EXHIBIT 4.11
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JACOR COMMUNICATIONS COMPANY
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
PARENT GUARANTOR
AND
UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY
GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK
TRUSTEE
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INDENTURE
Dated as of December 17, 1996
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$170,000,000
93/4% Senior Subordinated Notes due 2006
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
SECTION 1.1. Definitions......................................... 1
SECTION 1.2. Incorporation by Reference of TIA................... 30
SECTION 1.3. Rules of Construction............................... 30
ARTICLE II
THE SECURITIES................................ 31
SECTION 2.1. Form and Dating..................................... 31
SECTION 2.2. Execution and Authentication........................ 32
SECTION 2.3. Registrar and Paying Agent.......................... 33
SECTION 2.4. Paying Agent to Hold Assets
in Trust............................................ 34
SECTION 2.5. Securityholder Lists................................ 34
SECTION 2.6. Transfer and Exchange............................... 35
SECTION 2.7. Replacement Securities.............................. 38
SECTION 2.8. Outstanding Securities.............................. 39
SECTION 2.9. Treasury Securities................................. 39
SECTION 2.10. Temporary Securities................................ 40
SECTION 2.11. Cancellation........................................ 40
SECTION 2.12. Defaulted Interest.................................. 40
SECTION 2.13. CUSIP Numbers....................................... 42
ARTICLE III
REDEMPTION..................................42
SECTION 3.1. Right of Redemption................................. 42
SECTION 3.2. Notices to Trustee and
Paying Agent...................................... 43
SECTION 3.3. Selection of Securities to
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Be Redeemed....................................... 43
SECTION 3.4. Notice of Redemption................................ 44
SECTION 3.5. Effect of Notice of Redemption...................... 45
SECTION 3.6. Deposit of Redemption Price......................... 45
SECTION 3.7. Securities Redeemed in Part......................... 46
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ARTICLE IV
COVENANTS.................................. 46
SECTION 4.1. Payment of Securities............................... 46
SECTION 4.2. Maintenance of Office or Agency..................... 47
SECTION 4.3. Limitation on Restricted Payments................... 48
SECTION 4.4. Corporate Existence................................. 49
SECTION 4.5. Payment of Taxes and Other Claims................... 49
SECTION 4.6. Maintenance of Properties
and Insurance..................................... 50
SECTION 4.7. Compliance Certificate; Notice
of Default........................................ 50
SECTION 4.8. Reports............................................. 51
SECTION 4.9. Limitation on Status as
Investment Company................................ 52
SECTION 4.10. Limitation on Transactions
with Affiliates................................... 52
SECTION 4.11. Limitation on Incurrence of
Additional Indebtedness and
Disqualified Capital Stock........................ 53
SECTION 4.12 Limitations on Dividends
and Other Payment Restrictions
Affecting Subsidiaries............................ 53
SECTION 4.13. Limitations on Layering
Indebtedness; Liens............................... 55
SECTION 4.14. Limitation on Sale of Assets
and Subsidiary Stock.............................. 55
SECTION 4.15. Limitation on Asset Swaps........................... 61
SECTION 4.16. Limitation on Lines of Business..................... 62
SECTION 4.17. Restriction on Sale and Issuance
of Subsidiary Stock............................... 62
SECTION 4.18. Waiver of Stay, Extension or
Usury Laws........................................ 62
SECTION 4.19. Dissolution of Excluded
Subsidiaries; Restriction on
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Transfers to Excluded Subsidiaries................ 63
ARTICLE V
SUCCESSOR CORPORATION............................ 63
SECTION 5.1. Limitation on Merger, Sale or
Consolidation..................................... 63
SECTION 5.2. Successor Corporation Substituted................... 64
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES........................ 64
SECTION 6.1. Events of Default................................... 64
SECTION 6.2. Acceleration of Maturity Date;
Rescission and Annulment.......................... 66
SECTION 6.3. Collection of Indebtedness
and Suits for Enforcement
by Trustee........................................ 68
SECTION 6.4. Trustee May File Proofs of
Claim............................................. 69
SECTION 6.5. Trustee May Enforce Claims
Without Possession of
Securities........................................ 70
SECTION 6.6. Priorities.......................................... 71
SECTION 6.7. Limitation on Suits................................. 71
SECTION 6.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest...................................... 72
SECTION 6.9. Rights and Remedies Cumulative...................... 73
SECTION 6.10. Delay or Omission Not Waiver........................ 73
SECTION 6.11. Control by Holders.................................. 73
SECTION 6.12. Waiver of Past Default.............................. 74
SECTION 6.13. Undertaking for Costs............................... 74
SECTION 6.14. Restoration of Rights and
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Remedies.......................................... 75
ARTICLE VII
TRUSTEE................................... 75
SECTION 7.1. Duties of Trustee................................... 75
SECTION 7.2. Rights of Trustee................................... 77
SECTION 7.3. Individual Rights of Trustee........................ 78
SECTION 7.4. Trustee's Disclaimer................................ 78
SECTION 7.5. Notice of Default................................... 79
SECTION 7.6. Reports by Trustee to Holders....................... 79
SECTION 7.7. Compensation and Indemnity.......................... 79
SECTION 7.8. Replacement of Trustee.............................. 81
SECTION 7.9. Successor Trustee by Merger, Etc.................... 82
SECTION 7.10. Eligibility; Disqualification....................... 82
SECTION 7.11. Preferential Collection of
Claims Against the Company........................ 82
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE............. 83
SECTION 8.1. Discharge; Option to Effect
Legal Defeasance or Covenant
Defeasance........................................ 83
SECTION 8.2. Legal Defeasance and Discharge...................... 83
SECTION 8.3. Covenant Defeasance................................. 84
SECTION 8.4. Conditions to Legal or Covenant
Defeasance........................................ 85
SECTION 8.5. Deposited Cash and U.S.
