pursuant to, or monetization of, a note or
installment receivable or otherwise, but only as and when received) in
connection with such Asset Sale, over (ii) the sum of (a) the amount of any
Indebtedness that is secured by such asset and which is required to be repaid by
such Person in connection with such Asset Sale, plus (b) all fees, commissions
and other expenses incurred by such Person in connection with such Asset Sale,
plus (c) provision for taxes, including income taxes, attributable to the Asset
Sale or attributable to required prepayments or repayments of Indebtedness with
the proceeds of such Asset Sale, plus (d) a reasonable reserve for the after-tax
cost of any indemnification payments (fixed or contingent) attributable to
seller's indemnities to purchaser in respect of such Asset Sale undertaken by
the Company or any of its Subsidiaries in connection with such Asset Sale plus
(e) if such Person is a Subsidiary, any dividends or distributions payable to
holders of minority interests in such Subsidiary from the proceeds of such Asset
Sale.
"NOTES" means the _______% Senior Subordinated Notes due 2006 as amended or
supplemented from time to time in accordance with the terms hereof that are
issued pursuant to this Indenture.
"OBLIGATIONS" means any principal, interest (including, without limitation,
in the case of Senior Debt under the Senior Credit Facility, Post-Petition
Interest), penalties, fees, indemnifications, reimbursement obligations, damages
and other liabilities payable under the documentation governing any
Indebtedness.
"OFFER" means a Change of Control Offer made pursuant to Section 4.13 or an
Asset Sale Offer made pursuant to Section 4.14.
-11-
"OFFICER" means, with respect to any Person, the Chairman, the President,
the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of the
Company.
"OPERATING CASH FLOW" means, with respect to any period, the Consolidated
Net Income of the Company and its Subsidiaries for such period, plus (i)
extraordinary net losses and net losses realized on any sale of assets during
such period, to the extent such losses were deducted in computing Consolidated
Net Income, plus (ii) provision for taxes based on income or profits, to the
extent such provision for taxes was included in computing such Consolidated Net
Income, and any provision for taxes utilized in computing the net losses under
clause (i) hereof, plus (iii) Consolidated Interest Expense of the Company and
its Subsidiaries for such period, plus (iv) depreciation, amortization and all
other non-cash charges, to the extent such depreciation, amortization and other
non-cash charges were deducted in computing such Consolidated Net Income
(including amortization of goodwill and other intangibles, including Film
Contracts and write-downs of Film Contracts), but excluding any such charges
which represent any accrual of, or a reserve for, cash charges for a future
period, minus (v) any cash payments contractually required to be made with
respect to Film Contracts (to the extent not previously included in computing
such Consolidated Net Income), minus (vi) non-cash items increasing Consolidated
Net Income (to the extent included in computing such Consolidated Net Income).
"OPINION OF COUNSEL" means a written opinion in form and substance
satisfactory to, and from legal counsel acceptable to, the Trustee (such counsel
may be an employee of or counsel to the Company or the Trustee).
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Company or a
Subsidiary Guarantor which ranks PARI PASSU in right of payment with the Notes
or the Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be
(whether or not such Indebtedness is secured by any Lien).
"PERMITTED HOLDERS" means (i) each of J. Mack Robinson and Robert S.
Prather, Jr.; (ii) their spouses and lineal descendants; (iii) in the event of
the incompetence or death of any of the Persons described in clauses (i) and
(ii), such Person's estate, executor, administrator, committee or other personal
representative; (iv) any trusts created for the benefit of the Persons described
in clause (i) or (ii); or (v) any Person controlled by any of the Persons
described in clause (i), (ii), or (iv). For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct
-12-
or cause the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
"PERMITTED INVESTMENTS" means (i) any Investment in the Company or any
Subsidiary Guarantor; (ii) any Investments in Cash Equivalents; (iii) any
Investment in a Person (an "Acquired Person") if, as a result of such
Investment, (a) the Acquired Person becomes a Subsidiary Guarantor, or (b) the
Acquired Person either (1) is merged, consolidated or amalgamated with or into
the Company or a Subsidiary Guarantor and the Company or such Subsidiary
Guarantor is the Surviving Person, or (2) transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or a Subsidiary Guarantor;
(iv) Investments in accounts and notes receivable acquired in the ordinary
course of business; and (v) Interest Rate Agreement Obligations permitted
pursuant to Section 4.07(b)(vi).
"PERMITTED LIENS" means (i) Liens on assets or property of the Company that
secure Senior Debt of the Company, either existing on the Issue Date or which is
permitted to be incurred under this Indenture, and Liens on assets or property
of a Subsidiary Guarantor that secure Guarantor Senior Debt of such Subsidiary
Guarantor, either existing on the Issue Date or which is permitted to be
incurred under this Indenture; (ii) Liens securing Indebtedness of a Person
existing at the time that such Person is merged into or consolidated with the
Company or a Subsidiary of the Company; PROVIDED that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of such Person; (iii) Liens on property
acquired by the Company or a Subsidiary; PROVIDED that such Liens were in
existence prior to the contemplation of such acquisition and do not extend to
any other property; (iv) Liens in favor of the Company or any Subsidiary of the
Company; (v) Liens incurred, or pledges and deposits in connection with,
workers' compensation, unemployment insurance and other social security
benefits, and leases, appeal bonds and other obligations of like nature incurred
by the Company or any Subsidiary of the Company in the ordinary course of
business; (vi) Liens imposed by law, including, without limitation, mechanics',
carriers', warehousemen's, materialmen's, suppliers' and vendors' Liens,
incurred by the Company or any Subsidiary of the Company in the ordinary course
of business; (vii) Liens for ad valorem, income or property taxes or assessments
and similar charges which either are not delinquent or are being contested in
good faith by appropriate proceedings for which the Company has set aside on its
books reserves to the extent required by GAAP; (viii) Liens securing Senior Debt
or Guarantor Senior Debt under the Senior Credit Facility; and (ix) Liens
created under this Indenture.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
-13-
"PHIPPS ACQUISITION" means the acquisition by the Company of the Phipps
Business (as defined in the Prospectus) pursuant to the Asset Purchase
Agreement.
"POST-PETITION INTEREST" means, with respect to any Indebtedness of any
Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding.
"PREFERRED STOCK" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"PROSPECTUS" means the final prospectus dated _________________, 1996.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of Capital
Stock (other than Disqualified Stock) of the Company subsequent to the Issue
Date (excluding capital stock which may be issued upon exercise of any over-
allotment option exercisable after the Issue Date and granted in connection with
the Concurrent Offering), pursuant to an effective registration statement filed
under the Securities Act, the net proceeds of which to the Company (after
deducting any underwriting discounts and commissions) exceed $25,000,000.
"PURCHASE DATE" means (i) in the case of a Change of Control Offer pursuant
to Section 4.13, the Change of Control Purchase Date and (ii) in the case of an
Asset Sale Offer pursuant to Section 4.14, the Asset Sale Offer Purchase Date.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries incurred in connection with the purchase of property or assets for
the business of the Company and its Subsidiaries.
"REORGANIZATION SECURITIES" means, with respect to any Insolvency or
Liquidation Proceeding involving the Company, Capital Stock or other securities
of the Company as reorganized or readjusted (or Capital Stock or any other
securities of any other Person provided for by a plan of reorganization or
readjustment) that are subordinated, at least to the same extent as the Notes,
to the payment of all outstanding Senior Debt after giving effect to such plan
of reorganization or readjustment; PROVIDED, HOWEVER, that if debt securities
(i) such securities shall not provide for amortization (including sinking fund
and mandatory prepayment provisions) commencing prior to six months following
the final scheduled maturity of all Senior
-14-
Debt of the Company (as modified by such plan of reorganization or
readjustment), (ii) if the rate of interest on such securities is fixed, such
rate of interest shall not exceed the greater of (x) the rate of interest on the
Notes and (y) the sum of the rate of interest on the Senior Debt on the
effective date of such plan of reorganization or readjustment and the Interest
Differential, (iii) if the rate of interest on such securities floats, such
interest rate shall not exceed at any time the sum of the interest rate on the
Senior Debt at such time and the Interest Differential, and (iv) such securities
shall not have covenants or default provisions materially more beneficial to
Holders than those in effect with respect to the Notes on the Issue Date.
"REPRESENTATIVE" means, with respect to any Designated Senior Debt, the
indenture trustee or other trustee, agent or other representative(s), if any, of
holders of such Designated Senior Debt.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution declared
or paid on any Capital Stock of the Company or any of its Subsidiaries (other
than dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) of the Company or such Subsidiary or dividends or
distributions payable to the Company or any Subsidiary Guarantor); (ii) any
payment to purchase, redeem or otherwise acquire or retire for value any Capital
Stock of the Company or any Subsidiary of the Company or other Affiliate of the
Company (other than any Capital Stock owned by the Company or any Subsidiary
Guarantor); (iii) any payment to purchase, redeem, defease or otherwise acquire
or retire for value any Subordinated Indebtedness prior to the maturity thereof;
or (iv) any Restricted Investment.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR CREDIT FACILITY" means the credit agreement, entered into as of
, 1996, among the Company; the Subsidiaries of the Company named
therein, the lenders named therein and Society National Bank, as Agent, as the
same may be amended, modified, renewed, refunded, replaced or refinanced from
time to time, including (i) any related notes, letters of credit, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time, and (ii) any notes, guarantees, collateral
documents, instruments and agreements executed in connection with any such
amendment, modification, renewal, refunding, replacement or refinancing.
"SENIOR DEBT" means (i) the principal of, premiums, if any, and interest on
and all other monetary Obligations of every kind or nature due on or in
connection with any Indebtedness outstanding under the Senior Credit Facility
that is permitted to be incurred under the Indenture, (ii) principal of and
premium, if any, and interest on and all other monetary
-15-
Obligations of every kind or nature due on or in connection with all
Indebtedness that is permitted to be incurred under the Indenture that is not by
its terms PARI PASSU with or subordinated to the Notes, (iii) all Obligations of
the Company with respect to Indebtedness referred to in the foregoing clauses
(i) and (ii), including, in the case of Indebtedness outstanding under the
Senior Credit Facility, Post-Petition Interest, and (iv) all (including all
subsequent) renewals, extensions, amendments, refinancings, repurchases or
redemptions, modifications, supplements, replacements, increases or refundings
thereof (whether or not coincident therewith), in whole or in part under one or
more agreements or instruments, that are not prohibited by the Indenture.
Notwithstanding the foregoing, Senior Debt shall not include (a) any
Indebtedness for federal, state, local or other taxes, (b) any Indebtedness
among or between the Company, any Subsidiary of the Company and/or their
Affiliates, (c) any accounts payable or other liability to trade creditors
arising in the ordinary course of business, (d) any Indebtedness that is
incurred in violation of the Indenture, (e) Indebtedness evidenced by the Notes
or (f) Indebtedness of the Company that is expressly subordinate or junior in
right of payment to any other Indebtedness of the Company.
"SPECIAL REDEMPTION DATE" means , 1996.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Company or a
Subsidiary Guarantor if the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding expressly provides that
such Indebtedness is subordinated in right of payment to the Notes or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be.
"SUBSIDIARY" of any Person means (i) any corporation more than 50% of the
outstanding Voting Stock of which is owned or controlled, 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
limited partnership of which such Person or any Subsidiary of such Person is a
general partner, or (iii) any other Person (other than a corporation or limited
partnership) 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 more than 50% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof.
"SUBSIDIARY GUARANTEES" means the guarantees of the Notes issued by the
Subsidiary Guarantors.
"SUBSIDIARY GUARANTOR" means (i) The Albany Herald Publishing Company,
Inc., a Georgia corporation, The Southwest Georgia Shopper, Inc., a Georgia
corporation, WALB-TV, Inc., a Georgia corporation, WJHG-TV, Inc., a Georgia
corporation, KTVE, Inc., an Arkansas corporation, Gray Kentucky Television,
Inc., a Georgia corporation, WRDW-TV,
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Inc., a Georgia corporation, The Rockdale Citizen Publishing Company, a Georgia
corporation, Gray Real Estate & Development Company, a Georgia corporation, Gray
Transportation Company, Inc., a Georgia corporation, WALB Licensee Corp., a
Delaware corporation, WJHG Licensee Corp., a Delaware corporation, WKYT Licensee
Corp., a Delaware corporation, WRDW Licensee Corp., a Delaware corporation, WYMT
Licensee Corp., a Delaware corporation, WKXT Licensee Corp., a Delaware
corporation, WCTV Operating Corp., a Delaware corporation, WKXT-TV, Inc., a
Delaware corporation, and Gray Television Management, Inc., a Delaware
corporation, (ii) each of the Company's Subsidiaries which becomes a guarantor
of the Notes in compliance with the provisions set forth under Section 4.17, and
(iii) each of the Company's Subsidiaries executing a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of the Indenture.
"SURVIVING PERSON" means, with respect to any Person involved in or that
makes any Disposition, the Person formed by or surviving such Disposition or the
Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the Issue Date.
"TRUSTEE" means Bankers Trust Company until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means
such successor.
"TRUST OFFICER" means any vice president, assistant vice president,
treasurer, assistant treasurer, assistant secretary or special assistant
secretary 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 or her knowledge of and familiarity
with the particular subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged, PROVIDED that no U.S. Government Obligation shall
be callable at the Issuer's option prior to the stated maturity date of the
Notes.
"VOTING STOCK" means, with respect to any Person, Capital Stock of such
Person of the class or classes pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
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"WEIGHTED AVERAGE LIFE TO MATURITY" means, with respect to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
"Asset Sale Offer". . . . . . . . . . . . . . . . . . . 4.14
"Asset Sale Offer Purchase Date". . . . . . . . . . . . 4.14
"Asset Sale Offer Trigger Date" . . . . . . . . . . . . 4.14
"Change of Control Offer" . . . . . . . . . . . . . . . 4.13
"Change of Control Purchase Date" . . . . . . . . . . . 4.13
"Collateral Account". . . . . . . . . . . . . . . . . . 4.20
"Covenant Defeasance Option". . . . . . . . . . . . . . 8.01
"Event of Default". . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . 4.14
"Guarantor Payment Blockage Period" . . . . . . . . . . 11.08
"Legal Defeasance Option" . . . . . . . . . . . . . . . 8.01
"Net Offering Proceeds" . . . . . . . . . . . . . . . . 4.20
"Non-Payment Default" . . . . . . . . . . . . . . . . . 10.03
"Notice of Default" . . . . . . . . . . . . . . . . . . 6.01
"Paying Agent". . . . . . . . . . . . . . . . . . . . . 2.03
"Payment Blockage Notice" . . . . . . . . . . . . . . . 10.03
"Payment Blockage Period" . . . . . . . . . . . . . . . 10.03
"Payment Default" . . . . . . . . . . . . . . . . . . . 10.03
"Payment Restriction" . . . . . . . . . . . . . . . . . 4.11
"Permitted Indebtedness". . . . . . . . . . . . . . . . 4.07
"Permitted Payments". . . . . . . . . . . . . . . . . . 4.05
"Purchase Date" . . . . . . . . . . . . . . . . . . . . 3.08
"Refinancing Indebtedness". . . . . . . . . . . . . . . 4.07
"Registrar" . . . . . . . . . . . . . . . . . . . . . . 2.03
"Required Filing Dates" . . . . . . . . . . . . . . . . 4.02
"Special Redemption". . . . . . . . . . . . . . . . . . 3.01
"Special Redemption Price". . . . . . . . . . . . . . . 3.01
"Trustee Expenses". . . . . . . . . . . . . . . . . . . 6.08
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"Trust Funds" . . . . . . . . . . . . . . . . . . . . . 4.20
SECTION 1.03. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the Trust Indenture Act of
1939, as amended ("TIA"), the provision is incorporated by reference in, and
made a part of, this Indenture. Any terms incorporated by reference in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule under the TIA have the meanings so
assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires: (1) a term has the meaning assigned
to it in this Indenture; (2) an accounting term not otherwise defined herein has
the meaning assigned to it under GAAP; (3) "OR" is not exclusive; (4) words in
the singular include the plural, and in the plural include the singular; (5)
provisions apply to successive events and transactions; and (6) any reference to
a Section or Article refers to such Section or Article of this Indenture.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
The Notes, the notation thereon relating to the Subsidiary Guarantees and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit A. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company and the Trustee shall approve
the form of the Notes and any notation, legend or endorsement on them. Each
Note shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes and the Subsidiary
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Subsidiary Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
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SECTION 2.02. Execution and Authentication.
Two Officers of the Company shall sign each Note for the Company by manual
or facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid. Each Subsidiary Guarantor shall execute the Subsidiary
Guarantee in the manner set forth in Section 11.04.