Government Obligations to
be Held in Trust; Other
Miscellaneous Provisions.......................... 87
SECTION 8.6. Repayment to the Company............................ 87
SECTION 8.7. Reinstatement....................................... 88
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS..................... 89
SECTION 9.1. Supplemental Indentures
Without Consent of Holders........................ 89
SECTION 9.2. Amendments, Supplemental
Indentures and Waivers
with Consent of Holders........................... 90
SECTION 9.3. Compliance with TIA................................. 91
SECTION 9.4. Revocation and Effect of Consents....................92
SECTION 9.5. Notation on or Exchange of
Securities........................................ 93
SECTION 9.6. Trustee to Sign Amendments, Etc..................... 93
ARTICLE X
SUBORDINATION................................ 93
SECTION 10.1. Securities Subordinated to
Senior Debt....................................... 93
SECTION 10.2. No Payment on Securities in
Certain Circumstances............................. 94
SECTION 10.3. Securities Subordinated to Prior
Payment of All Senior Debt on
Dissolution, Liquidation or
Reorganization.................................... 96
SECTION 10.4. Securityholders to Be Subrogated
to Rights of Holders of
Senior Debt....................................... 97
SECTION 10.5. Obligations of the Company and
the Guarantors Unconditional...................... 98
SECTION 10.6. Trustee Entitled to Assume
Payments Not Prohibited in
Absence of Notice................................ 100
SECTION 10.7. Application by Trustee of
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Assets Deposited with It......................... 100
SECTION 10.8. Subordination Rights Not
Impaired by Acts or Omissions
of the Company, the Guarantors
or Holders of Senior Debt........................ 100
SECTION 10.9. Securityholders Authorize
Trustee to Effectuate
Subordination of Securities...................... 101
SECTION 10.10. Right of Trustee to Hold
Senior Debt...................................... 101
SECTION 10.11. Article X Not to Prevent Events
of Default....................................... 102
SECTION 10.12. No Fiduciary Duty of Trustee to
Holders of Senior Debt........................... 102
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE.........................102
SECTION 11.1. Repurchase of Securities at
Option of the Holder Upon
a Change of Control...............................102
ARTICLE XII
GUARANTY...................................106
SECTION 12.1. Guaranty............................................106
SECTION 12.2. Execution and Delivery of
Guaranty..........................................109
SECTION 12.3. Subsidiary Guarantors...............................109
SECTION 12.4. Guarantor May Consolidate, Etc.,
on Certain Terms..................................110
SECTION 12.5. Release of Guarantors...............................111
SECTION 12.6. Certain Bankruptcy Events...........................112
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ARTICLE XIII
MISCELLANEOUS................................112
SECTION 13.1. TIA Controls........................................112
SECTION 13.2. Notices.............................................112
SECTION 13.3. Communications by Holders with
Other Holders.....................................114
SECTION 13.4. Certificate and Opinion as to
Conditions Precedent..............................114
SECTION 13.5. Statements Required in
Certificate or Opinion............................114
SECTION 13.6. Rules by Trustee, Paying Agent,
Registrar.........................................115
SECTION 13.7. Non-Business Days...................................115
SECTION 13.8. Governing Law.......................................115
SECTION 13.9. No Adverse Interpretation of
Other Agreements..................................116
SECTION 13.10. No Recourse against Others..........................116
SECTION 13.11. Successors..........................................117
SECTION 13.12. Duplicate Originals.................................117
SECTION 13.13. Severability........................................117
SECTION 13.14. Table of Contents, Headings, Etc....................117
SIGNATURES.........................................................118
Exhibit A Form of Security..............................................A-1
Annex I - SELECTED DEFINITIONS AND SECTIONS
FROM THE CITICASTERS INDENTURE..............................Annex - 1
viii
INDENTURE, dated as of December 17, 1996, by and among Jacor Communications
Company, a Florida corporation (the "Company"), Jacor Communications, Inc., a
Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors
referred to below and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1. DEFINITIONS.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section 4.14.
"ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital
Stock of any person existing at the time such person becomes a Subsidiary of the
Company, including by designation, or is merged or consolidated into or with
either of the Company or one of its Subsidiaries; provided, that such
Indebtedness was not incurred in anticipation of, or in connection with, and was
outstanding prior to such person becoming a Subsidiary of the Company.
"ACQUISITION" means the purchase or other acquisition of any person or
substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, the term "control" means the power to direct
the
management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, PROVIDED, that, a Beneficial Owner of 10% or more of the total
voting power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to
constitute control.
"AFFILIATE TRANSACTION" shall have the meaning specified in Section
4.10.
"AGENT" means any authenticating agent,
Registrar, Paying Agent or transfer agent.
"ASSET SALE" shall have the meaning specified in Section 4.14.
"ASSET SALE DATE" shall have the meaning
specified in Section 4.14.
"ASSET SALE OFFER" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PERIOD" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PRICE" shall have the meaning specified in Section
4.14.
"ASSET SWAP" means the execution of a definitive agreement, subject
only to regulatory approval and other customary closing conditions, that the
Company in good faith believes will be satisfied, for a substantially concurrent
purchase and sale, or exchange, of Productive Assets between the Company or any
of its Subsidiaries and another person or group of affiliated persons; provided
that any amendment to
2
or waiver of any closing condition which individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
"AVERAGE LIFE" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of (a)
the product of the number of years from the date of determination to the date or
dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the
definition of Change of Control has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act (as in effect on the Issue Date) whether or not
applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"BOARD OF DIRECTORS" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"BOARD RESOLUTION" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such or the executive committee of such
Board of Directors of such person.
3
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CAPITAL LEASE" means a lease, the payments on which would be
capitalized for financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means rental obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as determined
in accordance with GAAP.
"CASH" or "cash" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"CASH EQUIVALENT" means (i) securities issued directly or fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) or (ii) time deposits and
certificates of deposit with, and commercial paper issued by the parent
corporation of, any domestic commercial bank of recognized standing having
capital and surplus in excess of $500.0 million and commercial paper issued by
others rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equiva-
4
lent thereof by Moody's Investors Service, Inc. and in each case maturing within
one year after the date of acquisition.
"CITICO" means Citicasters Co., an Ohio corporation and a wholly owned
subsidiary of the Company.
"CHANGE OF CONTROL" means any transaction or series of transactions in
which any of the following occurs:
(a) prior to a Citicasters Securities Event,
(i) any person or group (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Sections 13(d) and 14(d) of the Exchange Act), other than Zell/Chilmark Fund
L.P. or any of its Affiliates, becomes the direct or indirect "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of (A) greater than 50% of the
total voting power (on a fully diluted basis as if all convertible securities
had been converted) entitled to vote in the election of directors of the Company
or CitiCo, or the surviving person (if other than the Company), or (B) greater
than 20% of the total voting power (on a fully diluted basis as if all
convertible securities had been converted) entitled to vote in the election of
directors of the Company or CitiCo, or the surviving person (if other than the
Company), and such person or group has the ability to elect, directly or
indirectly, a majority of the members of the Board of Directors of the Company;
or
(ii) the Company or CitiCo consolidates with or merges into
another person, another person consolidates with or merges into the Company or
CitiCo, the Company or CitiCo issues shares of its Capital Stock or all or
substantially all of the assets of the Company or CitiCo are sold, assigned,
conveyed, transferred, leased or otherwise disposed of to any person as an
entirety or substantially as an entirety in one transaction or a series of
related transactions and the effect of such consolidation, merger, issuance
5
or sale is as described in clause (i) above. Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred by virtue of (I) the Company
or any of its employee benefit or stock plans filing (or being required to file
after the lapse of time) a Schedule 13D or 14D-1 (or any successor or similar
schedule, form or report under the Exchange Act) or (II) the purchase by one or
more underwriters of Capital Stock of the Company in connection with a Public
Offering; and,
(b) upon or following a Citicasters Securities Event,
(i) any merger or consolidation of the Company with or into any
person or any sale, transfer or other conveyance, whether direct or indirect, of
all or substantially all of any of the assets of the Company, on a consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such transaction(s), any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act,
whether or not applicable) (other than an Excluded Person) is or becomes the
"beneficial owner," directly or indirectly, of more than 50% of the total voting
power in the aggregate normally entitled to vote in election of directors,
managers, or trustees, as applicable, of the transferee(s) or surviving entity
or entities,
(ii) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of Capital Stock of the Company then outstanding
normally entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months after the Issue
Date, individuals who at the begin-
6
ning of any such 12-month period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of JCC was approved by a vote of 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) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in Section
11.1.
"CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.1.
"CITICASTERS" means Citicasters Inc., a Florida corporation and
predecessor to the Company.
"CITICASTERS ASSET SALE REPURCHASE AMOUNT" shall have the meaning set
forth in Annex I hereto.
"CITICASTERS INDENTURE" means the indenture which governs the terms
and provisions of the Citicasters Securities, as amended or supplemented from
time to time in accordance with the terms thereof.
"CITICASTERS SECURITIES" means the 93/4% Senior Subordinated Notes due
February 15, 2004 issued by Citicasters pursuant to an indenture dated as of
February
7
18, 1994 between Great American Communications Company, a Florida corporation
(and predecessor to Citicasters), and Shawmut Bank Connecticut, National
Association as trustee; as amended by the First Supplemental Indenture dated as
of August 22, 1994 between Citicasters and Shawmut Bank Connecticut, National
Association as trustee; as amended by the Second Supplemental Indenture dated as
of June 6, 1996 between Citicasters and Fleet National Bank (formerly Shawmut
Bank Connecticut, National Association) as Trustee.
"CITICASTERS SECURITIES ASSET SALE OFFER" means an offer to purchase
the Citicasters Securities in accordance with the procedures set forth in Annex
I hereto.
"CITICASTERS SECURITIES EVENT" means (x) the maturity of the
Citicasters Securities, (y) the date upon which defeasance of the Citicasters
Securities becomes effective or (z) the date on which there are no longer any
Citicasters Securities outstanding under the terms of the governing indenture.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the SEC.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"CONSOLIDATED" or "consolidated" means determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the
8
extent deducted from net revenues in determining Consolidated Net Income),
without duplication, the sum of (i) Consolidated income tax expense, (ii)
Consolidated depreciation and amortization expense, provided that consolidated
depreciation and amortization of a Subsidiary that is a less than wholly owned
Subsidiary shall only be added to the extent of the equity interest of the
Company in such Subsidiary, (iii) other noncash charges (including amortization
of goodwill and other intangibles), (iv) Consolidated Fixed Charges, and less
the amount of all cash payments made by such person or any of its Subsidiaries
during such period to the extent such payments relate to non-cash charges that
were added back in determining Consolidated EBITDA for such period or any prior
period.
"CONSOLIDATED FIXED CHARGES" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or guaranteed) by such person or
any of its Consolidated Subsidiaries in respect of Preferred Stock (other than
by Subsidiaries of such person to such person or such person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable
9
to any Indebtedness represented by the guaranty by such person or a Subsidiary
of such person of an obligation of another person shall be deemed to be the
interest expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains or losses which are
either noncash or extraordinary (as determined in accordance with GAAP) or are
either unusual or nonrecurring (including any gain from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock), (b) the net income, if positive, of any
person, other than a wholly owned Consolidated Subsidiary, in which such person
or any of its Consolidated Subsidiaries has an interest, except to the extent of
the amount of any dividends or distributions actually paid in cash to such
person or a wholly owned Consolidated Subsidiary of such person during such
period, but in any case not in excess of such person's PRO RATA share of such
person's net income for such period, (c) the net income or loss of any person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition, (d) the net income, if positive, of any of such person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary.
"CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement reporting
10
purposes with the financial statements of such person in accordance with GAAP.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3.
"CREDIT FACILITY" means the Credit Agreement dated as of June 12, 1996
by and among Chemical Bank, as Administrative Agent, Banque Paribas, as
Documentation Agent, and Bank of America, Illinois, as Syndication Agent,
certain financial institutions from time to time party thereto, including any
related notes, guarantees, collateral documents, instruments, letters of credit,
reimbursement obligations and other agreements executed by or binding on the
Company, any of its Subsidiaries and/or the Parent Guarantor (or any successors
or assigns) in connection therewith (collectively, the "Related Documents"), as
such Credit Agreement and/or Related Documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to time whether
or not with the same agent, trustee, representative lenders or holders, and,
subject to the proviso to the next succeeding sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Facility" shall include agreements in respect of
Interest Swap and Hedging Obligations with lenders (or affiliates thereof) party
to the Credit Facility and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement or modification in
whole or in part to any Credit Facility and all refundings, refinancings and
replacements in whole or in part of any Credit Facility, including, without
limitation, any agreement or agreements (i) extending the maturity of any
Indebtedness incurred thereunder or contemplated thereby, (ii) adding or
deleting borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness incurred thereunder or available to be borrowed thereunder,
provided that on the date such Indebtedness is incurred it would be permitted by
paragraph
11
(f) under the definition of Permitted Indebtedness, or (iv) otherwise altering
the terms and conditions thereof.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.12.
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b),
with respect to any person, Equity Interests of such person that, by its terms
or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Securities, and (b) with respect to
any Subsidiary of such person (including with respect to any Subsidiary of the
Company), any Equity
12
Interests other than any common equity with no preference, privileges, or
redemption or repayment provisions.
"DTC" shall have the meaning specified in Section 2.3.
"EQUITY INTEREST" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EVENT OF LOSS" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"EXCESS PROCEEDS" shall have the meaning specified in Section 4.14.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related
Persons of such person.
"EXCLUDED SUBSIDIARY" means each of Jacor National Corp., WIBX
Incorporated, Marathon Communications, Inc. and Jacor Broadcasting of Idaho,
Inc., an Idaho corporation.
13
"EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee
compensation arrangements approved by a majority of independent (as to such
transactions) members of the Board of Directors of the Company, (b) dividends
permitted under Section 4.3 of this Indenture payable, in form and amount, on a
PRO RATA basis to all holders of Common Stock of the Parent Guarantor, (c)
transactions solely between the Company and any of its Wholly owned Subsidiaries
or solely among Wholly owned Subsidiaries of the Company, and (d) payments to
Zell/Chilmark Fund L.P or its Affiliates for reasonable and customary fees and
expenses for financial advisory and investment banking services provided to the
Parent Guarantor and the Company, and (e) payments to the Parent Guarantor made
in accordance with the Tax Sharing Agreement.
"EXISTING ASSETS" means assets of the Company existing at the Issue
Date (other than cash, Cash Equivalents or inventory held for resale in the
ordinary course of business) and including proceeds of any sale of such assets
and assets acquired in whole or in part with proceeds from the sale from any
such assets.
"EXISTING INDEBTEDNESS" means, with respect to the Company,
Indebtedness existing or outstanding at the Issue Date.
"FAIR MARKET VALUE" or "FAIR MARKET VALUE" means, with respect to any
assets or properties, the amount at which such assets or properties would change
hands between a willing buyer and a willing seller, within a commercially
reasonable time, each having reasonable knowledge of the relevant facts, neither
being under a compulsion to sell or buy, as such amount is determined by (i) the
Board of Directors of either of the Company acting in good faith or (ii) an
appraisal or valuation firm of national or regional standing selected by the
Company, with experience in the appraisal or valuation of properties or assets
of the type for which Fair Market Value is being determined.
14
"FINAL PUT DATE" shall have the meaning specified in Section 4.14.
"FUTURE SUBSIDIARY GUARANTOR" shall have the meaning specified in
Section 12.3.
"GAAP" means United States 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 approved by a significant segment of the
accounting profession as in effect on the Issue Date unless otherwise specified.
"GLOBAL SECURITY" means a Security that contains the paragraph and
schedule referred to in footnotes 1 and 2, respectively, in the form of Security
attached hereto as Exhibit A.
"GUARANTOR" means (i) the Parent Guarantor identified in the following
sentence and (ii) any Subsidiary Guarantors that are or become Guarantors
pursuant to the terms of this Indenture, but excluding any Persons whose
guarantees have been released pursuant to the terms of this Indenture. The
Parent Guarantor is Jacor Communications, Inc., a Delaware corporation.
"GUARANTY" shall have the meaning provided in Section 12.1.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a Security
is registered on the Registrar's books.
"INCUR" or "INCUR" shall have the meaning specified in Section 4.11.
15
"INCURRENCE DATE" shall have the meaning specified in Section 4.11.
"INDEBTEDNESS" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such any person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors, (iv) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (v)
relating to any Capitalized Lease Obligation, or (vi) evidenced by a letter of
credit or a reimbursement obligation of such person with respect to any letter
of credit; (b) all net obligations of such person under Interest Swap and
Hedging Obligations; (c) all liabilities and obligations of others of the kind
described in the preceding clause (a) or (b) that such person has guaranteed or
that is otherwise its legal liability or which are secured by any assets or
property of such person and all obligations to purchase, redeem or acquire any
Equity Interests; and (d) all Disqualified Capital Stock of such person (valued
at the greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer (or managing
general partner of the issuer) of such Disqualified Capital Stock.