A Note shall not be valid until authenticated by the manual signature of
the Trustee, and the Trustee's signature shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in EXHIBIT A. The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or any of its Affiliates.
The Trustee shall authenticate Notes for original issue in the aggregate
principal amount of $150,000,000 upon receipt of a written order of the Company
in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of Notes to be authenticated and the date on which the Notes
are to be authenticated. The aggregate principal amount of Notes outstanding at
any time may not exceed $150,000,000, except as provided in Section 2.07. Upon
receipt of a written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Notes in substitution of Notes
originally issued to reflect any name change of the Company.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (the "REGISTRAR") where
Notes may be presented for registration of transfer or for exchange and an
office or agency (the "PAYING AGENT") where Notes may be presented for payment.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change the Paying Agent, Registrar or co-
registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this
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Indenture. The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, and such agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture that
relate to such Agent.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes. If the
Company fails to appoint or maintain a Registrar and/or Paying Agent, the
Trustee shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the Holders' benefit or
the Trustee all money the Paying Agent holds for the redemption or purchase of
the Notes or for the payment of principal of, or premium, if any, or interest
on, the Notes, and will notify the Trustee of any default by the Company in
providing the Paying Agent with sufficient funds to redeem or purchase Notes or
make any payment on the Notes as and to the extent required to be redeemed,
purchased or paid under the terms of this Indenture. While any such default
continues, the Trustee may require the Paying Agent to pay all money it holds to
the Trustee. The Company at any time may require the Paying Agent to pay all
money it holds to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or any of its Affiliates) shall have no further
liability for the money it delivered to the Trustee. If the Company or any of
its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the Holders' benefit all money it holds as Paying Agent.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, at least
fifteen Business Days before each interest payment date and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require that sets forth the names and addresses
of, and the aggregate principal amount of Notes held by, each Holder, and the
Company shall otherwise comply with Section 312(a) of the TIA.
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SECTION 2.06. Transfer and Exchange.
When Notes are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of
Notes of other denominations, the Registrar shall register the transfer or make
the exchange if its requirements for such transaction are met; PROVIDED,
HOWEVER, that any Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar and the Trustee duly executed by
the Holder of such Note or by its attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall Issue (and
the Subsidiary Guarantors shall execute the Subsidiary Guarantee endorsed
thereon), and the Trustee shall authenticate, Notes at the Registrar's request.
The Trustee shall notify the Company of all such registered transfers and
exchanges.
Neither the Company nor the Registrar shall be required to issue, register
the transfer of or exchange any Note (i) during a period beginning at the
opening of business on the day that the Trustee receives notice of any
redemption from the Company and ending at the close of business on the day the
notice of redemption is sent to Holders, (ii) selected for redemption, in whole
or in part, except the unredeemed portion of any Note being redeemed in part may
be transferred or exchanged, and (iii) during a Change of Control Offer or an
Asset Sale Offer if such Note is tendered pursuant to such Change of Control
Offer or Asset Sale Offer and not withdrawn.
No service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchange pursuant to
Section 2.10, 3.07 or 9.05, which the Company shall pay).
Prior to due presentment for registration of transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing on such Note made by anyone other than the Company, the Registrar or any
co-registrar) for the purpose of receiving payment of principal of, and premium,
if any, and interest on, such Note and for all other purposes, and notice to the
contrary shall not affect the Trustee, any Agent or the Company.
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SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or if the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee shall, upon receipt
of a written order signed by two Officers of the Company, authenticate a
replacement Note if the Trustee's requirements are met, and each such
replacement Note shall be an additional obligation of the Company. If the
Trustee or the Company requires, the Holder must supply an indemnity bond that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for its reasonable expenses in replacing a Note.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes the Trustee has
authenticated except those it has cancelled, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding. If a
Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that a BONA FIDE purchaser holds
the replaced Note. If the entire principal of, and premium, if any, and accrued
interest on, any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue. Subject to Section 2.09, a
Note does not cease to be outstanding because the Company or any Affiliate of
the Company holds such Note.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company shall be considered as though they are
not outstanding; PROVIDED, HOWEVER, that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that the Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Notes that the Company or any Affiliate of the
Company offers to purchase or acquires pursuant to an exchange offer, tender
offer or otherwise shall not be deemed to be owned by the Company or any
Affiliate of the Company until legal title to such Notes passes to the Company
or such Affiliate, as the case may be.
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SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee, upon receipt of a written order
signed by two Officers of the Company, shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar, any co-registrar, the Paying Agent, the Company and its
Subsidiaries shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange, replacement, payment (including all Notes
called for redemption and all Notes accepted for payment pursuant to an Offer)
or cancellation, and the Trustee shall cancel all such Notes and shall destroy
all cancelled Notes (subject to the record retention requirements of the
Exchange Act) and deliver a certificate of their destruction to the Company
unless, by written order signed by two Officers of the Company, the Company
shall direct that cancelled Notes be returned to it. The Company may not issue
new Notes to replace any Notes that have been cancelled by the Trustee or that
have been delivered to the Trustee for cancellation. If the Company or any
Affiliate of the Company acquires any Notes (other than by redemption pursuant
to Section 3.01 or an Offer pursuant to Section 4.13 or 4.14), such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until such Notes are delivered to the
Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to Holders on a subsequent special record
date, in each case at the rate provided in the Notes and Section 4.01. The
Company shall, with the Trustee's consent, fix or cause to be fixed each such
special record date and payment date. At least 15 days before the special
record date, the Company (or, at the request of the Company, the Trustee in the
name of, and at the expense of, the Company) shall mail a notice that states the
special record date, the related payment date and the amount of interest to be
paid.
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SECTION 2.13. Record Date
The record date for purposes of determining the identity of holders of
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in Section
316(c) of the TIA.
SECTION 2.14. CUSIP Number.
A "CUSIP" number will be printed on the Notes, and the Trustee shall use
the CUSIP number in notices of redemption, purchase or exchange as a convenience
to Holders; PROVIDED that any such notice may state that no representation is
made as to the correctness or accuracy of the CUSIP number printed in the notice
or on the Notes and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company will promptly notify the Trustee of
any change in the CUSIP number.
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Redemption Provisions.
(a) The Notes will be subject to a special redemption (the "SPECIAL
REDEMPTION") on, or at any time prior to, the Special Redemption Date at a
redemption price of 101% of the principal amount of the Notes, plus accrued and
unpaid interest to the date of redemption (the "SPECIAL REDEMPTION PRICE"), if
the Phipps Acquisition is not consummated prior to the Special Redemption Date
or if it appears, in the sole judgment of the Company, that the Phipps
Acquisition will not be consummated on or prior to the Special Redemption Date.
(b) Except as set forth in subsection 3.01(a) above and as described
below, the Notes are not redeemable at the Company's option prior to ,
2001. Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below, plus accrued and unpaid
interest to the date of redemption, if redeemed during the twelve-month period
beginning on February 15, of the years indicated below.
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Year Percentage
---- ----------
2001. . . . . . . . . . . . . . . . . . . . . . . . . %
2002. . . . . . . . . . . . . . . . . . . . . . . . . %
2003. . . . . . . . . . . . . . . . . . . . . . . . . %
2004 and thereafter . . . . . . . . . . . . . . . . . %
Notwithstanding the foregoing, at any time prior to , 1999, the
Company, at its option, may redeem the Notes, in part, with the net proceeds of
one or more Public Equity Offerings, at a redemption price equal to % of
the principal amount thereof, together with accrued and unpaid interest to the
date of redemption; PROVIDED, HOWEVER, that at least $97.5 in the aggregate
principal amount of the Notes remains outstanding immediately after any such
redemption.
SECTION 3.02. Notice to Trustee.
If the Company elects or is required to redeem Notes pursuant to Section
3.01(a) or elects to redeem Notes pursuant to Section 3.01(b), it shall furnish
to the Trustee, (i) at least 2 Business Days before notice of any Special
Redemption is to be mailed to Holders or (ii) at least 30 but not more than 60
days before notice of any other redemption is to be mailed to Holders, an
Officers Certificate stating that the Company has elected to redeem Notes
pursuant to Section 3.01(a) or Section 3.01(b), as the case may be, the date
notice of redemption is to be mailed to Holders, the redemption date, the
aggregate principal amount of Notes to be redeemed, the redemption price for
such Notes, the amount of accrued and unpaid interest on such Notes as of the
redemption date and, if applicable, the manner in which Notes are to be selected
for redemption if less than all outstanding Notes are to be redeemed. If the
Trustee is not the Registrar, the Company shall, concurrently with delivery of
its notice to the Trustee of a redemption, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, and the aggregate principal amount of Notes held by each Holder.
If the Company is required to offer to purchase Notes pursuant to Section
4.13 or 4.14, it shall furnish to the Trustee, at least two Business Days before
notice of the corresponding Offer is to be mailed to Holders, an Officers
Certificate setting forth that the Offer is being made pursuant to Section 4.13
or 4.14, as the case may be, the Purchase Date, the maximum principal amount of
Notes the Company is offering to purchase pursuant to such Offer, the purchase
price for such Notes, and the amount of accrued and unpaid interest on such
Notes as of the Purchase Date.
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The Company will also provide the Trustee with any additional information
that the Trustee reasonably requests in connection with any redemption or Offer.
SECTION 3.03. Selection of Notes to be Redeemed or Purchased.
If less than all outstanding Notes are to be redeemed or if less than all
Notes tendered pursuant to an Offer are to be accepted for payment, the Company
shall select the outstanding Notes to be redeemed or accepted for payment in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not listed on such an
exchange, on a PRO RATA basis, by lot or by any other method that the Trustee
deems fair and appropriate; PROVIDED that a redemption pursuant to the
provisions relating to Public Equity Offerings will be on a PRO RATA basis.
Notes redeemed or accepted for payment in part shall only be purchased in
integral multiples of $1,000. If the Company elects to mail notice of a
redemption to Holders, the Trustee shall at least five days prior to the date
notice of redemption is to be mailed, (i) select the Notes to be redeemed from
Notes outstanding not previously called for redemption, and (ii) notify the
Company of the names of each Holder of Notes selected for redemption, the
principal amount of Notes held by each such Holder and the principal amount of
such Holder's Notes that are to be redeemed. If less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee shall select on
or prior to the Purchase Date for such Offer the Notes to be accepted for
payment. The Trustee shall select for redemption or purchase Notes or portions
of Notes in principal amounts of $1,000 or integral multiples of $1,000; except
that if all of the Notes of a Holder are selected for redemption or purchase,
the aggregate principal amount of the Notes held by such Holder, even if not a
multiple of $1,000, may be redeemed or purchased. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or tendered pursuant to an Offer also apply to portions of Notes
called for redemption or tendered pursuant to an Offer. The Trustee shall
notify the Company promptly of the Notes or portions of Notes to be called for
redemption or selected for purchase.
SECTION 3.04. Notice of Redemption.
(a) At least (i) 5 Business Days before the date of any Special Redemption
or (ii) 30 days but not more than 60 days before any other redemption date, the
Company shall mail by first class mail a notice of redemption to each Holder of
Notes that are to be redeemed. With respect to any redemption of Notes, the
notice shall identify the Notes or portions thereof, if applicable, to be
redeemed and shall state: (1) the redemption date; (2) the redemption price for
the Notes and the amount of unpaid and accrued interest on such Notes as of the
date of redemption; (3) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed; (4) if any Note is being redeemed in
part, the portion of the principal
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amount of such Note to be redeemed and that, after the redemption date, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued; (5) the name and address of the Paying Agent;
(6) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price for, and any accrued and unpaid interest on, such
Notes; (7) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date; and (8) that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice and printed on the Notes.
(b) At the Company's request, the Trustee shall (at the Company's expense)
give the notice of any redemption to Holders; PROVIDED, HOWEVER, that the
Company shall deliver to the Trustee, at least 45 days prior to the date of
redemption and at least 10 days prior to the date that notice of the redemption
is to be mailed to Holders, an Officers Certificate that (i) requests the
Trustee to give notice of the redemption to Holders, (ii) sets forth the
information to be provided to Holders in the notice of redemption, as set forth
in the preceding paragraph, and (iii) sets forth the aggregate principal amount
of Notes to be redeemed and the amount of accrued and unpaid interest thereon as
of the redemption date. If the Trustee is not a Registrar, the Company shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, the address of, and the aggregate principal amount of Notes held by, each
Holder; PROVIDED FURTHER that any such Officers Certificate may be delivered to
the Trustee on a date later than permitted under this Section 3.03(b) if such
later date is acceptable to the Trustee.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the redemption date at the price set forth in the Note.
SECTION 3.06. Deposit of Redemption Price.
(a) On or prior to any redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of, and accrued interest on, all Notes to be redeemed on that date. After any
redemption date, the Trustee or the Paying Agent shall promptly return to the
Company any money that the Company deposited with the Trustee or the Paying
Agent in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
(b) If the Company complies with the preceding paragraph, interest on the
Notes to be redeemed will cease to accrue on such Notes on the applicable
redemption date,
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whether or not such Notes are presented for payment. If a Note is redeemed on
or after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business of such record date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, premium, if any, and
interest from the redemption date until such principal, premium and interest is
paid, at the rate of interest provided in the Notes and Section 4.01.
SECTION 3.07. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the Company's expense a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium, and Interest.
Subject to the provisions of Article X, the Company shall pay the principal
of, and premium, if any, and interest on, the Notes on the dates and in the
manner provided in the Notes. Holders must surrender their Notes to the Paying
Agent to collect principal payments. Principal, premium, or interest shall be
considered paid on the date due if, by 11 a.m. Eastern Standard Time on such
date, the Company has deposited with the Paying Agent money in immediately
available funds designated for and sufficient to pay such principal, premium or
interest; PROVIDED, HOWEVER, that principal, premium or interest shall not be
considered paid within the meaning of this Section 4.01 if money intended to pay
such principal, premium or interest is held by the Paying Agent for the benefit
of holders of Senior Debt of the Company pursuant to the provisions of Article
X. The Paying Agent shall return to the Company, no later than five days
following the date of payment, any money (including accrued interest) that
exceeds the amount then due and payable on the Notes.
To the extent lawful, the Company shall pay interest (including Post-
Petition Interest) on overdue principal, premium and interest (without regard to
any applicable grace period) at a rate equal to 2% per annum in excess of the
then applicable interest rate on the Notes, compounded semiannually.
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SECTION 4.02. Reports.
Whether or not the Company is then subject to Section 13(a) or 15(d) of the
Exchange Act, the Company will file with the Commission, so long as any Notes
are outstanding, the annual reports, quarterly reports and other periodic
reports which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) if the Company were so subject, and such
documents shall 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. The Company will also in
any event (i) within 15 days of each Required Filing Date, (a) transmit by mail
to all holders of Notes, as their names and addresses appear in the Note
register, without cost to such holders and (b) file with the Trustee copies of
the annual reports, quarterly reports and other periodic reports which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (ii) if filing such documents by the Company with the Commission is
prohibited under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost.
SECTION 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 135 days after the end of
each fiscal year of the Company, an Officers Certificate stating that (i) a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made to determine whether the Company has kept,
observed, performed and fulfilled all of its obligations under this Indenture
and the Notes, (ii) such review was supervised by the Officers of the Company
signing such certificate, and (iii) that to the best knowledge of each Officer
signing such certificate, (a) the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default occurred,
describing all such Defaults or Events of Default of which each such Officer may
have knowledge and what action the Company has taken or proposes to take with
respect thereto), and (b) no event has occurred and remains in existence by
reason of which payments on account of the principal of, or premium, if any, or
interest on, the Notes are prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the annual financial statements
delivered pursuant to
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Section 4.02 shall be accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements nothing has
come to their attention that would lead them to believe that the Company has
violated any provisions of Sections 4.01, 4.05, 4.07, 4.08, 4.09, 4.11, 4.13,
4.14, 4.15, 4.16, 4.17, 4.18, 4.20 or Article V or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
The Company will, so long as any of the Notes are outstanding, deliver to
the Trustee, promptly after any Officer of the Company becomes aware of any
Default or Event of Default, an Officers Certificate specifying such Default,
Event of Default or default or event of default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.04. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the covenants
or the performance of its obligations under this Indenture and Notes; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power granted to
the Trustee pursuant to this Indenture, but will suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.05. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment, unless at the time of and
immediately after giving effect to the proposed Restricted Payment (with the
value of any such Restricted Payment, if other than cash, to be determined by
the Board of Directors of the Company, whose determination shall be conclusive
and evidenced by a board resolution), (i) no Default or Event of Default (and no
event that, after notice or lapse of time, or both, would become an "event of
default" under the terms of any Indebtedness of the Company or its Subsidiaries)
shall have occurred and be continuing or would occur as a consequence thereof,
(ii) the Company could incur at least $1.00 of additional Indebtedness pursuant
to the provisions of Section 4.07(a) and (iii) the aggregate amount of all
Restricted Payments made after the Issue Date shall not exceed the sum of (a) an
amount equal to the Company's Cumulative Operating Cash Flow
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less 1.4 times the Company's Cumulative Consolidated Interest Expense, plus (b)
the aggregate amount of all net cash proceeds received after the Issue Date by
the Company (but excluding the net cash proceeds received by the Company from
the Concurrent Offering) from the issuance and sale (other than to a Subsidiary
of the Company) of Capital Stock of the Company (other than Disqualified Stock)
to the extent that such proceeds are not used to redeem, repurchase, retire or
otherwise acquire Capital Stock or any Indebtedness of the Company or any
Subsidiary pursuant to clause (ii) of Section 4.05(b), PLUS (c) in the case of
the disposition or repayment of any Investment for cash, which Investment
constituted a Restricted Payment made after the Issue Date, an amount equal to
the lesser of the return of capital with respect to such Investment and the cost
of such Investment, in either case, reduced (but not below zero) by the excess,
if any, of the cost of the disposition of such Investment over the gain, if any,
realized by the Company or such Subsidiary in respect of such disposition.
(b) The provisions of Section 4.05(a) will not prohibit, so long as there
is no Default or Event of Default continuing, the following actions
(collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such payment would have
been permitted under this Indenture, and such payment shall be deemed to
have been paid on such date of declaration for purposes of clause (iii) of
Section 4.05(a); and
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any Capital Stock or any Indebtedness of the Company in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of Capital Stock of the Company
(other than any Disqualified Stock);
(iii) the repurchase, redemption or other repayment of any Subordinated
Debt of the Company or a Subsidiary Guarantor in exchange for, by
conversion into or solely out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of Subordinated
Debt of the Company or such Subsidiary Guarantor with a Weighted Average
Life to Maturity equal to or greater than the then remaining Weighted
Average Life to Maturity of the Subordinated Debt repurchased, redeemed or
repaid;
(iv) the payment of ordinary dividends by the Company in respect of
its Capital Stock in the ordinary course of business on a basis consistent
with past practice in an aggregate amount not exceeding $1.0 million; and
(v) Restricted Investments received as consideration in connection
with an Asset Sale made in compliance with the Indenture.
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SECTION 4.06. Corporate Existence.
Subject to Section 4.14 and Article V, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each of
its Subsidiaries in accordance with the respective organizational documents of
each of its Subsidiaries and the rights (charter and statutory), licenses and
franchises of the Company and each of its Subsidiaries; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Subsidiary,
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 its
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.07. Limitation on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for ("incur") any Indebtedness (including
Acquired Debt) if, at the time of and immediately after giving pro forma effect
to such incurrence, the Debt to Operating Cash Flow Ratio of the Company and its
Subsidiaries is (i) more than 7.0:1.0 if the Indebtedness is incurred prior to
__________, 1998 or (ii) more than 6.5:1.0 if the Indebtedness is incurred on or
after __________, 1998.
(b) Section 4.07(a) will not apply to the incurrence of any of the
following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company incurred under the Senior Credit
Facility in an aggregate principal amount at any time outstanding not to
exceed $30.0 million less (A) the aggregate amount of all principal
payments made in respect of any term loans thereunder and (B) the aggregate
amount of any other principal payments thereunder constituting permanent
reductions of such Indebtedness pursuant to and in accordance with the
covenant described under Section 4.14;
(ii) Indebtedness of any Subsidiary Guarantor consisting of a
guarantee of Indebtedness of the Company under the Senior Credit Facility;
(iii) Indebtedness of the Company represented by the Notes and
Indebtedness of any Subsidiary Guarantor represented by a Subsidiary
Guarantee;
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(iv) Indebtedness owed by any Subsidiary Guarantor to the Company or
to another Subsidiary Guarantor, or owed by the Company to any Subsidiary
Guarantor; PROVIDED that any such Indebtedness shall be at all times held
by a Person which is either the Company or a Subsidiary Guarantor; and
PROVIDED, FURTHER that an incurrence of additional Indebtedness the
incurrence of which is not permitted under this Section 4.07(b)(iv) shall
be deemed to have occurred upon either (a) the transfer or other
disposition of any such Indebtedness to a Person other than the Company or
another Subsidiary Guarantor or (b) the sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of any such Subsidiary Guarantor to a Person other than the Company
or another Subsidiary Guarantor, such that such Subsidiary Guarantor ceases
to be a Subsidiary Guarantor;
(v) Indebtedness of any Subsidiary Guarantor consisting of guarantees
of any Indebtedness of the Company which Indebtedness of the Company has
been incurred in accordance with the provisions of the Indenture;
(vi) Indebtedness arising with respect to Interest Rate Agreement
Obligations incurred for the purpose of fixing or hedging interest rate
risk with respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding; PROVIDED, HOWEVER, that the
notional principal amount of such Interest Rate Agreement Obligation does
not exceed the principal amount of the Indebtedness to which such Interest
Rate Agreement Obligation relates;
(vii) any Indebtedness of the Company or a Subsidiary of the Company
incurred in connection with or given in exchange for the renewal,
extension, substitution, refunding, defeasance, refinancing or replacement
of any Indebtedness of the Company or such Subsidiary permitted to be
incurred or outstanding under the Indenture other than Indebtedness
described in clauses (i), (ii), (iv), (v), (vi) and (viii) of this Section
4.07(b) ("Refinancing Indebtedness"); PROVIDED that (a) the principal
amount of such Refinancing Indebtedness shall not exceed the principal
amount of the Indebtedness so renewed, extended, substituted, refunded,
defeased, refinanced or replaced (plus the premiums paid in connection
therewith (which shall not exceed the stated amount of any premium or other
payment required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being renewed, extended, substituted,
refunded, defeased, refinanced or replaced) and the expenses incurred in
connection therewith); (b) with respect to Refinancing Indebtedness of any
Indebtedness other than Senior Debt, the Refinancing Indebtedness shall
have a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being renewed,
extended, substituted, refunded, defeased, refinanced or replaced; and (c)
with respect to Refinancing Indebtedness of Indebtedness other than Senior
Debt incurred by (1) the Company, such Refinancing Indebtedness shall rank
no more senior, and shall be at least
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as subordinated, in right of payment to the Notes as the Indebtedness being
renewed, extended, substituted, refunded, defeased, refinanced or replaced,
and (2) a Subsidiary Guarantor, such Refinancing Indebtedness shall rank no
more senior, and shall be at least as subordinated, in right of payment to
the Subsidiary Guarantee as the Indebtedness being renewed, extended,
substituted, refunded, defeased, refinanced or replaced;
(viii) Indebtedness of the Company and its Subsidiaries in addition to
that described in clauses (i) through (vii) above, and any renewals,
extensions, substitutions, refinancings or replacements of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (viii) does not exceed
$15,000,000 at any one time outstanding.
SECTION 4.08. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Company or any beneficial owner of ten percent or more of any class of capital
stock of the Company or any Subsidiary Guarantor unless (i) such transaction or
series of transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available in a comparable
transaction in arm's-length dealings with an unrelated third party, and (ii) (a)
with respect to any transaction or series of transactions involving aggregate
payments in excess of $1,000,000, the Company delivers an Officers Certificate
to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and such transaction or series of
related transactions has been approved by a majority of the members of the Board
of Directors of the Company (and approved by a majority of the Independent
Directors or, in the event there is only one Independent Director, by such
Independent Director), and (b) with respect to any transaction or series of
transactions involving aggregate payments in excess of $5,000,000, the Company
delivers to the Trustee an opinion to the effect that such transaction or series
of transactions is fair to the Company or such Subsidiary from a financial point
of view issued by an investment banking firm of national standing.
Notwithstanding the foregoing, this provision will not apply to (i) employment
agreements or compensation or employee benefit arrangements with any officer,
director or employee of the Company entered into in the ordinary course of
business (including customary benefits thereunder), (ii) any transaction entered
into by or among the Company or any Subsidiary Guarantor and one or more
Subsidiary Guarantors, and (iii) transactions pursuant to agreements existing on
the Issue Date.
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SECTION 4.09. Limitation on Liens.
The Company will not, and will not permit any Subsidiary Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien (other
than Permitted Liens) on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom to secure any Indebtedness; PROVIDED that in addition to creating
Permitted Liens on its properties or assets, (i) the Company may create any Lien
upon any of its properties or assets (including, but not limited to, any Capital
Stock of its Subsidiaries) if the Notes are equally and ratably secured
therewith, and (ii) a Subsidiary Guarantor may create any Lien upon any of its
properties or assets (including, but not limited to, any Capital Stock of its
Subsidiaries) if its Subsidiary Guarantee is equally and ratably secured
therewith; PROVIDED, HOWEVER, that if (a) the Company creates any Lien on its
assets to secure any Subordinated Indebtedness of the Company, the Lien securing
such Subordinated Indebtedness shall be subordinated and junior to the Lien
securing the Notes with the same or lesser priorities as the Subordinated
Indebtedness shall have with respect to the Notes, and (b) a Subsidiary
Guarantor creates any Lien on its assets to secure any Subordinated Indebtedness
of such Subsidiary Guarantor, the Lien securing such Subordinated Indebtedness
shall be subordinated and junior to the Lien securing the Subsidiary Guarantee
of such Subsidiary Guarantor with the same or lesser priorities as the
Subordinated Indebtedness shall have with respect to the Subordinated Guarantee
of such Subsidiary Guarantor.
SECTION 4.10. Taxes.
The Company shall, and shall cause each of its Subsidiaries to, pay prior
to delinquency all taxes, assessments and governmental levies the failure of
which to pay could reasonably be expected to result in a material adverse effect
on the condition (financial or otherwise), business or results of operations of
the Company and its Subsidiaries taken as a whole, except for those taxes
contested in good faith by appropriate proceedings.
SECTION 4.11. Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (i)
pay dividends or make any other distributions to the Company or any other
Subsidiary of the Company on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any other Subsidiary of the Company, (ii)
make loans or advances to the
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Company or any other Subsidiary of the Company, or (iii) transfer any of its
properties or assets to the Company or any other Subsidiary of the Company
(collectively, "PAYMENT RESTRICTIONS"), except for such encumbrances or
restrictions existing under or by reason of (a) the Senior Credit Facility as in
effect on the Issue Date, and any amendments, restatements, renewals,
replacements or refinancings thereof; PROVIDED that such amendments,
restatements, renewals, replacement or refinancings are no more restrictive in
the aggregate with respect to such dividend and other payment restrictions than
those contained in the Senior Credit Facility immediately prior to any such
amendment, restatement, renewal, replacement or refinancing, (b) applicable law,
(c) any instrument governing Indebtedness or Capital Stock of an Acquired Person
acquired by the Company or any of its Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness was incurred in
connection with such acquisition); PROVIDED that such restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Acquired Person, (d) customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past practices, (e)
Purchase Money Indebtedness for property acquired in the ordinary course of
business that only impose restrictions on the property so acquired, (f) an
agreement for the sale or disposition of the Capital Stock or assets of such
Subsidiary; PROVIDED that such restriction is only applicable to such Subsidiary
or assets, as applicable, and such sale or disposition otherwise is permitted
under the covenant described under Section 4.14; and PROVIDED, FURTHER, that
such restriction or encumbrance shall be effective only for a period from the
execution and delivery of such agreement through a termination date not later
than 270 days after such execution and delivery, and (g) Refinancing
Indebtedness permitted under this Indenture; PROVIDED that the restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive in the aggregate than those contained in the agreements governing
the Indebtedness being refinanced immediately prior to such refinancing.
SECTION 4.12. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or an agency (which may be an office of any Agent) where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
any change in the location of such office or agency. If at any time the Company
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.
The Company may also from time to time designate one or more other offices
or agencies where the Notes 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
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or rescission shall in any matter relieve the Company of its obligations to
maintain an office or agency in the Borough of Manhattan, the City of 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.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.13. Change of Control.
(a) In the event of a Change of Control, Company will make an offer to
purchase all of the then outstanding Notes at a purchase price in cash equal to
101% of the aggregate principal amount thereof, plus accrued and unpaid interest
to the date of purchase, in accordance with the terms set forth below (a "CHANGE
OF CONTROL OFFER").
(b) Within 30 days following the occurrence of any Change of Control, the
Company shall mail to each holder of Notes at such holder's registered address a
notice stating: (i) that a Change of Control has occurred and that such holder
has the right to require the Company to repurchase all or a portion (equal to
$1,000 or an integral multiple thereof) of such holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest to the date of purchase (the "CHANGE OF CONTROL
PURCHASE DATE"), which shall be a Business Day, specified in such notice, that
is not earlier than 30 days or later than 60 days from the date such notice is
mailed, (ii) the amount of accrued and unpaid interest as of the Change of
Control Purchase Date, (iii) that any Note not tendered will continue to accrue
interest, (iv) that, unless the Company defaults in the payment of the purchase
price for the Notes payable pursuant to the Change of Control Offer, any Notes
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date, (v) that Holders
electing to tender any Note or portion thereof will be required to surrender
their Note, with a form entitled "Option of Holder to Elect Purchase" completed,
to the Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Change of Control Purchase Date;
PROVIDED that Holders electing to tender only a portion of any Note must tender
a principal amount of $1,000 or integral multiples thereof; (vi) that Holders
will be entitled to withdraw their election to tender Notes if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Note purchased; and (vii) that Holders
whose Notes are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes
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surrendered; PROVIDED that only Notes in a principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part.
(c) On the Change of Control Purchase Date, the Company will (i) accept
for payment all Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the paying agent the aggregate purchase price
of all Notes or portions thereof accepted for payment and any accrued and unpaid
interest on such Notes as of the Change of Control Purchase Date, and
(iii) deliver or cause to be delivered to the Trustee all Notes tendered
pursuant to the Change of Control Offer. The paying agent shall promptly mail
to each holder of Notes or portions thereof accepted for payment an amount equal
to the purchase price for such Notes plus any accrued and unpaid interest
thereon, and the Trustee shall promptly authenticate and mail to such holder of
Notes accepted for payment in part a new Note equal in principal amount to any
unpurchased portion of the Notes, and any Note not accepted for payment in whole
or in part for any reason consistent with the Indenture shall be promptly
returned to the holder of such Note. On and after a Change of Control Purchase
Date, interest will cease to accrue on the Notes or portions thereof accepted
for payment, unless the Company defaults in the payment of the purchase price
therefor. The Company will announce the results of the Change of Control Offer
to holders of the Notes on or as soon as practicable after the Change of Control
Purchase Date.
(d) The Company will comply with the applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act, and all other
applicable securities laws and regulations in connection with any Change of
Control Offer.
SECTION 4.14. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its Subsidiaries to,
make any Asset Sale unless (i) the Company or such Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least equal to the
fair market value (determined by the Board of Directors of the Company in good
faith, which determination shall be evidenced by a board resolution) of the
assets or other property sold or disposed of in the Asset Sale, and (ii) at
least 75% of such consideration is in the form of cash or Cash Equivalents;
PROVIDED that for purposes of this covenant "cash" shall include the amount of
any liabilities (other than liabilities that are by their terms subordinated to
the Notes or any Subsidiary Guarantee) of the Company or such Subsidiary (as
shown on the Company's or such Subsidiary's most recent balance sheet or in the
notes thereto) that are assumed by the transferee of any such assets or other
property in such Asset Sale (and excluding any liabilities that are incurred in
connection with or in anticipation of such Asset Sale), but only to the extent
that such assumption is effected on a basis under which there is no further
recourse to the Company or any of its Subsidiaries with respect to such
liabilities.
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Notwithstanding clause (ii) above, all or a portion of the consideration
for any such Asset Sale may consist of all or substantially all of the assets or
a majority of the Voting Stock of an existing television business, franchise or
station (whether existing as a separate entity, subsidiary, division, unit or
otherwise) or any business directly related thereto, if after giving effect to
any such Asset Sale and related acquisition of assets or Voting Stock, (x) no
Default or Event of Default shall have occurred or be continuing; and (y) the
Net Proceeds of any such Asset Sale, if any, are applied in accordance with this
covenant.