16
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INTEREST PAYMENT DATE" means the stated due date of an installment of
interest on the Securities.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"INVESTMENT" by any person in any other person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other person or any agreement to make any such acquisition; (b) the making
by such person of any deposit with, or advance, loan or other extension of
credit to, such other person (including the purchase of property from another
person subject to an understanding or agreement, contingent or otherwise, to
resell such property to such other person) or any commitment to make any such
advance, loan or extension (but excluding accounts receivable or deposits
arising in the ordinary course of business); (c) other than guarantees of
Indebtedness of the Company or any Guarantors to the extent permit-
17
ted by the covenant "Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock" or the definition of Permitted Indebtedness, the
entering into by such person of any guarantee of, or other credit support or
contingent obligation with respect to, Indebtedness or other liability of such
other person (other than the endorsement of instruments for deposit or
collection in the ordinary course of business); and (d) the making of any
capital contribution by such person to such other person.
"ISSUE DATE" means the date of first issuance of the Securities under
this Indenture.
"JACOR" means Jacor Communications, Inc., a Delaware corporation.
"JUNIOR SECURITY" means any Qualified Capital Stock and any
Indebtedness of the Company or a Guarantor, as applicable, that is subordinated
in right of payment to Senior Debt at least to the same extent as the Securities
or the Guarantees, as applicable, and has no scheduled installment of principal
due, by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities; provided, that in the case of subordination in
respect of Senior Debt under the Credit Facility, "Junior Security" shall mean
any Qualified Capital Stock and any Indebtedness of the Company or the
Guarantors, as applicable, that (i) has a final maturity date occurring after
the final maturity date of, all Senior Debt outstanding under the Credit
Facility on the date of issuance of such Qualified Capital Stock or
Indebtedness, (ii) is unsecured, (iii) has an Average Life longer than the
security for which such Qualified Capital Stock or Indebtedness is being
exchanged, and (iv) by their terms or by law are subordinated to Senior Debt
outstanding under the Credit Facility on the date of issuance of such Qualified
Capital Stock or Indebtedness at least to the same extent as the Securities.
18
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2.
"LEVERAGE RATIO" of any person on any date of determination (the
"Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of the
aggregate outstanding amount of Indebtedness and Disqualified Capital Stock of
such person and its Subsidiaries as of the date of calculation on a consolidated
basis in accordance with GAAP to (b) the aggregate amount of Consolidated EBITDA
of such person attributable to continuing operations and business (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period; PROVIDED, that for purposes of such
calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Leverage Ratio shall be
assumed to have occurred on the first day of the Reference Period, (iii) the
incurrence of any Indebtedness or issuance of any Disqualified Capital Stock
during the Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date (and the application of the proceeds therefrom to
the extent used to refinance or retire other Indebtedness) shall be assumed to
have occurred on the first day of such Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a PRO FORMA basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless such
person or any of its Subsidiaries is a party to an Interest Swap or Hedging
Obligation (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher or lower)
shall be used.
19
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"MATURITY DATE" means, when used with respect to the Securities, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of the Indenture regarding
acceleration of Indebtedness or any Change of Control Offer or Asset Sale
Offer).
"NET CASH PROCEEDS" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Capital
Stock and by the Company and its Subsidiaries in respect of an Asset Sale or an
Event of Loss plus, in the case of an issuance of Qualified Capital Stock of the
Company upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of cash
originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary), expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale, Event of Loss or sale of Qualified
Capital Stock, and, in the case of an Asset Sale only, less an amount (estimated
reasonably and in good faith by the Company or the amount actually incurred, if
greater) of income, franchise, sales and other applicable taxes required to be
paid by the Company or any of its Subsidiaries in connection with such Asset
Sale.
20
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
6.1(3).
"OBLIGATION" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Securities or the Indenture.
"OFFICER" means, with respect to the Company or the Guarantors, the
Chief Executive Officer, the President, any Senior Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company or Guarantor (as applicable).
"OFFICERS' CERTIFICATE" means, with respect to the Company or the
Guarantors, a certificate signed by two Officers or by an Officer and an
Assistant Secretary of the Company or the Guarantors (as applicable) and
otherwise complying with the requirements of Sections 13.4 and 13.5, and
delivered to the Trustee or an Agent, as applicable.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee (which may include counsel to the Trustee
or the Company including an employee of the Company) or an Agent, as applicable,
complying with the requirements of Sections 13.4 and 13.5, and delivered to the
Trustee or an Agent, as applicable.
"OUTSTANDING" as used with reference to the Securities shall have the
meaning specified in Section 2.8 hereof.
"PARENT" or "PARENT" of any person means a corporation which at the
date of determination owns, directly or
21
indirectly, a majority of the Voting Stock of such person or of a Parent of
such person.
"PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware
corporation.
"PAYING AGENT" has the meaning specified in Section 2.3.
"PAYMENT DEFAULT" has the meaning specified in Section 10.2.
"PAYMENT NOTICE" shall have the meaning set out in Section 10.2.
"PERMITTED INDEBTEDNESS" means any of the following:
(a) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit and performance
bonds (to the extent that such incurrence does not result in the incurrence
of any obligation to repay any obligation relating to borrowed money of
others), all in the ordinary course of business in accordance with customary
industry practices, in amounts and for the purposes customary in the
Company's industry; provided, that the aggregate principal amount outstanding
of such Indebtedness (including any Indebtedness issued to refinance, refund
or replace such Indebtedness) shall at no time exceed $5.0 million;
(b) the Company may incur Indebtedness to any Wholly owned
Subsidiary Guarantor, and any Wholly owned Subsidiary Guarantor may incur
Indebtedness to any other Wholly owned Subsidiary Guarantor or to the
Company; provided, that in the case of Indebtedness of the Company, such
obligations shall be unsecured and subordinated in all respects to the
Company's obligations pursuant to the Securities and the date of any event
that causes such Subsidiary
22
Guarantor to no longer be a Wholly owned Subsidiary shall be an Incurrence
Date;
(c) the Company and the Guarantors may incur Indebtedness
evidenced by the Securities and the Guarantees and represented by the
Indenture up to the amounts specified therein as of the date hereof;
(d) the Company and the Guarantors, as applicable, may
incur Refinancing Indebtedness with respect to any Indebtedness or
Disqualified Capital Stock, as applicable, which Indebtedness was incurred
pursuant to the Leverage Ratio in Section 4.11 hereof or clause (c) of this
definition;
(e) the Company and its Subsidiaries may incur Indebtedness
in an aggregate amount outstanding at any time (including any Indebtedness
issued to refinance, replace, or refund such Indebtedness) of up to $5.0
million;
(f) the Company and the Guarantors may incur Indebtedness
incurred pursuant to the Credit Facility up to an aggregate principal amount
outstanding (including any Indebtedness issued to refinance, refund or
replace such Indebtedness in whole or in part) at any time of $600.0 million,
plus accrued interest and additional expense and reimbursement obligations
with respect thereto and such additional amounts as may be deemed to be
outstanding in the form of Interest Swap and Hedging Obligations with lenders
(or affiliates thereof) party to the Credit Facility, minus the amount of any
such Indebtedness retired with Net Cash Proceeds from any Asset Sale;
(g) the Company and the Guarantors may incur Indebtedness
under Interest Swap and Hedging Obligations that do not increase the
Indebtedness of the Company other than as a result of fluctuations in
interest or foreign currency exchange rates provided that such Interest Swap
and Hedging Obligations are incurred for the purpose of provid-
23
ing interest rate protection with respect to Indebtedness permitted under the
Indenture or to provide currency exchange protection in connection with
revenues generated in currencies other than U.S. dollars;
(h) Subsidiaries may incur Acquired Indebtedness if the
Company at the time of such incurrence could incur such Indebtedness pursuant
to the Leverage Ratio in Section 4.11; and
(i) the Company and its Subsidiaries may incur Indebtedness
existing on the Issue Date.