(b) Within 360 days after any Asset Sale, the Company may elect to apply
or cause to be applied the Net Proceeds from such Asset Sale to (i) permanently
reduce any Senior Debt of the Company or any Guarantor Senior Debt, and/or (ii)
make an investment in, or acquire assets directly related to the business of the
Company and its Subsidiaries existing on the Issue Date. Pending the final
application of any such Net Proceeds, the Company may temporarily reduce Senior
Debt of the Company or any Guarantor Senior Debt or temporarily invest such Net
Proceeds in any manner permitted by this Indenture. Any Net Proceeds from an
Asset Sale not applied or invested as provided in the first sentence of this
paragraph within 360 days of such Asset Sale will be deemed to constitute
"EXCESS PROCEEDS" on the 361st day after such Asset Sale.
(c) As soon as practical, but in no event later than 10 Business Days
after any date (an "ASSET SALE OFFER TRIGGER DATE") that the aggregate amount of
Excess Proceeds exceeds $5,000,000, the Company shall commence an offer to
purchase the maximum principal amount of Notes that may be purchased out of all
such Excess Proceeds (an "ASSET SALE OFFER") at a price in cash equal to 100% of
the principal amount thereof, plus accrued and unpaid interest to the date of
purchase. To the extent that any Excess Proceeds remain after completion of an
Asset Sale Offer, the Company may use the remaining amount for general corporate
purposes and such amount shall no longer constitute "Excess Proceeds."
(d) Within 30 days following any Asset Sale Offer Trigger Date, the
Company shall mail to each holder of Notes at such holder's registered address a
notice stating: (i) that an Asset Sale Offer Trigger Date has occurred and that
the Company is offering to purchase the maximum principal amount of Notes that
may be purchased out of the Excess Proceeds at an offer price in cash equal to
100% of the principal amount thereof, plus accrued and unpaid interest to the
date of purchase (the "ASSET SALE OFFER PURCHASE DATE"), which shall be a
Business Day, specified in such notice, that is not earlier than 30 days or
later than 60 days from the date such notice is mailed, (ii) the amount of
accrued and unpaid interest as of the Asset Sale Offer Purchase Date, (iii) that
any Note not tendered will continue to accrue interest, (iv) that, unless the
Company defaults in the payment of the purchase price for the Notes payable
pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date, (v) that Holders electing to tender any Note or portion thereof
will be required to surrender their Note,
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with a form entitled "Option of Holder to Elect Purchase" completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Asset Sale Offer Purchase Date;
PROVIDED that Holders electing to tender only a portion of any Note must tender
a principal amount of $1,000 or integral multiples thereof; (vi) that Holders
will be entitled to withdraw their election to tender Notes if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Asset Sale Offer Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Note purchased; and (vii) that Holders
whose Notes are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered; PROVIDED that
only Notes in a principal amount of $1,000 or integral multiples thereof will be
accepted for payment in part.
(e) On the Asset Sale Offer Purchase Date, the Company will (i) accept for
payment the maximum principal amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer than can be purchased out of Excess Proceeds
from such Asset Sale, (ii) deposit with the Paying Agent the aggregate purchase
price of all Notes or portions thereof accepted for payment and any accrued and
unpaid interest on such Notes as of the Asset Sale Offer Purchase Date, and
(iii) deliver or cause to be delivered to the Trustee all Notes tendered
pursuant to the Asset Sale Offer. If less than all Notes tendered pursuant to
the Asset Sale Offer are accepted for payment by the Company for any reason
consistent with the Indenture, selection of the Notes to be purchased by the
Company shall be in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a PRO RATA basis, by lot or by such method as the Trustee
shall deem fair and appropriate; PROVIDED that Notes accepted for payment in
part shall only be purchased in integral multiples of $1,000. The Paying Agent
shall promptly mail to each holder of Notes or portions thereof accepted for
payment an amount equal to the purchase price for such Notes plus any accrued
and unpaid interest thereon, and the Trustee shall promptly authenticate and
mail to such holder of Notes accepted for payment in part a new Note equal in
principal amount to any unpurchased portion of the Notes, and any Note not
accepted for payment in whole or in part shall be promptly returned to the
holder of such Note. On and after an Asset Sale Offer Purchase Date, interest
will cease to accrue on the Notes or portions thereof accepted for payment,
unless the Company defaults in the payment of the purchase price therefor. The
Company will announce the results of the Asset Sale Offer to holders of the
Notes on or as soon as practicable after the Asset Sale Offer Purchase Date.
(f) The Company will comply with the applicable tender offer rules,
including the requirements of Rule 14e-1 under the Exchange Act, and all other
applicable securities laws and regulations in connection with any Asset Sale
Offer.
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SECTION 4.15. Limitation on Incurrence of Senior Subordinated Indebtedness.
(a) The Company will not, directly or indirectly, incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinated or junior in right of payment to any Indebtedness of the Company
and senior in any respect in right of payment to the Notes, and (b) the Company
will not, directly or indirectly, permit any Subsidiary Guarantor to incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is subordinated or junior in right of payment to any Indebtedness of such
Subsidiary Guarantor and senior in any respect in right of payment to the
Subsidiary Guarantee of such Subsidiary Guarantee.
SECTION 4.16. Limitation on Issuance and Sale of
Capital Stock of Subsidiaries.
The Company (a) will not, and will not permit any Subsidiary of the Company
to, transfer, convey, sell or otherwise dispose of any shares of Capital Stock
of such Subsidiary or any other Subsidiary (other than to the Company or a
Subsidiary Guarantor) except that the Company and any Subsidiary may, in any
single transaction, sell all, but not less than all, of the issued and
outstanding Capital Stock of any subsidiary to any Person, subject to complying
with the provisions of the Indenture applicable to such sale and (b) will not
permit any Subsidiary of the Company to issue shares of its 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 Subsidiary Guarantor.
SECTION 4.17. Future Subsidiary Guarantors.
The Company shall cause each Subsidiary of the Company formed or acquired
after the date of this Indenture to execute and deliver an indenture
supplemental to this Indenture and thereby become a Subsidiary Guarantor which
shall be bound by the guarantee of the Notes in the form set forth in this
Indenture (without such Subsidiary Guarantor being required to execute and
deliver the guarantee endorsed on the Notes).
SECTION 4.18. Maintenance of Properties.
The Company will cause all properties used in the conduct of its business
or the business of any Subsidiary of the Company 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
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necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company advantageously conducted at all times;
PROVIDED HOWEVER, that nothing in this Section shall prevent the Company or any
Subsidiary of the Company from discontinuing the operation or maintenance of any
of such properties if such discontinuance is, as determined by the Board of
Directors of the Company in good faith, desirable in the conduct of the business
of the Company or of any of its Subsidiaries.
SECTION 4.19. Maintenance of Insurance.
The Company shall, and shall cause each of 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 usually is so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 4.20. Deposit of Trust Funds with Trustee
Pending Consummation of Phipps Acquisition.
(a) On the Issue Date, the Company shall deposit with the Trustee in the
account specified in subsection 4.20(b)(1) the net proceeds from the issuance of
the Notes (the "NET OFFERING PROCEEDS"), plus (2) such amount as, when added to
the Net Offering Proceeds, equals 101% of the aggregate principal amount of the
Notes, plus (3) an amount equal to the interest that would accrue on the Notes
from the Issue Date to the Special Redemption Date at an interest rate of [ ]%
per annum (such deposited amounts collectively, the "TRUST FUNDS").
(b) The Company shall deposit the Trust Funds into, and shall maintain
with the Trustee, an account (the "COLLATERAL ACCOUNT") designated "Bankers
Trust Company as Trustee," which account shall be under the sole dominion and
control of the Trustee. Amounts on deposit in the Collateral Account shall be
invested and reinvested from time to time in cash equivalents which shall be
held in the Collateral Account. Any income, including any interest or capital
gains received with respect to the balance from time to time standing to the
credit of the Collateral Account, shall remain, or be deposited, in the
Collateral Account. Subject to Article VII hereof, the Trustee, solely in its
individual capacity, hereby waives any rights it may have in such individual
capacity to the Collateral Account and all rights and interest therein,
including, without limitation, any such rights arising through counterclaim,
defense, recoupment, charge, lien or right of set-off.
(c) In order to secure the full and punctual payment and performance of
the Company's obligation to redeem the Notes upon a Special Redemption, if any,
the Company
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hereby grants to the Trustee, for the benefit of the Holders, a continuing
security interest in and to the Trust Funds, whether now owned or existing or
hereafter acquired or arising.
(d) The Trustee shall hold the Trust Funds, for the benefit of the
Holders, until the earlier to occur of (A) receipt by the Trustee of (x) an
Officers' Certificate stating (1) that the Phipps Acquisition is to be
consummated on a date specified therein, which shall be at least 2 Business Days
after the date of such Officers' Certificate and on or before the Special
Redemption Date, (2) that such consummation will be, in all material respects,
in accordance with the terms and conditions described in the Final Prospectus,
and (3) requesting the Trustee to release the Trust Funds to the order of the
Company for application to the concurrent consummation of the Phipps Acquisition
and (y) an Opinion of Counsel to the effect that all conditions precedent
described in the preceding clause (x) have been satisfied or (B) receipt by the
Trustee of notice from the Company, in accordance with Section 3.02 hereof, to
effect a Special Redemption of the Notes.
(e) Upon notice from the Company to the Trustee pursuant to
subsection (d)(A) above, the security interests in the Collateral shall
terminate as of the closing date of the Phipps Acquisition and the Trust Funds
shall be released as of the such closing date in immediately available funds to
the order of the Company; and upon notice from the Company to the Trustee
pursuant to subsection (d)(B) above, the Trustee shall apply the Trust Funds to
fund the Special Redemption.
(f) The Trustee shall pay any investment income received on the Trust
Funds to the Company following release of the Trust Funds pursuant to subsection
(d) above. If a Special Redemption occurs prior to the Special Redemption Date
any amounts in the Collateral Account not required to be used for such Special
Redemption shall be returned to the Company.
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company shall not consolidate or merge with or into (whether or
not the Company is the Surviving Person), or, directly or indirectly through one
or more Subsidiaries, sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets in one or more related
transactions, to another Person unless (i) the Surviving Person is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the Surviving Person (if other than the Company)
assumes all the obligations of the Company under this Indenture and the Notes
pursuant to a
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supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
at the time of and immediately after such Disposition, no Default or Event of
Default shall have occurred and be continuing; and (iv) the Surviving Person
will (A) have Consolidated Net Worth (immediately giving effect to the
Disposition on a pro forma basis) equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction, and (B) at the time
of such Disposition and after giving pro forma effect thereto, the Surviving
Person would be permitted to issue at least $1.00 of additional Indebtedness
pursuant to Section 4.07(a).
(b) Prior to the consummation of any proposed Disposition, merger or
consolidation of the Company or a Subsidiary Guarantor or the sale of all or
substantially all of the assets of the Company or a Subsidiary Guarantor, the
Company shall deliver to the Trustee an Officers Certificate stating that such
transaction complies with Articles V or XI of this Indenture, as the case may
be, and an Opinion of Counsel stating that such transaction and the supplemental
indenture, if required, comply with Articles V or XI of this Indenture, as the
case may be.
SECTION 5.02. Surviving Person Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01(a) or Section 11.01(e) in
which the Company or the Subsidiary Guarantor, as the case may be, is not the
Surviving Person and the Surviving Person is to assume all the obligations of
the Company or the Subsidiary Guarantor under the Notes, the Subsidiary
Guarantee, as applicable, and this Indenture pursuant to a supplemental
indenture, such Surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or the Subsidiary Guarantor,
and the Company or the Subsidiary Guarantor would be discharged from its
obligations under this Indenture, the Notes or its Subsidiary Guarantee, as the
case may be, PROVIDED that solely for the purpose of calculating amounts
described in clause (iii) of Section 4.05(a), any such Surviving Person shall
only be deemed to have succeeded to and be substituted for the Company with
respect to the period subsequent to the effective time of such transaction (and
the Company (before giving effect to such transaction) shall be deemed to be the
"Company" for such purposes for all prior periods).
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) Each of the following constitutes an "EVENT OF DEFAULT":
(i) a default for 30 days in the payment when due of interest on any
Note (whether or not prohibited by the subordination provisions of this
Indenture);
(ii) a default in the payment when due of principal on any Note
(whether or not prohibited by the subordination provisions of this
Indenture), whether upon maturity, acceleration, optional or mandatory
redemption, required repurchase or otherwise;
(iii) failure to perform or comply with any covenant, agreement or
warranty in this Indenture (other than the defaults specified in clauses
(i) and (ii) above) which failure continues for 30 days after written
notice thereof has been given to the Company by the Trustee or to the
Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the then outstanding Notes;
(iv) the occurrence of one or more defaults under any agreements,
indentures or instruments under which the Company or any Subsidiary of the
Company then has outstanding Indebtedness in excess of $5,000,000 in the
aggregate and, if not already matured at its final maturity in accordance
with its terms, such Indebtedness shall have been accelerated;
(v) except as permitted by this Indenture, any Subsidiary Guarantee
shall for any reason cease to be, or be asserted in writing by any
Subsidiary Guarantor or the Company not to be, in full force and effect,
and enforceable in accordance with its terms;
(vi) one or more judgments, orders or decrees for the payment of money
in excess of $5,000,000, either individually or in the aggregate shall be
entered against the Company or any Subsidiary of the Company or any of
their respective properties and which judgments, orders or decrees are not
paid, discharged, bonded or stayed for a period of 60 days after their
entry;
(vii) any holder or holders of at least $5,000,000 in aggregate
principal amount of Indebtedness of the Company, any Subsidiary of the
Company after a default under such Indebtedness (a) shall notify the
Company or the Trustee of the intended sale
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or disposition of any assets of the Company or any Subsidiary of the
Company with an aggregate fair market value (as determined in good faith by
the Company's Board of Directors, which determination shall be evidenced by
a board resolution), individually or in the aggregate, of at least
$5,000,000 that have been pledged to or for the benefit of such holder or
holders to secure such Indebtedness or (b) shall commence proceedings, or
take any action (including by way of set off), to retain in satisfaction of
such Indebtedness or to collect on, seize, dispose of or apply in
satisfaction of such Indebtedness, such assets of the Company or any
Subsidiary of the Company (including funds on deposit or held pursuant to
lock-box and other similar arrangements);
(viii) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company
or any Subsidiary of the Company in an involuntary case or proceeding under
any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company or any Subsidiary of the Company bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Subsidiary of the Company 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
Subsidiary of the Company or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their affairs, and
any such decree or order for relief shall continue to be in effect, or any
such other decree or order shall be unstayed and in effect, for a period of
60 days; or
(ix) (a) the Company or any Subsidiary of the Company commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (b) the
Company or any Subsidiary of the Company consents to the entry of a decree
or order for relief in respect of the Company or such Subsidiary of the
Company in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, (c) the Company or any Subsidiary of the Company
files a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, (d) the Company or any
Subsidiary of the Company (x) consents to the filing of such petition or
the appointment of or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or such Subsidiary of the Company or of any substantial part of
their respective property, (y) makes an assignment for the benefit of
creditors or (z) admits in writing its inability to pay its debts generally
as they become due or (e) the Company or any Subsidiary of the Company
takes any corporate action in furtherance of any such actions in this
paragraph (ix).
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(b) Any notice of default delivered to the Company by the Trustee or by
Holders of Notes with a copy to the Trustee must specify the Default, demand
that it be remedied and state that the notice is a "NOTICE OF DEFAULT."
SECTION 6.02. Acceleration.
(a) If any Event of Default (other than an Event of Default specified
under Section 6.01(a)(viii) or (ix)) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may, and the Trustee at the request of such holders shall,
declare all the Notes to be due and payable immediately. In the case of an
Event of Default arising from the events specified in Sections 6.01(a)(viii) or
(ix), the principal of, premium, if any, and any accrued and unpaid interest on
all outstanding Notes shall IPSO FACTO become immediately due and payable
without further action or notice.
(b) The Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may rescind any declaration of
acceleration of such Notes and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Defaults and Events of
Default (other than the nonpayment of principal or premium, if any, or interest
on, the Notes which shall have become due by such declaration) shall have been
cured or waived.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, or premium, if any, or
interest on, the Notes or to enforce the performance of any provision of the
Notes or this Indenture. The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
this Indenture except (i) a continuing Default or Event of Default in the
payment of the principal of, or premium, if any,
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or interest on, the Notes (which may only be waived with the consent of each
Holder of Notes affected), or (ii) in respect of a covenant or provision which
under this Indenture cannot be modified or amended without the consent of the
Holder of each Note affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefore shall deemed to have been
cured for every purpose of this Indenture; PROVIDED that no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.05. Control by Majority of Holders.