"PERMITTED INVESTMENT" means:
(a) Investments in any of the Securities;
(b) Cash Equivalents;
(c) intercompany loans to the extent permitted under clause
(b) of the definition of "Permitted Indebtedness" and intercompany security
agreements relating thereto;
(d) loans, advances or investments in existence on the
Issue Date;
(e) Investments in a person substantially all of whose
assets are of a type generally used in a Related Business (an "Acquired
Person") if, as a result of such Investments, (i) the Acquired Person
immediately thereupon is or becomes a Subsidiary of the Company, or (ii) the
Acquired Person immediately thereupon either (1) is merged or consolidated
with or into the Company or any of its Subsidiaries and the surviving person
is the Company or a Subsidiary of the Company or (2) transfers or conveys all
or substantially all of its assets, or is liquidated into, the Company or any
of its Subsidiaries;
24
(f) Investments in a person with whom the Company or any of
its Subsidiaries have entered into, (i) local market agreements or time
brokerage agreements pursuant to which the Company or any one of its
Subsidiaries programs substantial portions of the broadcast day on such
person's radio broadcast station(s) and sells advertising time during such
program segments for its own account or (ii) joint sales agreements pursuant
to which the Company or any of its Subsidiaries sells substantially all of
the advertising time for such person's radio broadcast station(s);
(g) Investments that are in persons which will have the
purpose of furthering the operations of the Company and its Subsidiaries not
to exceed $10.0 million; and
(h) demand deposit accounts maintained in the ordinary
course of business.
"PERMITTED LIEN" means:
(a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes,
assessments or other charges or levies not yet subject to penalty or which
are being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP as of the date of determination;
(c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect
25
thereto are maintained on the books of the Company in accordance with GAAP as
of the date of determination;
(d) Liens securing the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business and deposits made in the ordinary course of
business to secure obligations of public utilities;
(e) easements, rights-of-way, zoning, building
restrictions, reservations, encroachments, exceptions, covenants, similar
restrictions and other similar encumbrances or title defects which, singly or
in the aggregate, do not in any case materially detract from the value of the
property, subject thereto (as such property is used by the Company or any of
its Subsidiaries) or interfere with the ordinary conduct of the business of
the Company or any of its Subsidiaries;
(f) Liens arising by operation of law in connection with
judgments, provided, that the execution or other enforcement of such Liens is
effectively stayed and that the claims secured thereby are being contested in
good faith by appropriate proceedings;
(g) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation;
(h) Liens securing Indebtedness of a person existing at the
time such person becomes a Subsidiary or is merged with or into the Company
or a Subsidiary or Liens securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior to the date of
such acquisition, merger or consolidation, were
26
not incurred in anticipation thereof, and do not extend to any other assets;
(i) leases or subleases granted to other persons in the
ordinary course of business not materially interfering with the conduct of
the business of the Company or any of its Subsidiaries or materially
detracting from the value of the relative assets of the Company or any of its
Subsidiaries;
(j) Liens arising from precautionary Uniform Commercial
Code financing statement filings regarding operating leases entered into by
the Company or any of its Subsidiaries in the ordinary course of business;
(k) Liens securing Refinancing Indebtedness incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens securing
such refinanced Indebtedness provided that the Indebtedness secured is not
increased and the lien is not extended to any additional assets or property;
(l) Liens in favor of the Administrative Agent pursuant to
the Credit Facility; and
(m) Liens on property of a Subsidiary of the Company
provided that such Liens secure only obligations owing by such Subsidiary to
the Company or another Subsidiary of the Company.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"PLAN OF LIQUIDATION" means a plan that provides for, contemplates
or the effectuation of which is preceded
27
or accompanied by (whether or not substantially contemporaneously) (i) the
sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company otherwise than as an entirety or substantially as
an entirety and (ii) the distribution of all or substantially all of the
proceeds of such sale, lease, conveyance or other disposition and all or
substantially all of the remaining assets of the Company to holders of
Capital Stock of the Company.
"PREFERRED STOCK" as applied to the Capital Stock of any corporation,
means Capital Stock ranking prior to the shares of any other class of Capital
Stock of said corporation as to the payment of dividends or the distribution of
assets on any voluntary or involuntary liquidation.
"PRESENT SUBSIDIARY GUARANTORS" means Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.; Citicasters
Co.; F.M.I. Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.; Georgia
Network Equipment, Inc.; Great American Merchandising Group, Inc.; Great
American Television Productions, Inc.; Inmobilaria Radial, S.A. de C.V.; Jacor
Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.; Jacor
Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor
Broadcasting of Idaho, Inc.; Jacor Broadcasting of Iowa, Inc.;. Jacor
Broadcasting of Knoxville, Inc.; Jacor Broadcasting of Lexington, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor
Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor
Cable, Inc.; Location Productions, Inc.; Location Productions II, Inc.; Noble
Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings,
Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of Colorado, Inc.; Noble
Broadcast of St. Louis, Inc.; Noble Broadcast of San Diego, Inc.; Noble
Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.; Sports Radio
Broadcasting, Inc.; Sports Radio,
28
Inc.; Taft-TCI Satellite Services, Inc.; The River Niger Pictures, Inc.; The
Sy Fischer Company Agency, Inc.; WHOK, Inc.; and VTTV Productions, each a
direct or indirect subsidiary of the Company or any successor entity, whether
by merger, consolidation, change of name or otherwise.
"PRO RATA PORTION" shall have the meaning specified in Section 12.1.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by the
Company and its Subsidiaries in a Related Business.
"PROPERTY" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"PUBLIC OFFERING" means a firm commitment underwritten primary
offering of Capital Stock of the Parent Guarantor or the Company.
"QUALIFIED CAPITAL STOCK" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"QUALIFIED EXCHANGE" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Capital Stock or Indebtedness
of the Company issued on or after the Issue Date with the Net Cash Proceeds
received by the Company from the substantially concurrent sale of Qualified
Capital Stock or any exchange of Qualified Capital Stock for any Capital
Stock or Indebtedness issued on or after the Issue Date.
"RECORD DATE" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such re-
29
demption pursuant to Article III of this Indenture and Paragraph 5 in the
form of Security.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to
Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest to the Redemption Date
(subject to the provisions of Section 3.5).
"REFERENCE PERIOD" with regard to any Person means the four full
fiscal quarters (or such lesser period during which such person has been in
existence) ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Securities or the Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness or Disqualified
Capital Stock (a) issued in exchange for, or the proceeds from the issuance
and sale of which are used substantially concurrently to repay, redeem,
defease, refund, refinance, discharge or otherwise retire for value, in whole
or in part, or (b) constituting an amendment, modification or supplement to,
or a deferral or renewal of ((a) and (b) above are, collectively, a
"Refinancing"), any Indebtedness or Disqualified Capital Stock in a principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
not to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing) the lesser of (i) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
of the Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if
such Indebtedness being Refinanced was issued with an original issue
discount, the accredited value thereof (as determined in accordance with
GAAP) at the time of such Refinancing; provided, that (A) such Refinancing
Indebtedness of any Subsidiary of the Company shall only be used to Refinance
outstanding Indebtedness or Disqualified Capital Stock of such Subsidiary, (B)
such Refinancing Indebtedness shall (x)not have an Average Life shorter than the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less subordinated or junior, if
applicable, to the rights of Holders of the Securities than was the Indebtedness
or Disqualified Capital Stock to be refinanced and (C) such Refinancing
Indebtedness shall have no installment of principal (or redemption payment)
scheduled to come due earlier than the scheduled maturity of any installment of
principal of the Indebtedness or Disqualified Capital Stock to be so refinanced
which was scheduled to come due prior to the Stated Maturity.
"REGISTRAR" shall have the meaning specified in Section 2.3.
"RELATED BUSINESS" means the business conducted (or proposed to be
conducted) by the Company and its Subsidiaries as of the Issue Date and any and
all businesses that in the good faith judgment of the Board of Directors of the
Company are materially related businesses.
"RELATED PERSON" means any person who controls, is controlled by or is
under common control with an Excluded Person; PROVIDED that for purposes of this
definition "control" means the beneficial ownership of more than 50% of the
total voting power of a person normally entitled to vote in the election of
directors, managers or trustees, as applicable of a person.
"REPRESENTATIVE" means Chemical Bank in its capacity as Administrative
Agent for lenders pursuant to the New Credit Facility, and not in its individual
capacity as a lender, and any successor Administrative Agent appointed pursuant
to the Credit Facility.
"REQUIRED LENDERS" means lenders under the Credit Facility whose PRO
RATA shares (as defined therein), pursu-
31
ant to the Credit Facility, are in the aggregate at least 66 2/3%.
"RESTRICTED INVESTMENT" means, in one or a series of related
transactions any Investment other than investments in Permitted Investments;
provided, however, that a merger of another person with or into the Company or a
Subsidiary Guarantor shall not be deemed to be a Restricted Investment so long
as the surviving entity is the Company or a direct Wholly owned Subsidiary
Guarantor.
"RESTRICTED PAYMENT" means with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any parent or Subsidiary of such person, (b)
any payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such person or any Subsidiary or
parent of such person, (c) other than with the proceeds from the substantially
concurrent sale of, or in exchange for, Refinancing Indebtedness any purchase,
redemption, or other acquisition or retirement for value of, any payment in
respect of any amendment of the terms of or any defeasance of, any Subordinated
Indebtedness, directly or indirectly, by such person or a parent or Subsidiary
of such person prior to the scheduled maturity, any scheduled repayment of
principal, or scheduled sinking fund payment, as the case may be, of such
Indebtedness and (d) any Restricted Investment by such person; provided,
however, that the term "Restricted Payment" does not include (i) any dividend,
distribution or other payment on or with respect to Capital Stock of an issuer
to the extent payable solely in shares of Qualified Capital Stock of such
issuer; (ii) any dividend, distribution or other payment to the Company, or to
any Wholly owned Subsidiary Guarantor, by any of the Subsidiaries of the
Company; or (iii) loans or advances to any Guarantor the proceeds of which are
used by such Subsidiary Guarantor in a Related Business activity of such
Subsidiary Guarantor.
32
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the 9 3/4% Senior Subordinated Notes due 2006
issued under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SECURITIES CUSTODIAN" means the Registrar, as custodian with respect
to the Securities in global form, or any successor entity thereto.
"SECURITYHOLDER" or "HOLDER" means any person in whose name a Security
is registered on the Registrar's books.
"SENIOR DEBT" of the Company or any Guarantor means Indebtedness
(including any monetary obligation in respect of the Credit Facility, and
interest, whether or not such interest is allowed or allowable, accruing on
Indebtedness incurred pursuant to the Credit Facility at the contracted-for rate
whether accruing on, before or after the commencement of any proceeding under
any bankruptcy, insolvency or similar law) of the Company or such Guarantor
arising under the Credit Facility or that, by the terms of the instrument
creating or evidencing such Indebtedness, is expressly designated Senior Debt
and made senior in right of payment to the Securities or the applicable
Guaranty; provided, that in no event shall Senior Debt include (a) Indebtedness
to any Subsidiary of the Company or any officer, director or employee of the
Company or any Subsidiary of the Company, (b) Indebtedness incurred in violation
of the terms of the Indenture, (c) Indebtedness to trade creditors, (d)
Disqualified Capital Stock and (e) any liability for taxes owed or owing by the
Company or such Guarantor.
33
"SIGNIFICANT SUBSIDIARY" shall have the meaning provided under
Regulation S-X of the Securities Act, in effect on the Issue Date.
"SPECIAL RECORD DATE" for payment of any Defaulted Interest means a
date fixed by the Paying Agent pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any Security, means
December 15, 2006.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment to the Securities or such
Guaranty, as applicable, in any respect or has a stated maturity on or after the
Stated Maturity.
"SUBSIDIARY" with respect to any person, means (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such person,
by such person and one or more Subsidiaries of such person or by one or more
Subsidiaries of such person, (ii) any other person (other than a corporation) in
which such person, one or more Subsidiaries of such person, or such person and
one or more Subsidiaries of such person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest, or (iii) a
partnership in which such person or a Subsidiary of such person is, at the time,
a general partner and in which such person, directly or indirectly, at the date
of determination thereof has at least a majority ownership interest.
"SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors
and (ii) Future Subsidiary Guarantors (other than Excluded Subsidiaries) that
become Subsidiary Guarantors pursuant to the terms of this Indenture, but
excluding any Persons whose guarantees have been released pursuant to the terms
of this Indenture.
34
"TAX SHARING AGREEMENT" means any agreements between the Company and
the Parent Guarantor pursuant to which the Company may make payments to the
Parent Guarantor with respect to the Company's Federal, state, or local income
or franchise tax liabilities where the Company is included in a consolidated,
unitary or combined return filed by the Parent Guarantor; PROVIDED, HOWEVER,
that the payment by the Company under such agreement may not exceed the
liability of the Company for such taxes if it had filed its income tax returns
as a separate company.
"10 1/8% NOTES" means the 10 1/8% Senior Subordinated Notes due
June 15, 2006 issued by JCAC, Inc. (predecessor to the Company) pursuant to
an Indenture dated as of June 12, 1996 between JCAC, Inc., Jacor
Communication Inc., as Initial Guarantor and First Trust of Illinois,
National Association.
"TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of the execution of this
Indenture, except as provided in Section 9.3.
"TRANSFER INSTRUMENTS" shall have the meaning specified in Section
12.2.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust
department (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer of the Trustee to whom
such trust matter
35
is referred because of his knowledge of and familiarity with the particular
subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"VOTING STOCK" means, with respect to any specified person, capital
stock with voting power, under ordinary circumstances, to elect directors of
such Person.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity Interests
of which are owned by the Company or one or more Wholly owned Subsidiaries of
the Company.
SECTION 2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITYHOLDER" means a Holder or a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company, each
Guarantor and any other obligor on the Securities.
36
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
SECTION 3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication, in respect
thereof, shall be substantially
37
in the form of Exhibit A hereto, which Exhibit is part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall approve the form of the Securities
and any notation, legend or endorsement on them. Any such notations, legends or
endorsements not contained in the form of Security attached as Exhibit A hereto
shall be delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Security for the Company by manual or facsimile signature.
The Company's seal, if any, shall be impressed, affixed, imprinted or reproduced
on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security but such
signature shall be conclusive evidence that the Security has been authenticated
pursuant to the terms of this Indenture.
38
The Trustee shall authenticate or cause to be authenticated Securities for
original issue in the aggregate principal amount of up to $170,000,000 upon a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed
$170,000,000, except as provided in Section 2.7. Upon the written order of the
Company in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
changes of the Company.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities 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, any Affiliate of the Company, or any of its
Subsidiaries.
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
SECTION 3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or exchange ("Registrar") and an office or agency of
the Company where Securities may be presented for payment ("Paying Agent") and
where notices and demands to or upon the Company in respect of the Securities
may be served. The Company may act as Registrar or Paying Agent, except that,
for the purposes of Articles III, VIII, XI, and Section 4.14 and as
39
otherwise specified in this Indenture, neither the Company nor any Affiliate of
the Company shall act as Paying Agent. The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional Paying Agent. The Company hereby initially appoints the Trustee as
Registrar and Paying Agent, and by its acknowledgement and acceptance on the
signature page hereto, the Trustee hereby agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent (including the Paying Agent) not a party to this Indenture, which
agreement shall implement the provisions of this Indenture that relate to such
Agent, and shall furnish a copy of each such agreement to the Trustee. The
Company shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities
Custodian with respect to the Global Securities.