Subject to Section 7.01(e), the Holders of a majority in aggregate
principal amount of the outstanding Notes may 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 it by this Indenture. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
SECTION 6.06. Limitation of Suits by Holders.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if: (1) the Holder gives to the Trustee notice of a continuing Event of
Default; (2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy; (3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss liability or expense; (4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of indemnity;
and (5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request. A Holder may not use this Indenture to
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder. Holders of the Notes may not enforce this Indenture,
except as provided herein.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Article X, the right of any Holder to receive payment of principal of, and
premium, if any, and interest on, a Note, on or after a respective due date
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective date, shall not be impaired or affected without the
consent of the Holder.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for (i) the principal,
premium, if any, and interest remaining unpaid on the Notes, (ii) interest on
overdue principal and premium, if any, and, to the extent lawful, interest, and
(iii) 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 ("TRUSTEE EXPENSES").
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable to have the claims of the Trustee (including any
claim for Trustee Expenses and for amounts due under Section 7.07) and the
Holders allowed in any Insolvency or Liquidation Proceeding relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute to Holders
any money or other property payable or deliverable on any such claims and each
Holder authorizes any Custodian in any such Insolvency or Liquidation Proceeding
to make such payments to the Trustee, and if the Trustee shall consent to the
making of such payments directly to the Holders any such Custodian is hereby
authorized to make such payments directly to the Holders, and to pay to the
Trustee any amount due to it hereunder for Trustee Expenses, and any other
amounts due the Trustee under Section 7.07; PROVIDED, HOWEVER, that the Trustee
shall not be authorized to (i) consent to, accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or (ii) vote in respect of the
claim of any Holder in any such Insolvency or Liquidation Proceeding. To the
extent that the payment of any such Trustee Expenses, and any other amounts due
the Trustee under Section 7.07 out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall pay
out the money in the following order:
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First: to the Trustee for Trustee Expenses for amounts due under Section
7.07;
Second: to the holders of Senior Debt to the extent required by Articles
X and XI;
Third: to Holders for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest,
respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default occurs (and has not been cured) the Trustee
shall (i) exercise the rights and powers vested in it by this Indenture, and
(ii) use the same degree of care and skill in exercising such rights and powers
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
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(b) Except during the continuance of an Event of Default: (i) the
Trustee's duties shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether they conform to this Indenture's
requirements.
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except,
that: (i) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction it receives pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee shall be subject to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as it may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document it believes to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers Certificate or Opinion of
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Counsel; PROVIDED that such action or omission does not constitute gross
negligence. The Trustee may consult with counsel and 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 under this Indenture
in good faith and in reliance on such advice or opinion.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits in
good faith that it believes to be authorized or within its rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not Trustee. However,
if the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee,
or resign. Each Agent shall have the same rights as the Trustee under this
Section 7.03.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes; it shall not be
accountable for the Company's use of the proceeds from the Notes or for any
money paid to the Company or upon the Company's direction under any provisions
of this Indenture; it shall not be responsible for the use or application of any
money that any Paying Agent other than the Trustee receives; and, it shall not
be responsible for any statement or recital in this Indenture or any statement
in the Notes or any other document executed in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
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SECTION 7.05. Notice to Holders of Defaults and Events of Default.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Note (including any failure to
redeem Notes called for redemption or any failure to purchase Notes tendered
pursuant to an Offer that are required to be purchased by the terms of this
Indenture), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers determines in good faith that withholding such notice is in
the Holders' interests.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each , beginning with , 1997, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with section 313(a) of the TIA (but if no event described in
Section 313 (a) of the TIA has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with Section 313(b)(2) of the TIA. The Trustee shall also transmit by mail all
reports as required by Section 313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a copy of
each report at the time of its mailing to Holders shall be filed with the
Commission and each stock exchange on which the Notes are listed. The Company
shall notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses it incurs or makes in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses the Trustee incurs arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth below. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity; PROVIDED, HOWEVER, that failure by the Trustee to
provide the Company with any such notice shall not relieve the
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Company of any of its obligations under this Section 7.07. The Trustee shall
cooperate in the defense of any such claim. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The Company's obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture. The Company need not reimburse
any expense or indemnify against any loss or liability the Trustee incurs
through negligence or bad faith.
To secure payment of the Company's obligations under this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property the
Trustee holds or collects, except the Trust Funds and any other funds from time
to time held in trust or as security to pay principal of, and premium, if any,
and interest on, particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(a)(viii) or (ix) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law without any need to demonstrate substantial contribution under Bankruptcy
Law.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in aggregate principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if: (1) the Trustee
fails to comply with Section 7.10; (ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law; (iii) a Custodian or public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of performing the
services of the Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee; PROVIDED that the
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Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace any successor Trustee appointed
by Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective and the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its appointment to
Holders. The retiring Trustee shall promptly transfer all property it holds as
Trustee to the successor Trustee; provided that all sums owing to the retiring
Trustee hereunder have been paid. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the retiring Trustee's benefit with respect to expenses and
liabilities relating to the retiring Trustee's activities prior to being
replaced.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times (i) be a corporation organized and doing
business under the laws of the United States of America, of any state thereof,
or the District of Columbia authorized under such laws to exercise corporate
trust powers, (ii) be subject to supervision or examination by federal or state
authority, (iii) have a combined capital and surplus of at least $100 million as
set forth in its most recently published annual report of condition, and (iv)
satisfy the requirements of Sections 310(a)(1),(2) and (5) of the TIA. The
Trustee is subject to Section 310(b) of the TIA.
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) Subject to Sections 8.01(c), 8.02 and 8.06, this Indenture shall cease
to be of any further effect as to all outstanding Notes and Subsidiary
Guarantees after (i) either (a) all Notes heretofore authenticated and delivered
(other than Notes replaced pursuant to Section 2.07) have been delivered to the
Trustee for cancellation or (b) all Notes not previously delivered for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee an amount in United States
dollars sufficient to pay and discharge the entire indebtedness on such Notes
not previously delivered to the Trustee for cancellation, for the principal of,
premium, if any, and interest to the date of repayment, (ii) the Company has
paid or caused to be paid all other sums payable under this Indenture and
(iii) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have been
complied with and that such deposit does not violate the provisions of Article X
or the subordination provisions of Article XI.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at any time
may terminate (i) all its obligations under this Indenture and the Notes ("LEGAL
DEFEASANCE OPTION"), or (ii) its obligations under Sections 4.02, 4.03, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19,
Article V, Article X and the subordination provisions of Article XI ("COVENANT
DEFEASANCE OPTION"). The Company may exercise its Legal Defeasance Option
notwithstanding its prior exercise of its Covenant Defeasance Option.
If the Company exercises its Legal Defeasance Option, payment of the Notes
may not be accelerated because of an Event of Default. If the Company exercises
its Covenant Defeasance Option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.01(a)(iii).
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Upon satisfaction of the conditions set forth in Section 8.02 and upon the
Company's request (and at the Company's expense), the Trustee shall acknowledge
in writing the discharge of those obligations that the Company has terminated.
(c) Notwithstanding Sections 8.01(a) and (b), the Company's obligations
under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 4.12, 4.20, 7.07, 7.08,
8.04, 8.05, and 8.06, and the obligations of the Trustee and the Paying Agent
under Section 8.04 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations under Sections 7.07 and 8.05 and the
obligations of the Company, Trustee and Paying Agent under Section 8.04 shall
survive.
SECTION 8.02. Conditions to Defeasance.
In order to exercise either its Legal Defeasance Option and give effect
thereto ("LEGAL DEFEASANCE") or its Covenant Defeasance Option and give effect
thereto ("COVENANT DEFEASANCE"), (i) the Company shall irrevocably deposit with
the Trustee, as trust funds in trust, for the benefit of the holders of the
Notes, cash in United States dollars, U.S. Government Obligations, or a
combination thereof, maturing as to principal and interest in such amounts as
will be sufficient, without consideration of any reinvestment of such interest,
in the opinion of a nationally recognized firm of independent public accountants
or a nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Notes on the
stated maturity of such principal or installment of principal or interest;
(ii) in the case of Legal Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders of the Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; (iii) in the case of Covenant Defeasance, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred; (iv) no Default or Event
of Default shall have occurred and be continuing on the date of such deposit or
insofar as clauses (viii) and (ix) under Section 6.01 are concerned, at any time
during the period ending on the 91st day after the date of deposit; (v) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of,
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or constitute a Default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound; (vi) the
Company shall have delivered to the Trustee an opinion of counsel to the effect
that (A) the trust funds will not be subject to any rights of holders of Senior
Debt or Guarantor Senior Debt of any Subsidiary Guarantor, including, without
limitation, those arising under this Indenture, after the 91st day following the
deposit and (B) after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally; (vii) the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit was not made by the Company with the intent of preferring the
holders of the Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others;
(viii) no event or condition shall exist that would prevent the Company from
making payments of the principal of, premium, if any, and interest on the Notes
on the date of such deposit or at any time ending on the 91st day after the date
of such deposit; (ix) 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 Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with; and (x) such
deposit shall not violate the provisions described in Article X or the
subordination provisions of Article XI.
SECTION 8.03. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money and/or U.S.
Government Obligations deposited with it pursuant to this Article VIII. The
Trustee or Paying Agent shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of, and premium, if any, and interest on, the Notes. Money deposited
with the Trustee or a Paying Agent pursuant to this Article VIII shall not be
subject to the provisions of Article X.
SECTION 8.04. Repayment to Company.
After the Notes have been paid in full, the Trustee and the Paying Agent
shall promptly turn over to the Company any excess money or securities held by
them.
Any money deposited with the Trustee or a Paying Agent pursuant to this
Article VIII for the payment of the principal of, premium, if any, or interest
on, any Note that remains unclaimed for two years after becoming due and payable
shall be paid to the Company on its request; and the Holder of such Note 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 money shall cease; PROVIDED, HOWEVER, that the Trustee or such
Paying
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Agent, before being required to make any such repayment, shall at the expense of
the Company cause to be published once, in THE NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.05. Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee and any Paying Agent
against any tax, fee or other charge imposed on or assessed against cash and/or
U.S. Government Obligations deposited with it pursuant to this Article VIII or
the principal and interest received on such cash and/or U.S. Government
Obligations.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article VIII; PROVIDED, HOWEVER, that if the Company has made any payment of
principal of, or premium, if any, or interest on, any Notes because of the
reinstatement of its obligations under this Indenture and the Notes, the Company
shall be subrogated to the Holders' rights to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLES IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted
Without Consent of Holders.
(a) Notwithstanding Section 9.02, the Company, the Subsidiary Guarantors
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder to: (i) cure any ambiguity, defect or inconsistency; (ii)
provide for uncertificated Notes in addition to or in place of certificated
Notes; (iii) provide for the assumption of the Company's obligations to the
Holders in the event of any Disposition involving the Company
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that is permitted under Article V in which the Company is not the Surviving
Person; (iv) make any change that would provide any additional rights or
benefits to Holders or does not adversely affect the interests of any Holder, or
(v) comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended or
supplemental indenture, the Trustee shall join with the Company and the
Subsidiary Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any future
appropriate agreements and stipulations that may be contained in any such
amended or supplemental indenture, but the Trustee shall not be obligated to
enter into an amended or supplemental indenture that affects its own rights,
duties, or immunities under this Indenture or otherwise.
SECTION 9.02. Amendments and Supplements Requiring
Consent of Holders.
(a) Except as otherwise provided in Sections 9.01(a) and 9.02(c), this
Indenture and the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes), and any existing Default or Event of Default
or compliance with any provision of this Indenture or the Notes may be waived
with the consent of Holders of at least a majority in principal of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes).
(b) Upon the Company's request and after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.06, the Trustee shall join with the Company and the
Subsidiary Guarantors in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture affects the Trustee's own rights,
duties, or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but not be obligated to, enter into such amended
or supplemental indenture.
(c) No such modification or amendment may, without the consent of the
Holder of each outstanding Note affected thereby: (i) change the stated
maturity of the principal of, or any installment of interest on, any Note, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or currency or
the manner in which the principal of any Note or any premium or the
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interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the stated maturity thereof (or, in the
case of redemption, on or after the redemption date); (ii) extend the time for
payment of interest on the Notes; (iii) alter the redemption provisions in the
Notes or this Indenture in a manner adverse to any Holder of the Notes;
(iv) amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control or
modify any of the provisions or definitions with respect thereto; (v) reduce the
percentage in principal amount of outstanding Notes, the consent of whose
holders is required for any amended or supplemental indenture or the consent of
whose holders is required for any waiver of compliance with any provision of
this Indenture or any Default hereunder and the consequences provided for
hereunder; (vi) modify any of the provisions of this Indenture relating to any
amended or supplemental indentures requiring the consent of Holders or relating
to the waiver of past defaults or relating to the waiver of any covenant, except
to increase the percentage of outstanding Notes required for such actions or to
provide that any other provision of this Indenture cannot be modified or waived
without the consent of the holder of each Note affected thereby; (vii) except as
otherwise permitted under Section 5.01, consent to the assignment or transfer by
the Company of any of its rights and obligations under this Indenture;
(viii) modify any of the provisions of this Indenture relating to the
subordination of the Notes or the Subsidiary Guarantees in a manner adverse to
the Holders of the Notes; (ix) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee other than in accordance with the
terms of this Indenture or (x) modify the provisions of Section 4.20 or any of
the definitions related thereto in a manner adverse to any holder of the Notes.
(d) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to each Holder affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.
SECTION 9.03. Compliance with TIA.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended supplemental indenture that complies with the TIA as then in
effect.
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SECTION 9.04. Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent holder of a Note or portion of a Note that evidences the same
Indebtedness as the consenting Holder's Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Note or portion of a Note if the Trustee receives
the notice of revocation before the date on which the Trustee receives an
Officers Certificate certifying that the Holders of the requisite principal
amount of Notes have consented to the amendment or waiver.
(b) The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the holders of notes entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
holders of Notes at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be holders of Notes after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such
90-day period.
(c) After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in Section 9.02(c), in which case the
amendment or waiver shall only bind each Holder that consented to it and every
subsequent holder of a Note that evidences the same debt as the consenting
Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver. Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
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SECTION 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article IX if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing such amendment or supplemental
indenture, the Trustee shall be entitled to receive and, subject to Section
7.01, shall be fully protected in relying upon, an Officers Certificate and
Opinion of Counsel pursuant to Sections 12.04 and 12.05 as conclusive evidence
that such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that all
Obligations owed under and in respect of the Notes are subordinated in right of
payment, to the extent and in the manner provided in this Article X, to the
prior payment in full in cash, Cash Equivalents or in any other form acceptable
to holders of Senior Debt of all Senior Debt of the Company, and that the
subordination of the Notes pursuant to this Article X is for the benefit of all
holders of all Senior Debt of the Company, whether outstanding on the Issue Date
or issued thereafter.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of cash, securities or other property
of the Company to creditors upon any Insolvency or Liquidation Proceeding with
respect to the Company or its property or securities, the holders of any Senior
Debt of the Company will be entitled to receive payment in full, in cash, Cash
Equivalents or any other form acceptable to the holders of Senior Debt, of all
Obligations due in respect of such Senior Debt (including Post-Petition
Interest) before the Holders will be entitled to receive any payment or
distribution with respect to the Notes (other than Reorganization Securities),
and until all Obligations with respect to such Senior Debt of the Company are
paid in full, in cash or Cash Equivalents or any other form acceptable to the
holders of Senior Debt, any payment or distribution to which the Holders would
be entitled shall be made to the holders of the Company's Senior Debt (PRO RATA
to such holders on the basis of the amounts of Senior Debt held by them). Upon
any
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Insolvency or Liquidation Proceeding with respect to the Company, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee would be entitled to
except for the provisions of this Indenture shall be paid by the Company, any
Custodian or other Person making such payment or distribution, or by the Holders
or by the Trustee if received by them, directly to the holders of the Company's
Senior Debt (PRO RATA to such holders on the basis of the amounts of Senior Debt
held by them) or their Representatives, as their interests may appear, for
application to the payment of all outstanding Senior Debt of the Company until
all such Senior Debt has been paid in full in cash, Cash Equivalents or any
other form acceptable to the holders of Senior Debt, after giving effect to all
other payments or distributions to, or provisions made for, holders of the
Company's Senior Debt.
(b) Notwithstanding anything to the contrary in this Indenture, any
Disposition by or involving the Company, or the liquidation or dissolution of
the Company following any Disposition, shall not be deemed an Insolvency or
Liquidation Proceeding for the purposes of this Section 10.02 if such
Disposition is permitted under Article V.
SECTION 10.03. Default on Senior Debt.
(a) Upon the occurrence of any default in the payment of the principal of,
or premium, if any, or interest on any Designated Senior Debt (a "PAYMENT
DEFAULT") and after the receipt by the Trustee from a Representative of the
holders of such Designated Senior Debt of written notice (a "PAYMENT BLOCKAGE
NOTICE") thereof, no payment (other than Reorganization Securities) shall be
made by the Company on account of the principal of, premium, if any, or interest
on the Notes or on account of the purchase, redemption, defeasance (other than
any payments made by the Trustee pursuant to Article VIII) or other acquisition
of or in respect of the Notes unless and until such Payment Default has been
cured, waived or has ceased to exist or such Designated Senior Debt shall have
been discharged or paid in full in cash, Cash Equivalents or in any other manner
acceptable to the holders of Designated Senior Debt.
(b) Upon the occurrence of any non-payment default with respect to any
Designated Senior Debt by reason of which the maturity thereof may be
accelerated (a "NON-PAYMENT DEFAULT") and after the receipt by the Trustee from
a Representative of the holders of such Designated Senior Debt of a Payment
Blockage Notice with respect to such Non-Payment Default, no payment (other than
Reorganization Securities) may be made by the Company on account of any
principal of, premium, if any, or interest on the Notes or on account of the
purchase, redemption, defeasance (other than any payments made by the Trustee
pursuant to Article VIII) or other acquisition of or in respect of the Notes for
the period specified below (the "PAYMENT BLOCKAGE PERIOD").
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(c) The Payment Blockage Period shall commence upon the receipt by the
Trustee of a Payment Blockage Notice with respect to the Non-Payment Default
from a Representative of the holders of any Designated Senior Debt and shall end
on the earliest of (x) the date on which such Non-Payment Default is cured or
waived or shall have ceased to exist or the Designated Senior Debt related
thereto shall have been discharged or paid in full in cash, Cash Equivalents or
any other manner acceptable to holders of such Designated Senior Debt, (y) 179
days after the date on which the Payment Blockage Notice with respect to such
default was received by the Trustee and (z) the date such Payment Blockage
Period is terminated by written notice to the Trustee from a Representative of
the holders of the Designated Senior Debt that gave such Payment Blockage
Notice, after which, in the case of clause (x), (y) or (z), the Company shall
resume making any and all required payments in respect of the Notes, including
any missed payments. During any consecutive 365-day period, the aggregate
number of days for which a Payment Blockage Period may exist shall not exceed
179 days, only one Payment Blockage Period may be commenced and there shall be
at least 186 consecutive days in each 365-day period during which no Payment
Blockage Period shall be in effect. No Non-Payment Default with respect to
Designated Senior Debt that (i) gives rise to the commencement of a Payment
Blockage Period or (ii) exists at the commencement of any Payment Blockage
Period shall be made the basis for the commencement of any subsequent Payment
Blockage Period, whether or not within a period of 365 consecutive days, unless
such default has been cured or waived for a period of not less than 90
consecutive days following the commencement of the initial Payment Blockage
Period.
SECTION 10.04. When Distributions Must Be Paid Over.
If the Company shall make any payment to the Trustee on account of the
principal of, or premium, if any, or interest on, the Notes, or any other
Obligation in respect to the Notes, or the Holders shall receive from any source
any payment on account of the principal of, or premium, if any, or interest on,
the Notes or any Obligation in respect of the Notes, at a time when such payment
is prohibited by this Article X, the Trustee or such Holders shall hold such
payment in trust for the benefit of, and shall pay over and deliver to, the
holders of Senior Debt (PRO RATA as to each of such holders on the basis of the
respective amounts of such Senior Debt held by them) or their Representative or
the trustee under the indenture or other agreement (if any) pursuant to which
such Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of all outstanding Senior Debt until all such
Senior Debt has been paid in full in cash, Cash Equivalents, or any other form
acceptable to the holders of Senior Debt, after giving effect to all other
payments or distributions to, or provisions made for, the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on its part as are specifically set forth in this
Article X, and no implied
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covenants or obligations with respect to any 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 holders of such Senior Debt, if the Trustee shall pay over or distribute
to, or on behalf of, Holders or the Company or any other Person money or assets
to which any holders of such Senior Debt are entitled pursuant to this Article
X, except if such payment is made at a time when a Trust Officer has knowledge
that the terms of this Article X prohibit such payment.
SECTION 10.05. Notice.
Neither the Trustee nor the Paying Agent shall at any time be charged with
the knowledge of the existence of any facts that would prohibit the making of
any payment to or by the Trustee or Paying Agent under this Article X, unless
and until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of Senior Debt or a Representative of
any holders of such Senior Debt; and, prior to the receipt of any such written
notice, the Trustee or Paying Agent shall be entitled to assume conclusively
that no such facts exist. The Trustee shall be entitled to rely on the delivery
to it of written notice by a Person representing itself to be a holder of Senior
Debt (or a Representative thereof) to establish that such notice has been given.
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts it knows that would cause a payment of principal of, or
premium, if any, or interest on, the Notes or any other Obligation in respect of
the Notes to violate this Article X, but failure to give such notice shall not
affect the subordination of the Notes to Senior Debt provided in this Article X
or the rights of holders of such Senior Debt under this Article X.
SECTION 10.06. Subrogation.
After all Senior Debt has been paid in full in cash, Cash Equivalents, or
any other form acceptable to the holders of Senior Debt, and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness PARI PASSU with the Notes) to the rights of holders of such Senior
Debt to receive distributions applicable to such Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of such Senior Debt. A distribution made under this Article X to holders of
Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on its Senior Debt.
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SECTION 10.07. Relative Rights.
This Article X defines the relative rights of Holders and holders of Senior
Debt. Nothing in this Article X or elsewhere in this Indenture or in any Note
is intended to or shall: (1) impair, as between the Company and Holders, the
Obligations of the Company which are absolute and unconditional, to pay to the
Holders the principal of, and premium, if any, and interest on, the Notes as and
when the same shall become due and payable in accordance with their terms; (2)
affect the relative rights of Holders and creditors of the Company other than
holders of Senior Debt; or (3) prevent the Trustee or any Holder from exercising
its available remedies upon a Default or Event of Default, subject to the rights
of holders of Senior Debt to receive distributions and payments otherwise
payable to Holders.
The failure to make a payment on account of principal of, or interest on,
the Notes by reason of any provision of this Article X shall not be construed as
preventing the occurrence of an Event of Default under Section 6.01.
SECTION 10.08. The Company and Holders May Not Impair Subordination.
(a) No right of any holder of Senior Debt to enforce the subordination as
provided in this Article X shall at any time or in any way be prejudiced or
impaired by any act or failure to act by the Company or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture or the
Notes or any other agreement regardless of any knowledge thereof with which any
such holder may have or be otherwise charged.
(b) Without in any way limiting Section 10.08(a), the holders of any
Senior Debt may, at any time and from time to time, without the consent of or
notice to any Holders, without incurring any liabilities to any Holder and
without impairing or releasing the subordination and other benefits provided in
this Indenture or the Holders' obligations hereunder to the holders of such
Senior Debt, even if any Holder's right of reimbursement or subrogation or other
right or remedy is affected, impaired or extinguished thereby, do any one or
more of the following: (i) amend, renew, exchange, extend, modify, increase or
supplement in any manner such Senior Debt or any instrument evidencing or
guaranteeing or securing such Senior Debt or any agreement under which such
Senior Debt is outstanding (including, but not limited to, changing the manner,
place or terms of payment or changing or extending the time of payment of, or
renewing, exchanging, amending, increasing or altering, (1) the terms of such
Senior Debt, (2) any security for, or any guarantee of, such Senior Debt, (3)
any liability of any obligor on such Senior Debt (including any guarantor) or
any liability issued in respect of such Senior Debt); (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing
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such Senior Debt or any liability of any obligor thereon, to such holder, or any
liability issued in respect thereof; (iii) settle or compromise any such Senior
Debt or any other liability of any obligor of such Senior Debt to such holder or
any security therefor or any liability issued in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including,
without limitation, payment of any Senior Debt) in any manner or order; and (iv)
fail to take or to record or otherwise perfect, for any reason or for no reason,
any lien or security interest securing such Senior Debt by whomsoever granted,
exercise or delay in or refrain from exercising any right or remedy against any
obligor or any guarantor or any other Person, elect any remedy and otherwise
deal freely with any obligor and any security for such Senior Debt or any
liability of any obligor to the holders of such Senior Debt or any liability
issued in respect of such Senior Debt.
SECTION 10.09. Distribution or Notice to Representative.
Whenever a distribution is to be made, or a notice given, to holders of
Senior Debt pursuant to this Indenture, the distribution may be made and the
notice given to their Representative, if any. If any payment or distribution of
the Company's assets is required to be made to holders of Senior Debt pursuant
to this Article X, the Trustee and the Holders shall be entitled to rely upon
any order or decree of any court of competent jurisdiction, or upon any
certificate of a Representative of such Senior Debt or a Custodian, in
ascertaining the holders of such Senior Debt entitled to participate in any such
payment or distribution, the amount to be paid or distributed to holders of such
Senior Debt and all other facts pertinent to such payment or distribution or to
this Article X.
SECTION 10.10. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on the Notes
unless prior to any payment date it has received written notice of facts that
would cause a payment of principal of, or premium, if any, or interest on, the
Notes to violate this Article X. Only the Company, a Representative of Senior
Debt, or a holder of Senior Debt that has no Representative may give such
notice.
To the extent permitted by the TIA, the Trustee in its individual or any
other capacity may hold Indebtedness of the Company (including Senior Debt) with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights.
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SECTION 10.11. Authorization to Effect Subordination.
Each Holder of a Note by its acceptance thereof authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article X, and appoints the
Trustee as such Holder's attorney-in-fact for any and all such purposes
(including, without limitation, the timely filing of a claim for the unpaid
balance of the Note that such Holder holds in the form required in any
bankruptcy, reorganization, insolvency or receivership proceeding and causing
such claim to be approved).
If a proper claim or proof of debt in the form required in such proceeding
is not filed by or on behalf of all Holders prior to 30 days before the
expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Debt of the Company are hereby authorized, and
shall have the right (without any duty), to file an appropriate claim for and on
behalf of the Holders.
SECTION 10.12. Payment.
A payment on account of or with respect to any Note shall include, without
limitation, any direct or indirect payment of principal, premium or interest
with respect to or in connection with any optional redemption or purchase
provisions, any direct or indirect payment payable by reason of any other
Indebtedness or Obligation being subordinated to the Notes, and any direct or
indirect payment or recovery on any claim as a Holder relating to or arising out
of this Indenture or any Note, or the issuance of any Note, or the transactions
contemplated by this Indenture or referred to herein.
ARTICLE XI
SUBSIDIARY GUARANTEES
SECTION 11.01. Subsidiary Guarantees.
(a) Each Subsidiary Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee that: (i) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under this Indenture
and the Notes will be promptly paid in full, all in accordance with the terms of
this Indenture and the Notes; and (ii) in case of
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any extension of time of payment or renewal of any Notes or any of such other
Obligations, that the Notes will be promptly paid in full when due in accordance
with the terms of such extension or renewal, whether at stated maturity, by
acceleration or otherwise. In the event that the Company fails to pay any
amount guaranteed by the Subsidiary Guarantors for any reason whatsoever, the
Subsidiary Guarantors will be jointly and severally obligated to pay such amount
immediately. The Subsidiary Guarantors hereby further agree that their
Obligations under this Indenture and the Notes shall be unconditional,
regardless of the validity, regularity or enforceability of this Indenture or
the Notes, the absence of any action to enforce this Indenture or the Notes, any
waiver or consent by any Holder with respect to any provisions of this Indenture
or the Notes, any modification or amendment of, or supplement to, this Indenture
or the Notes, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that its Subsidiary
Guarantee of the Company's Obligations under this Indenture and the Notes will
not be discharged except by complete performance by the Company or another
Guarantor of such Obligations. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Subsidiary Guarantor or a
Custodian of the Company or a Subsidiary Guarantor any amount paid by the
Company or any Subsidiary Guarantor to the Trustee or such Holder, the
Subsidiary Guarantee of the Company's Obligations under this Indenture and the
Notes by each Subsidiary Guarantor shall, to the extent previously discharged as
a result of any such payment, be immediately reinstated and be in full force and
effect. Each Subsidiary Guarantor hereby acknowledges and agrees that, as
between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Company's Obligations under
this Indenture and the Notes may be accelerated as provided in Article VI for
purposes of the Subsidiary Guarantees notwithstanding any stay, injunction or
other prohibition preventing such acceleration, and (y) in the event of any
declaration of acceleration of the Company's Obligations under this Indenture
and the Notes as provided in Article VI, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the Subsidiary Guarantors
for the purpose of the Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of subrogation,
contribution, reimbursement and indemnity, and all other rights, that such
Subsidiary Guarantor would have against the Company at any time as a result of
any payment in respect of its Subsidiary Guarantee (whether contractual, under
section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to make any
payment in respect of its Subsidiary Guarantee shall be entitled to seek
contribution from the other
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Subsidiary Guarantors to the extent permitted by applicable law; PROVIDED that
each Subsidiary Guarantor agrees that any such claim for contribution that such
Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be
subrogated to the prior payment in full in cash of all Obligations owed to
Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock purchase, asset
sale or otherwise) of a Subsidiary Guarantor (or substantially all of its
assets) to an entity which is not a Subsidiary of the Company, which is
otherwise in compliance with this Indenture, such Subsidiary Guarantor shall be
deemed released from all its obligations under its Subsidiary Guarantee;
PROVIDED that any such termination shall occur only to the extent that all
obligations of such Subsidiary Guarantor under all of its guarantees of, and
under all of its pledges of assets or other security interests which secure,
other Indebtedness of the Company shall also terminate upon such release, sale
or transfer.
(e) Each Subsidiary Guarantor may consolidate with or merge into or sell
its assets to the Company or another Subsidiary Guarantor without limitation. A
Subsidiary Guarantor may consolidate with or merge into or sell its assets to a
corporation other than the Company or another Subsidiary Guarantor (whether or
not affiliated with such Subsidiary Guarantor, but subject to the provisions
described in Section 11.01(d)), provided that (a) if the Surviving Person is not
the Subsidiary Guarantor, the Surviving Person agrees to assume such Subsidiary
Guarantor's obligations under its Subsidiary Guarantee and all its obligations
under this Indenture and (b) such transaction does not (i) violate any covenants
set forth in this Indenture or (ii) result in a Default or Event of Default
under this Indenture immediately thereafter that is continuing.
SECTION 11.02. Trustee to Include Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company, the term "TRUSTEE" as used in this Article XI shall
(unless the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully and for all intents and
purposes as if such Paying Agent were named in this Article XI in place of the
Trustee.
SECTION 11.03. Limits on Subsidiary Guarantees.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the guarantee by each
Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the
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Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of each Subsidiary Guarantor under
the Subsidiary Guarantees shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of each Subsidiary
Guarantor, result in the obligations of each Subsidiary Guarantor under the
Subsidiary Guarantees not constituting such fraudulent transfer or conveyance.
SECTION 11.04. Execution of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in this Article XI, each
Subsidiary Guarantor hereby agrees to execute the Subsidiary Guarantee in
substantially the form included in Exhibit A, which shall be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each Subsidiary
Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Article
XI shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee. Each such Subsidiary
Guarantee shall be signed on behalf of each Subsidiary Guarantor by an Officer
(who shall have been duly authorized by all requisite corporate actions), and
the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Subsidiary Guarantee on behalf
of such Subsidiary Guarantor. Such signatures upon the Subsidiary Guarantee may
be by manual or facsimile signature of such Officer and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee, and in case any such Officer
who shall have signed the Subsidiary Guarantee shall cease to be such Officer
before the Note on which such Subsidiary Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed the Subsidiary Guarantee had not ceased to be such Officer
of the Subsidiary Guarantor.
SECTION 11.05. Stay, Extension and Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that would prohibit or
forgive each Subsidiary Guarantor from performing its Subsidiary Guarantee as
contemplated herein or which might affect the covenants or the performance of
this Indenture and Notes; and each such Subsidiary Guarantor (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power granted to the Trustee pursuant to this
Indenture, but will suffer and permit the execution of every such power as
though no such law has been enacted.
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SECTION 11.06. Agreement To Subordinate Subsidiary Guarantees to Guarantor
Senior Debt.