Upon the occurrence of an Event of Default described in Section 6.1(4)
or (6), the Trustee shall, or upon the occurrence of any other Event of Default
by notice to the Company, the Registrar and the Paying Agent, the Trustee may,
assume the duties and obligations of the Registrar and the Paying Agent
hereunder.
40
SECTION 4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, the Securities (whether such
assets have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee in writing of any Default in making
any such payment. If a Subsidiary of the Company acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund for the benefit of
the Holders or the Trustee. The Company at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default or any Event of Default, upon written request to a Paying Agent, require
such Paying Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent (if other than the Company) shall have no further liability for
such assets.
SECTION 5. SECURITYHOLDER LISTS.
The Registrar 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 TIA Section 312(a). If the Trustee or
any Paying Agent is not the Registrar, the Company shall furnish to the Trustee
on or before the third Business Day preceding each Interest Payment Date and at
such other times as the Trustee or any such Paying Agent may request in writing
a list in such form and as of such date as the Trustee or any such Paying Agent
reasonably may require of the names and addresses of Holders and the Company
shall otherwise comply with TIA Section 312(a).
41
SECTION 6. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other authorized
denominations; the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; PROVIDED,
HOWEVER, that the Definitive Securities surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar duly
executed by the Holder thereof or his attorney duly authorized in writing.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Registrar, together with
written instructions of the Holder directing the Registrar to make, or to direct
the Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, then the Registrar shall cancel such
Definitive Security and cause, or direct the Securities Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Securities Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accord-
42
ingly. If no Global Securities are then outstanding, the Company shall issue
and the Trustee shall authenticate a new Global Security in the appropriate
principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Registrar of written instructions
or such other form of instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Security, and, if such beneficial interest is being
transferred to the Person designated by the Depositary as being the
beneficial owner, a certification from such person to that effect (in
substantially the form set forth on the reverse of the Security)(all of
which may be submitted by facsimile), then the Registrar or the Securities
Custodian, at the direction of the Trustee, will cause, in accordance with
the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of the Global
Security to be reduced and, following such reduction, the Company will
execute and the Trustee's authenticating agent will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in
43
such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Registrar. The Registrar shall deliver such Definitive
Securities to the persons in whose names such Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Security
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Securities notifies the Company
that the Depositary is unwilling or unable to continue as Depositary for
the Global Securities and a successor Depositary for the Global Securities
is not appointed by the Company within 90 days after delivery of such
notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee and the Registrar in writing that it elects to cause the issuance
of Definitive Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will, or its authenticating agent will, authenticate and deliver Definitive
Securities, in an aggregate principal amount equal to the principal amount of
the Global Securities, in exchange for such Global Securities.
44
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, repurchased or cancelled, such Global
Security shall be returned to or retained and cancelled by the Registrar. At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
cancelled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Registrar or the Securities Custodian, at the direction of the
Registrar, to reflect such reduction.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee or any authenticating agent of the
Trustee shall authenticate Definitive Securities and Global Securities at
the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.10, 3.7, 4.14(8), 9.5, or 11.1
(final paragraph)).
(iii) The Registrar shall not be required to register the
transfer of or exchange (a) any Definitive Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion
of any Definitive Security being redeemed in part, or (b) any Security for
a period beginning 15
45
Business Days before the mailing of a notice of an offer to repurchase
pursuant to Article XI or Section 4.14 hereof or redemption of Securities
pursuant to Article III hereof and ending at the close of business on the
day of such mailing.
SECTION 7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Registrar, to the Registrar to the effect that the Security
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee or any authenticating agent of the Trustee shall authenticate a
replacement Security if the Registrar's requirements are met. If required by
the Trustee, the Registrar or the Company, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the Company and the
Registrar, to protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. In the case of any lost
Security that will become due and payable within 30 days, the Company can choose
to pay such Security rather than replacing such Security. The Company may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company.
SECTION 8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those cancelled by the Registrar, those delivered to
the Registrar for cancellation, those reductions in the interest in a Global
Security effected by the Registrar hereunder, those paid pursuant to Section 2.7
and those de-
46
scribed in this Section 2.8 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Registrar receives proof satisfactory to it that the replaced
Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds Cash or U.S. Government
Obligations sufficient to pay all of the principal and interest and premium, if
any, due on the Securities payable on that date and payment of the Securities
called for redemption is not otherwise prohibited, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company or Affiliates of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that a Trust Officer of the Trustee actually
knows are so owned shall be disregarded.
47
SECTION 10. TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall, upon receipt of a written order of the
Company in the form of an Officers' Certificate, authenticate Definitive
Securities in exchange for temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities authenticated and delivered
hereunder.
SECTION 11. CANCELLATION.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Trustee and the Paying Agent shall forward to the Registrar
any Securities surrendered to them for registration of transfer, exchange or
payment. The Registrar, or at the direction of the Registrar, the Trustee or
the Paying Agent (other than the Company or an Affiliate of the Company), and no
one else, shall cancel and, return to the Company all Securities surrendered for
registration of transfer, exchange, payment or cancellation. Subject to Section
2.7, the Company may not issue new Securities to replace Securities that have
been paid or delivered to the Registrar for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 12. DEFAULTED INTEREST.
48
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest at the rate and in the
manner provided in Section 4.1 hereof and the Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Paying Agent an amount of Cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such Cash when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Paying Agent shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Paying
Agent of the notice of the proposed payment. The Paying Agent shall
promptly notify the Company and the Trustee of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class
49
postage prepaid, to each Holder at his address as it appears in the
Security register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Securities (or
their respective predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause, such manner shall be deemed practicable by the
Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 13. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not
50
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION
SECTION 1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by the provisions of this
Indenture, shall be made in accordance with such provisions and this Article
III. The Company will not have the right to redeem any Securities prior to
December 15, 2001. On or after December 15, 2001, the Company will have the
right to redeem all or any part of the Securities pursuant to Paragraph 5
thereof, in each case (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date, and subject to the provisions set forth in Section 3.5),
including accrued and unpaid interest to the Redemption Date.
SECTION 2. NOTICES TO TRUSTEE AND PAYING AGENT.
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of Securities to be redeemed and
whether it wants the Paying Agent to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities it has not previously delivered to the Trustee and
the Paying Agent for cancellation, it shall so notify the Trustee, in the form
of an Officers' Certificate, and
51
the Paying Agent of the amount of the reduction and deliver such Securities with
such notice.
The Company shall give each notice to the Trustee and the Paying Agent
provided for in this Section 3.2 at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee and the Paying
Agent). Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed by
lot or by such other method as the Trustee shall determine to be appropriate and
fair.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
and the Paying Agent in writing of the Securities selected for redemption and,
in the case of any Security selected for partial redemption, the principal
amount thereof to be redeemed. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 4. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trust-
52
ee, the Paying Agent and each Holder whose Securities are to be redeemed. At
the Company's request, the Paying Agent shall give the notice of redemption in
the Company's name and at the Company's expense. Each notice for redemption
shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice to
collect the Redemption Price;
(5) that, unless the Company defaults in its obligation to
deposit with the Paying Agent Cash, or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, Cash in an amount to fund the Redemption
Price, in accordance with Section 3.6 hereof or such redemption payment is
otherwise prohibited, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued and unpaid interest to the Redemption Date, upon
surrender to the Paying Agent of the Securities called for redemption and
to be redeemed;
53
(6) if any Security is being redeemed in part, the portion
of the principal amount, equal to $1,000 or any integral multiple thereof,
of such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the optional redemption provisions of Paragraph 5 of
the Securities.
SECTION 5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest to the
Redemption Date. Upon surrender to the Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including interest, if any,
accrued and unpaid to the Redemption Date; PROVIDED that if the Redemption Date
is after a regular Record Date and on or prior to the Interest Payment Date to
which such Record Date relates, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant Record Date; and
PROVIDED, FURTHER, that if a Redemption Date is a non-Business Day, payment
shall be made on the next succeeding
54
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day.
SECTION 6. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) Cash or
U.S. Government Obligations sufficient to pay the Redemption Price of, including
accrued and unpaid interest on, all Securities to be redeemed on such Redemption
Date (other than Securities or portions thereof called for redemption on that
date that have been delivered by the Company to the Registrar for cancellation).
The Paying Agent shall promptly return to the Company any Cash or U.S.
Government Obligations so deposited which is not required for that purpose upon
the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Security.
SECTION 7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee
55
shall authenticate and deliver to the Holder, without service charge to the
Holder, a new Security or Securities equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 1. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest and premium, if
applicable, on the Securities on the dates and in the manner provided herein and
in the Securities. An installment of principal of or interest and premium, if
applicable, on the Securities shall be considered paid on the date it is due if
the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds for the benefit of the Holders, on or
before 10:00 a.m. New York City time on that date, Cash deposited and designated
for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee and the Paying Agent of the
56
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee and the Paying Agent with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee and the Paying Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby initially designates the principal
corporate trust office of the Paying Agent as such office.
SECTION 3. LIMITATION ON RESTRICTED PAYMENTS.
On and after the Issue Date the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make any Restricted
Payment, if, after giving effect to such Restricted Payment on a PRO FORMA
basis, (1) a Default or an Event of Default shall have occurred and be
continuing, (2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio in Section 4.11, or (3)
the aggregate amount of all Restricted Payments made by the Company and its
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (a)(x) 100% of the
aggregate Consolidated EBITDA of the Company and its Consolidated Subsidiaries
for the period (taken as one accounting period), commencing on the first day of
the first full fiscal quarter commencing
57
after the Issue Date, to and including the last day of the fiscal quarter ended
immediately prior to the date of each such calculation (or, in the event
Consolidated EBITDA for such period is a deficit, then minus 100% of such
deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus
(b) the aggregate Net Cash Proceeds received by the Company from the sale of its
Qualified Capital Stock (other than (i) to a Subsidiary of the Company and (ii)
to the extent applied in connection with a Qualified Exchange), after the Issue
Date.
The foregoing clauses (2) and (3) of the immediately preceding
paragraph, however, will not prohibit (w) payments to the Parent Guarantor to
reimburse the Parent Guarantor for reasonable and necessary corporate and
administrative expenses, (x) Restricted Investments, PROVIDED, that, after
giving PRO FORMA effect to such Restricted Investment, the aggregate amount of
all such Restricted Investments made on or after the Issue Date that are
outstanding (after giving effect to any such Restricted Investments that are
returned to the Company or the Subsidiary Guarantor that made such prior
Restricted Investment, without restriction, in cash on or prior to the date of
any such calculation) at any time does not exceed $5.0 million, (y) a Qualified
Exchange and (z) the payment of any dividend on Qualified Capital Stock within
60 days after the date of its declaration if such dividend could have been made
on the date of such declaration in compliance with the foregoing provisions.
The full amount of any Restricted Payment made pursuant to the foregoing clauses
(x) and (z) of the immediately preceding sentence, however, will be deducted in
the calculation of the aggregate amount of Restricted Payments available to be
made pursuant to clause (3) of the immediately preceding paragraph.
SECTION 4. CORPORATE EXISTENCE.
Subject to Article V, the Company and the Guarantors shall do or cause
to be done all things necessary to
58
preserve and keep in full force and effect their respective corporate existence
in accordance with the respective organizational documents of each of them (as
the same may be amended from time to time) and the rights (charter and
statutory) and corporate franchises of the Company and the Guarantors; PROVIDED,
HOWEVER, nothing in this Section will prohibit the Company or any Guarantor from
engaging in any transaction permitted under Section 12.4 or Section 12.5 hereof
and PROVIDED FURTHER that neither the Company nor any Guarantor shall be
required to preserve any right or franchise if (a) the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of such entity and (b) the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 5. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company and the
Guarantors shall, and shall cause each of their Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Company and the Guarantors or any of their Subsidiaries or any
of their respective properties and assets; and (ii) all lawful claims, whether
for labor, materials, supplies, services or anything else, which have become due
and payable and which by law have or may become a Lien upon the property and
assets of the Company and the Guarantors or any of their Subsidiaries; PROVIDED,
HOWEVER, that neither the Company nor any of the Guarantors shall be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
59
SECTION 6. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 4.6 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a), in the
judgment of the Board of Directors of the Company, desirable in the conduct of
the business of such entity and (b) not disadvantageous in any material respect
to the Holders.
The Company and the Guarantors shall provide, or cause to be provided,
for themselves and each of their Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company is adequate and appropriate for the conduct of
the business of the Company, the Guarantors and such Subsidiaries.
SECTION 7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive, principal financial or principal
accounting officer of the Company, complying with Section 314(a)(4) of the TIA
and stating that a review of its activ-
60
ities and the activities of its Subsidiaries, if any, during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, whether or not the signer knows of any
failure by the Company or any Guarantor to comply with any conditions or
covenants in this Indenture and, if such signer does know of such a failure to
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto. The Trustee shall not be deemed to have knowledge of any
Default or any Event of Default unless one of its Trust Officers receives
written notice thereof from the Company or any of the Holders.
SECTION 8. REPORTS.
For so long as the Parent Guarantor or any successor thereto is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
and the Company is a wholly owned Subsidiary of the Parent Guarantor, the
Company shall deliver to the Trustee, and to each Holder, the Parent Guarantor's
annual and quarterly reports pursuant to Section 13 or 15(d) of the Exchange
Act, within 15 days after such reports have been filed with the Commission;
PROVIDED, HOWEVER; in the event either (i) the Parent Guarantor or a successor
as set forth above is no longer subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act or (ii) the Company is no longer a wholly owned
61
Subsidiary of the Parent Guarantor or a successor as set forth above, then
whether or not the Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Company shall deliver to the Trustee and,
to each Holder, within 15 days after it is or would have been (if it were
subject to such reporting obligations) required to file such with the
Commission, annual and quarterly financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
Commission, if the Company were subject to the requirements of Section 13 or
15(d) of the Exchange Act, including, with respect to annual information only, a
report thereon by the Company's certified independent accountants as such would
be required in such reports to the Commission, and, in each case, together with
a management's discussion and analysis of financial condition and results of
operations which would be so required and, to the extent permitted by the
Exchange Act or the Commission (if it were subject to such reporting
obligations), file with the Commission the annual, quarterly and other reports
which it is or would have been required to file with the Commission.
SECTION 9. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any Subsidiary shall become an "investment
company" (as that term is defined in the Investment Company Act of 1940, as
amended), or otherwise become subject to regulation under the Investment Company
Act.
SECTION 10. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
After the Issue Date, the Company shall not, and shall not permit any
of its Subsidiaries to, enter into any contract, agreement, arrangement or
transaction with any Affiliate (an "Affiliate Transaction") or any series of
related Affiliate Transactions (other than Exempted Affili-
62
ate Transactions) (i) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to the Company, and no less favorable to the
Company than could have been obtained in an arm's length transaction with a
non-Affiliate and, (ii) if involving consideration to either party in excess of
$5.0 million, unless such Affiliate Transaction(s) is evidenced by (A) an
Officers' Certificate addressed and delivered to the Trustee certifying that
such Affiliate Transaction (or Transactions) has been approved by a majority of
the members of the Board of Directors of the Company