Each Subsidiary Guarantor agrees, and each Holder by accepting a Subsidiary
Guarantee agrees that all Obligations owed under and in respect of such
Subsidiary Guarantees are subordinated in right of payment, to the extent and in
the manner provided in this Article XI, to the prior payment in full in cash,
Cash Equivalents or in any other form acceptable to holders of Guarantor Senior
Debt, of all Guarantor Senior Debt of such Subsidiary Guarantor, and that the
subordination of the Subsidiary Guarantees pursuant to this Article XI is for
the benefit of all holders of all Guarantor Senior Debt of such Subsidiary
Guarantor, whether outstanding on the Issue Date or issued thereafter.
SECTION 11.07. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of cash, securities or other property
of any Subsidiary Guarantor to creditors upon any Insolvency or Liquidation
Proceeding with respect to such Subsidiary Guarantor or its property or
securities, the holders of any Guarantor Senior Debt of such Subsidiary
Guarantor will be entitled to receive indefeasible payment in full, in cash or
Cash Equivalents, or any form acceptable to holders of Guarantor Senior Debt, of
all Obligations due in respect of such Guarantor Senior Debt (including Post-
Petition Interest, whether or not, in the case of Guarantor Senior Debt under
the Senior Credit Facility, allowed as a claim in such proceeding) before the
Holders will be entitled to receive any payment or distribution with respect to
Subsidiary Guarantees (other than Reorganization Securities), and until all
Obligations with respect to such Guarantor Senior Debt of such Subsidiary
Guarantee are paid in full, in cash or Cash Equivalents, or any form acceptable
to holders of such Guarantor Senior Debt, any payment or distribution to which
the Holders would be entitled shall be made to the holders of such Subsidiary
Guarantors' Guarantor Senior Debt (PRO RATA to such holders on the basis of the
amounts of Guarantor Senior Debt held by them). Upon any Insolvency or
Liquidation Proceeding with respect to any Subsidiary Guarantor, any payment or
distribution of assets of such Subsidiary Guarantor of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled to except for the provisions of this Indenture shall be paid
by such Subsidiary Guarantee, any Custodian or other Person making such payment
or distribution, or by the Holders or by the Trustee if received by them,
directly to the holders of such Subsidiary Guarantors' Guarantor Senior Debt
(PRO RATA to such holders on the basis of the amounts of Guarantor Senior Debt
held by them) or their Representatives, as their interests may appear, for
application to the payment of all outstanding Guarantor Senior Debt of such
Subsidiary Guarantor until all such Guarantor Senior Debt has been paid in full
in cash, Cash Equivalents or any form acceptable to holders of Guarantor Senior
Debt after giving effect to all other payments or distributions to, or
provisions made for, holders of such Subsidiary Guarantors' Guarantor Senior
Debt.
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(b) Notwithstanding anything to the contrary in this Indenture, any
Disposition by or involving any Subsidiary Guarantor, or the liquidation or
dissolution of such Subsidiary Guarantor following any Disposition, shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 11.08 if such Disposition is permitted under Section 11.01(e).
SECTION 11.08. Default on Guarantor Senior Debt.
(a) Upon the occurrence of any Payment Default by the Company with respect
to any Designated Senior Debt guaranteed by a Subsidiary Guarantor (which
guarantee constitutes Guarantor Senior Debt of such Subsidiary Guarantor) and
after the receipt by the Trustee from a Representative of the holders of such
Designated Senior Debt of a Payment Blockage Notice, no payment (other than
Reorganization Securities) shall be made by such Subsidiary Guarantor on account
of the principal of, premium, if any, or interest on the Notes or on account of
the purchase, redemption, defeasance (other than any payments made by the
Trustee pursuant to Article VIII) or other acquisition of or in respect of the
Notes or any of the Obligations of such Subsidiary Guarantor under this
Subsidiary Guarantee unless and until such Payment Default has been cured,
waived or has ceased to exist or such Guarantor Senior Debt shall have been
discharged or paid in full in cash, Cash Equivalents or in any other manner
acceptable to the holders of such Guarantor Senior Debt.
(b) Upon the occurrence of any Non-Payment Default by the Company with
respect to any Designated Senior Debt guaranteed by a Subsidiary Guarantor
(which guarantee constitutes Guarantor Senior Debt of such Subsidiary Guarantor)
and after the receipt by the Trustee from a Representative of the holders of
such Designated Senior Debt of a Payment Blockage Notice, no payment (other than
Reorganization Securities) may be made by such Subsidiary Guarantor on account
of any principal of, premium, if any, or interest on the Notes or on account of
the purchase, redemption, defeasance (other than any payments made by the
Trustee pursuant to Article VIII) or other acquisition of or in respect of the
Notes or on account of any other obligations of such Subsidiary Guarantor under
this Subsidiary Guarantee for the period specified below (the "GUARANTOR PAYMENT
BLOCKAGE PERIOD").
(c) The Guarantor Payment Blockage Period shall commence upon the receipt
by the Trustee of a Payment Blockage Notice with respect to the Non-Payment
Default from a Representative of the holders of any Designated Senior Debt, and
shall end on the earliest of (x) the date on which such Non-Payment Default is
cured or waived or shall have ceased to exist or the Guarantor Senior Debt
related thereto shall have been discharged or paid in full in cash, Cash
Equivalents or any other manner acceptable to holders of such Guarantor Senior
Debt, (y) 179 days after the date on which the Payment Blockage Notice with
respect to such default was received by the Trustee and (z) the date such
Guarantor Payment Blockage Period is
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terminated by written notice to the Trustee from a representative of the holders
of the Guarantor Senior Debt that gave such Payment Blockage Notice, after
which, in the case of clause (x), (y) or (z), the Subsidiary Guarantor shall
resume making any and all required payments in respect of its obligations under
this Subsidiary Guarantee, including any missed payments. During any
consecutive 365-day period, the aggregate number of days for which a Guarantor
Payment Blockage Period may exist shall not exceed 179 days, only one Guarantor
Payment Blockage Period may be commenced and there shall be at least 186
consecutive days in each consecutive 365-day period during which no Guarantor
Payment Blockage Period shall be in effect. No Non-Payment Default with respect
to Guarantor Senior Debt that (i) gives rise to the commencement of a Guarantor
Payment Blockage Period or (ii) exists at the commencement of or during any
Guarantor Payment Blockage Period shall be made the basis for the commencement
of any subsequent Guarantor Payment Blockage Period, whether or not within a
period of 365 consecutive days, unless such default has been cured or waived for
a period of not less than 90 consecutive days following the commencement of the
initial Guarantor Payment Blockage Period.
SECTION 11.09. When Distributions Must Be Paid Over.
If any Subsidiary Guarantor shall make any payment to the Trustee on
account of the principal of, or premium, if any, or interest on, the Notes, or
any of its obligations under this Subsidiary Guarantee, or the Holders shall
receive from any source any payment on account of the principal of, or premium,
if any, or interest on, the Notes or any Obligation in respect of the Notes, at
a time when such payment is prohibited by this Article XI, the Trustee or such
Holders shall hold such payment in trust for the benefit of, and shall pay over
and deliver to, the holders of Guarantor Senior Debt (pro rata as to each of
such holders on the basis of the respective amounts of such Guarantor Senior
Debt held by them) or their Representative or the trustee under the indenture or
other agreement (if any) pursuant to which such Guarantor Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of all outstanding Guarantor Senior Debt until all such Guarantor Senior
Debt has been paid in full in cash, Cash Equivalents or any form acceptable to
holders of such Guarantor Senior Debt after giving effect to all other payments
or distributions to, or provisions made for, the holders of such Guarantor
Senior Debt.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform only such obligations on its part as are specifically set
forth in this Article XI, and no implied covenants or obligations with respect
to any holders of Guarantor 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 Guarantor Senior Debt, and shall not be liable to any holders
of such Guarantor Senior Debt if the Trustee shall pay over or distribute to, or
on behalf of,
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Holders or the Subsidiary Guarantors or any other Person money or assets to
which any holders of such Guarantor Senior Debt are entitled pursuant to this
Article XI, except if such payment is made at a time when a Trust Officer has
knowledge that the terms of this Article XI prohibit such payment.
SECTION 11.10. Notice.
Neither the Trustee nor the Paying Agent shall at any time be charged with
the knowledge of the existence of any facts that would prohibit the making of
any payment to or by the Trustee or Paying Agent under this Article XI, unless
and until the Trustee or Paying Agent shall have received written notice thereof
from the Company, any Subsidiary Guarantor or one or more holders of Guarantor
Senior Debt or a Representative of any holders of such Guarantor Senior Debt;
and, prior to the receipt of any such written notice, the Trustee or Paying
Agent shall be entitled to assume conclusively that no such facts exist. The
Trustee shall be entitled to rely on the delivery to it of written notice by a
Person representing itself to be a holder of Guarantor Senior Debt (or a
Representative thereof) to establish that such notice has been given.
The Company or any Subsidiary Guarantor shall promptly notify the Trustee
and the Paying Agent in writing of any facts it knows that would cause a payment
of principal of, or premium, if any, or interest on, the Notes or any of the
Subsidiary Guarantors' obligations under this Subsidiary Guarantee to violate
this Article XI, but failure to give such notice shall not affect the
subordination of the Subsidiary Guarantees to Guarantor Senior Debt provided in
this Article XI or the rights of holders of such Guarantor Senior Debt under
this Article XI.
SECTION 11.11. Subrogation.
After all Guarantor Senior Debt has been paid in full in cash, Cash
Equivalents or any form acceptable to holders of Guarantor Senior Debt and until
the Notes are paid in full, Holders of Subsidiary Guarantees shall be subrogated
(equally and ratably with all other Indebtedness PARI PASSU with the Subsidiary
Guarantees) to the rights of holders of such Guarantor Senior Debt to receive
distributions applicable to such Guarantor Senior Debt to the extent that
distributions otherwise payable to the Holders of Subsidiary Guarantees have
been applied to the payment of such Guarantor Senior Debt. A distribution made
under this Article XI to holders of Guarantor Senior Debt that otherwise would
have been made to Holders of Subsidiary Guarantees is not, as between the
Subsidiary Guarantors and Holders of Subsidiary Guarantees, a payment by such
Subsidiary Guarantor on its Guarantor Senior Debt.
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SECTION 11.12. Relative Rights.
This Article XI defines the relative rights of Holders and holders of
Guarantor Senior Debt. Nothing contained in this Article XI or elsewhere in
this Indenture or in any Subsidiary Guarantee is intended to or shall:
(1) impair, as between the Subsidiary Guarantors and the Holders, the obligation
of the Subsidiary Guarantors, which is absolute and unconditional, to pay all
amounts due and payable under the Subsidiary Guarantees as and when the same
shall become due and payable in accordance with their terms; (2) affect the
relative rights of the Holders and creditors of the Subsidiary Guarantors other
than their rights in relation to holders of Guarantor Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available remedies
upon a Default or Event of Default, subject to the rights of the holders of such
Guarantor Senior Debt to receive distributions and payments otherwise payable to
Holders.
The failure to make a payment on account of all amounts due and payable
under the Subsidiary Guarantees by reason of any provision of this Article XI
shall not be construed as preventing the occurrence of an Event of Default under
Section 6.01.
SECTION 11.13. The Subsidiary Guarantors and Holders May Not Impair
Subordination.
(a) No right of any holder of Guarantor Senior Debt to enforce the
subordination as provided in this Article XI shall at any time or in any way be
prejudiced or impaired by any act or failure to act by any of the Subsidiary
Guarantors or by any noncompliance by any of the Subsidiary Guarantors with the
terms, provisions and covenants of this Indenture or the Subsidiary Guarantees
or any other agreement regardless of any knowledge thereof with which any such
holder may have or be otherwise charged.
(b) Without in any way limiting Section 11.14(a), the holders of any
Guarantor Senior Debt may, at any time and from time to time, without the
consent of or notice to any Holders, without incurring any liabilities to any
Holder and without impairing or releasing the subordination and other benefits
provided in this Indenture or the Holders' obligations to the holders of such
Guarantor Senior Debt, even if any Holder's right of reimbursement or
subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement in any manner such Guarantor Senior Debt
or any instrument evidencing or guaranteeing or securing such Guarantor Senior
Debt or any agreement under which such Guarantor Senior Debt is outstanding
(including, but not limited to, changing the manner, place or terms of payment
or changing or extending the time of payment of, or renewing, exchanging,
amending, increasing or altering, (1) the terms of such Guarantor Senior Debt,
(2) any security for, or any guarantee of, such Guarantor Senior Debt, (3) any
liability of any obligor on such Guarantor Senior Debt (including any guarantor)
or any liability issued in respect of such
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Guarantor Senior Debt); (ii) sell, exchange, release, surrender, realize upon,
enforce or otherwise deal with in any manner and in any order any property
pledged, mortgaged or otherwise securing such Guarantor Senior Debt or any
liability of any obligor thereon, to such holder, or any liability issued in
respect thereof; (iii) settle or compromise any such Guarantor Senior Debt or
any other liability of any obligor of such Guarantor Senior Debt to such holder
or any security therefor or any liability issued in respect thereof and apply
any sums by whomsoever paid and however realized to any liability (including,
without limitation, payment of any Guarantor Senior Debt) in any manner or
order; and (iv) fail to take or to record or otherwise perfect, for any reason
or for no reason, any lien or security interest securing such Guarantor Senior
Debt by whomsoever granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or any guarantor or any other Person, elect
any remedy and otherwise deal freely with any obligor and any security for such
Guarantor Senior Debt or any liability of any obligor to the holders of such
Guarantor Senior Debt or any liability issued in respect of such Guarantor
Senior Debt.
SECTION 11.14. Distribution or Notice to Representative.
Whenever a distribution is to be made, or a notice given, to holders of
Guarantor Senior Debt pursuant to this Indenture, the distribution may be made
and the notice given to their Representative, if any. If any payment or
distribution of any Subsidiary Guarantor's assets is required to be made to
holders of Guarantor Senior Debt pursuant to this Article XI, the Trustee and
the Holders shall be entitled to rely upon any order or decree of any court of
competent jurisdiction, or upon any certificate of a Representative of such
Guarantor Senior Debt or a Custodian, in ascertaining the holders of such
Guarantor Senior Debt entitled to participate in any such payment or
distribution, the amount to be paid or distributed to holders of such Guarantor
Senior Debt and all other facts pertinent to such payment or distribution or to
this Article XI.
SECTION 11.15. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on the Notes
unless prior to any payment date it has received written notice of facts that
would cause a payment of principal of, or premium, if any, or interest on, the
Notes to violate this Article XI. Only the Company, a Subsidiary Guarantor, a
Representative of Senior Debt or Guarantor Senior Debt, or a holder of Senior
Debt or Guarantor Senior Debt that has no Representative may give such notice.
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To the extent permitted by the TIA, the Trustee in its individual or any
other capacity may hold Guarantor Senior Debt with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights.
SECTION 11.16. Authorization To Effect Subordination.
Each Holder of a Subsidiary Guarantee by its acceptance thereof authorizes
and directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XI, and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes (including, without limitation, the timely filing of a claim for the
unpaid balance on a Subsidiary Guarantee that such Holder holds in the form
required in any bankruptcy, reorganization, insolvency or receivership
proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such proceeding
is not filed by or on behalf of all Holders prior to 30 days before the
expiration of the time to file such claims or proofs, then the holders or a
Representative of any Guarantor Senior Debt are hereby authorized, and shall
have the right (without any duty), to file an appropriate claim for and on
behalf of the Holders.
SECTION 11.17. Payment.
A payment on account of or with respect to any Subsidiary Guarantee shall
include, without limitation, any direct or indirect payment of principal,
premium or interest with respect to or in connection with any optional
redemption or purchase provisions, any direct or indirect payment payable by
reason of any other Debt or Obligation being subordinated to the Subsidiary
Guarantees, and any direct or indirect payment or recovery on any claim as a
Holder relating to or arising out of this Indenture or any Subsidiary Guarantee,
or the issuance of any Subsidiary Guarantee, or the transactions contemplated by
this Indenture or referred to herein.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provisions of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of Section 318(c) of the TIA, the imposed duties
shall control.
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SECTION 12.02. Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or the
Trustee to the other is duly given if in writing and delivered in person, mailed
by registered or certified mail, postage prepaid, return receipt requested or
delivered by telecopier or overnight air courier guaranteeing next day delivery
to the other's address:
If to the Company or to any Subsidiary Guarantor:
Gray Communications Systems, Inc.
126 North Washington Street
Albany, Georgia 31701
Attention: William A. Fielder
With a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
Attention: Henry O. Smith III, Esq.
If to the Trustee:
First Bank Systems of Minneapolis
[To come]
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; the date receipt is acknowledged, if mailed by registered or
certified mail; when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail
to his or her address shown on the register maintained by the Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above within the
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time prescribed, it is duly given, whether or not the addressee receives it. If
the Company mails a notice or communication to Holders, it shall mail a copy to
the Trustee and each Agent at the same time.
SECTION 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of Section 312(c) of the TIA.
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee: (a) an
Officers Certificate (which shall include the statements set forth in Section
12.05) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and (b) an Opinion of Counsel (which shall
include the statements set forth in Section 12.05) stating that, in the opinion
of such counsel, all such conditions precedent provided for in this Indenture
relating to the proposed action have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 314(a)(4) of the TIA) shall include: (1) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, 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 such
Person's opinion, such condition or covenant has been complied with.
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SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. Legal Holidays.
If a payment date is a Legal Holiday, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 12.08. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the Company
shall have any liability for any obligation of the Company under this Indenture
or the Notes. Each Holder by accepting a Note waives and releases such Persons
from all such liability and such waiver and release is part of the consideration
for the issuance of the Notes.
SECTION 12.09. Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 12.10. Initial Appointments, Compliance Certificates.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent. The first compliance certificate to be delivered by the
Company to the Trustee pursuant to Section 4.03 shall be for the fiscal year
ending on December 31, 1996.
SECTION 12.11. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Notes, without regard to the conflict of laws provisions thereof.
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SECTION 12.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries, and no other indenture,
loan or debt agreement may be used to interpret this Indenture.
SECTION 12.13. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
any successor of the Company. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 12.14. Severability.
If any provision in this Indenture or in the Notes 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 12.15. Third Party Beneficiaries.
Holders of Senior Debt of the Company are third party beneficiaries of, and
any of them (or their Representative) shall have the right to enforce the
provisions of this Indenture that benefit such holders.
SECTION 12.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture, and shall in no way
modify or restrict any of the terms or provisions of this Indenture.
SIGNATURES
THE COMPANY:
GRAY COMMUNICATIONS SYSTEMS, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
THE SUBSIDIARY GUARANTORS:
THE ALBANY HERALD PUBLISHING
COMPANY, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
THE SOUTHWEST GEORGIA SHOPPER, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WALB-TV, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WJHG-TV, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
KTVE, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
GRAY KENTUCKY TELEVISION, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WRDW-TV, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
THE ROCKDALE CITIZEN PUBLISHING
COMPANY
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
GRAY REAL ESTATE & DEVELOPMENT
COMPANY
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
GRAY TRANSPORTATION COMPANY, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WALB LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WJHG LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WKYT LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WRDW LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WYMT LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WKXT LICENSEE CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WCTV OPERATING CORP.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
WKXT-TV, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
GRAY TELEVISION MANAGEMENT, INC.
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
BANKERS TRUST COMPANY,
as Trustee
Attest: By:
------------------------------------------
Name:
Title:
- -----------------------
[FORM OF NOTE]
EXHIBIT A
(Face of Note)
GRAY COMMUNICATIONS SYSTEMS, INC.
% Senior Subordinated Note due 2006
No. ____________ $__________
Gray Communications Systems, Inc., a Georgia corporation (hereinafter
called the "Company," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ________________ or registered assigns, the principal sum of
_______________________ Dollars on , 2006.
Interest Payment Dates: , and , commencing ,
1996
Record Dates:
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers and a facsimile of its seal to
be affixed hereto or imprinted hereon.
GRAY COMMUNICATIONS SYSTEMS, INC.
By:
-------------------------------------
By:
-------------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ______________________
Authorized Signatory
(Back of Note)
% SENIOR SUBORDINATED NOTE DUE 2006
1. INTEREST. Gray Communications Systems, Inc. (the "Company") promises
to pay interest on the principal amount of this Note at the rate and in the
manner specified below. Interest on this Note will accrue at % per annum
from the date this Note is issued until maturity and will be payable
semiannually in cash on and of each year, or if any such
day is not a Business Day on the next succeeding Business Day (each an "INTEREST
PAYMENT DATE"). Interest on this Note will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from the date of
original issuance; PROVIDED that the first Interest Payment Date shall be
_____________. The Company shall pay interest on overdue principal and premium,
if any, from time to time on demand at the rate of 2% per annum in excess of the
interest rate then in effect and shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on this Note (except
defaulted interest) to the Person who is the registered Holder of this Note at
the close of business on the record date for the next Interest Payment Date even
if such Note is cancelled after such record date and on or before such Interest
Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments on such Notes. The Company will pay principal, premium, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest by check payable in such money, and
any such check may be mailed to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. First Bank Systems of Minneapolis (the
"TRUSTEE") will initially act as the Paying Agent and Registrar. The Company
may appoint additional paying agents or co-registrars, and change the Paying
Agent, any additional paying agent, the Registrar or any co-registrar without
prior notice to any Holder. The Company or any of its Affiliates may act in any
such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture, dated as
of , 1996 (the "INDENTURE"), by and among the Company, as issuer of
the Notes, The Albany Herald Publishing Company, Inc., a Georgia corporation,
The Southwest Georgia Shopper, Inc., a Georgia corporation, WALB-TV, Inc., a
Georgia corporation, WJHG-TV, Inc., a Georgia corporation, KTVE, Inc., an
Arkansas corporation, Gray Kentucky Television, Inc., a Georgia corporation,
WRDW-TV, Inc., a Georgia corporation, The Rockdale Citizen Publishing Company, a
Georgia corporation,
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Gray Real Estate & Development Company, a Georgia corporation, Gray
Transportation Company, Inc., a Georgia corporation, WALB Licensee Corp., a
Delaware corporation, WJHG Licensee Corp., a Delaware corporation, WKYT Licensee
Corp., a Delaware corporation, WRDW Licensee Corp., a Delaware corporation, WYMT
Licensee Corp., a Delaware corporation, WKXT Licensee Corp., a Delaware
corporation, WCTV Operating Corp., a Delaware corporation, WKXT-TV, Inc., a
Delaware corporation, and Gray Television Management, Inc., a Delaware
corporation, as guarantors of the Company's obligations under the Indenture and
the Notes (each an "Subsidiary Guarantor") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb) as in effect on the date of the original issuance of the Notes (the
"TRUST INDENTURE ACT"). The Notes are subject to, and qualified by, all such
terms, certain of which are summarized herein, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned them in
the Indenture). The Notes are unsecured general obligations of the Company
limited to $150,000,000 in aggregate principal amount.
5. REDEMPTION PROVISIONS.
(a) The Notes will be subject to a special redemption (the "SPECIAL
REDEMPTION") on, or at any time prior to, the Special Redemption Date at a
redemption price of 101% of the principal amount of the Notes, plus accrued and
unpaid interest to the date of redemption (the "SPECIAL REDEMPTION PRICE"), if
the Phipps Acquisition is not consummated prior to the Special Redemption Date
or if it appears, in the sole judgment of the Company, that the Phipps
Acquisition will not be consummated on or prior to the Special Redemption Date.
(b) Except as set forth in subsection 5(a) above and as described
below, the Notes are not redeemable at the Company's option prior to ,
2001. Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below, plus any accrued and
unpaid interest to the date of redemption, if redeemed during the twelve-month
period beginning on of the years indicated below:
YEAR PERCENTAGE
2001 . . . . . . . . . . . . . . . . . . . . . . . %
2002 . . . . . . . . . . . . . . . . . . . . . . . %
2003 . . . . . . . . . . . . . . . . . . . . . . . %
2004 and thereafter. . . . . . . . . . . . . . . . %
-3-
Notwithstanding the foregoing, at any time prior to , 1999, the
Company, at its option, may redeem the Notes, in part, with the net proceeds of
one or more Public Equity Offerings, other than the Concurrent Offering, at a
redemption price equal to % of the principal amount thereof, together with
accrued and unpaid interest to the date of redemption; PROVIDED, HOWEVER, that
at least $97.5 million in aggregate principal amount of the Notes remains
outstanding immediately after any such redemption.
6. MANDATORY OFFERS.
(a) Within 30 days after any Change of Control or any Asset Sale
Trigger Date, the Company shall mail a notice to each Holder stating a number of
items as set forth in Sections 4.13 (with respect to Change of Control Offers)
or 4.14 (with respect to Asset Sale Offers) of the Indenture.
(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes in an Offer by completing the form below entitled "OPTION
OF HOLDER TO ELECT PURCHASE."
(c) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Notes, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Note equal in principal amount
to the unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer to Holders
on or as soon as practicable after the Purchase Date, and (ii) comply with the
applicable tender offer rules, including the requirements of Rule 14e-1 under
the Securities Exchange Act of 1934, as amended, and all other applicable
securities laws and regulations in connection with any Offer.
7. NOTICE OF REDEMPTION OR PURCHASE. (a) At least 2 Business Days before
notice of any Special Redemption or (b) at least 30 days but not more than 60
days before any redemption date, the Company shall mail by first class mail a
notice of redemption to each Holder of Notes or portions thereof that are to be
redeemed.
8. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or
purchased in part, but only in whole multiples of $1,000 unless all Notes held
by a Holder are to be redeemed or purchased. On or after any date on which
Notes are redeemed or purchased, interest ceases to accrue on the Notes or
-4-
portions thereof called for redemption or accepted for purchase on such date.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption or tendered pursuant to an Offer.
10. PERSONS DEEMED OWNERS. The registered holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENTS AND WAIVERS.
(a) Subject to certain exceptions, the Indenture and the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in principal amount of the then outstanding Notes.
(b) Notwithstanding Section 11(a) above, the Company and the Trustee
may amend or supplement the Indenture or the Notes without the consent of any
Holder to: cure any ambiguity, defect or inconsistency; provide for
uncertificated Notes in addition to or in place of certificated Notes; provide
for the assumption of the Company's obligations to the Holders in the event of
any Disposition involving the Company that is permitted under Article V and in
which the Company is not the Surviving Person; make any change that would
provide any additional rights or benefits to Holders or not adversely affect the
interests of any Holder; or comply with the requirements of the Commission in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
(c) Certain provisions of the Indenture cannot be amended,
supplemented or waived without the consent of each Holder of Notes affected.
Additionally, certain provisions of the Indenture cannot be amended or modified
without the consent of at least a majority of the outstanding principal amount
of each class of Senior Debt of the Company outstanding.
-5-
12. DEFAULTS AND REMEDIES. Events of Default include: default for 30
days in the payment when due of interest on the Notes; default in the payment
when due of principal on the Notes; failure to perform or comply with certain
covenants, agreements or warranties in the Indenture which failure continues for
30 days after receipt of notice from the Trustee or Holders of at least 25% of
the outstanding Notes; failure to perform or comply with other covenants,
agreements or warranties in the Indenture which failure continues for 60 days
after receipt of notice from the Trustee or Holders of at least 25% of the
outstanding Notes; defaults under and acceleration prior to maturity, or failure
to pay at maturity, of certain other Indebtedness; except as permitted under the
Indenture, any Subsidiary Guarantee shall cease for any reason to be in full
force and effect; certain judgments that remain undischarged; dispositions by
holders of certain Indebtedness of assets of the Company, any Subsidiary
Guarantor or any other Subsidiary; and certain events of bankruptcy or
insolvency involving the Company, any Subsidiary Guarantor or any other
Subsidiary. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may declare all
outstanding Notes to be due and payable immediately in an amount equal to the
principal amount of and premium on, if any, such Notes, plus any accrued and
unpaid interest; PROVIDED, HOWEVER, that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, the principal amount of
and premium on, if any, and any accrued and unpaid interest on, the Notes
becomes due and payable immediately without further action or notice. Subject
to certain exceptions, Holders of a majority in aggregate principal amount of
the then outstanding Notes may 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 it by the Indenture; PROVIDED that the Trustee may refuse
to follow any direction that conflicts with law or the Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders, or
would involve the Trustee in personal liability. The Trustee may withhold from
Holders notice of any continuing default (except a payment Default) if it
determines that such withholding is in their interests.
13. SUBSIDIARY GUARANTEES. Payment of principal, premium, if any, and
interest (including interest on overdue principal and overdue interest, to the
extent lawful) on the Notes and all other Obligations of the Company to the
Holders or the Trustee under the Indenture and the Notes is, jointly and
severally, unconditionally guaranteed by each of the Subsidiary Guarantors
pursuant to and subject to the terms of Article XI of the Indenture.
14. SUBORDINATION.
(a) All Obligations owed under and in respect of the Notes are
subordinated in right of payment, to the extent and in the manner provided in
Article X of the Indenture, to the prior payment in full in cash of all
Obligations owed under and respect of all Senior Debt of the Company, and the
subordination of the Notes is for the
-6-
benefit of all holders of all Senior Debt of the Company, whether outstanding on
the Issue Date or issued thereafter. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination.
(b) All Obligations owed under and in respect of the Subsidiary
Guarantees shall be and subordinated in right of payment, to the extent and in
the manner provided in Article XI of the Indenture, to the priori payment in
full in cash of all Obligations owed under and in respect of all Guarantor
Senior Debt of the Subsidiary Guarantors, and the subordination of the
Subsidiary Guarantees is for the benefit of all holders of Guarantor Senior
Debt, whether outstanding on the Issue Date or issued thereafter. The
Subsidiary Guarantors agree and each Holder, by accepting a Subsidiary Guarantee
agrees, to the subordination.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Company or any of its Affiliates with the same rights it would have if
it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligation of the Company under the Indenture or the Notes. Each Holder by
accepting a Note waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the issuance of the
Notes.
17. SUCCESSOR SUBSTITUTED. Upon the merger, consolidation or other
business combination involving the Company or one or more Subsidiary Guarantors
of the Company, or upon the sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the Company's or a Subsidiary
Guarantor's properties and assets, the Surviving Person (if other than the
Company or a Subsidiary Guarantor, as the case may be) resulting from such
disposition shall assume all of the obligations of the Company or the Subsidiary
Guarantor under the Notes, the Subsidiary Guarantee, as applicable, and the
Indenture and shall succeed to, and be substituted for, and may exercise every
right and power of, the Company or the Subsidiary Guarantor under the Indenture
with the same effect as if such Surviving Person had been named as the Company
or a Subsidiary Guarantor in the Indenture.
18. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
19. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
-7-
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
21. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the securities.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture, which has in it the text of this Note in larger
type. Request may be made to: Gray Communications Systems, Inc., 126 North
Washington Street, Albany, Georgia 31701, Attention: [Investor Relations].
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
Please insert social security or other identifying number of assignee
- --------------------------------------------------------------------------------
Please print or typewrite name and address including
zip code of assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________ to transfer said Note on the books of
the Company. The Agent may substitute another to act for him.
Date: ______________ Your Signature: _________________________________
(Sign exactly as your name
appears on the other side of this
Note)
Signature Guarantee: _____________________________
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Guarantor, jointly and severally, unconditionally guarantees, to the
extent set forth in the Indenture and subject to the provisions of the Indenture
that: (i) the principal of, premium, if any, and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, to the extent lawful, and all other Obligations of the Company to
the Holders or the Trustee under the Indenture and the Notes will be promptly
paid in full, all in accordance with the terms of the Indenture and the Notes;
and (ii) in case of any extension of time of payment or renewal of any Notes or
any of such other Obligations, that the Notes will be promptly paid in full when
due in accordance with the terms of such extension or renewal, whether at stated
maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holders of Notes and the Trustee
pursuant to this guarantee and the Indenture are set forth in Article XI of the
Indenture, to which reference is hereby made.
Guarantors:
THE ALBANY HERALD PUBLISHING
COMPANY, INC.
By:
-------------------------------------
Name:
Title:
THE SOUTHWEST GEORGIA SHOPPER, INC.
By:
-------------------------------------
Name:
Title:
WALB-TV, INC.
By:
Name:
Title:
WJHG-TV, INC.
By:
-------------------------------------
Name:
Title:
KTVE, INC.
By:
-------------------------------------
Name:
Title:
GRAY KENTUCKY TELEVISION, INC.
By:
-------------------------------------
Name:
Title:
WRDW-TV, INC.
By:
-------------------------------------
Name:
Title:
THE ROCKDALE CITIZEN PUBLISHING
COMPANY
By:
-------------------------------------
Name:
Title:
GRAY REAL ESTATE & DEVELOPMENT
COMPANY
By:
-------------------------------------
Name:
Title:
GRAY TRANSPORTATION COMPANY, INC.
By:
-------------------------------------
Name:
Title:
WALB LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WJHG LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WKYT LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WRDW LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WYMT LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WKXT LICENSEE CORP.
By:
-------------------------------------
Name:
Title:
WCTV OPERATING CORP.
By:
-------------------------------------
Name:
Title:
WKXT-TV, INC.
By:
-------------------------------------
Name:
Title:
GRAY TELEVISION MANAGEMENT, INC.
By:
-------------------------------------
Name:
Title: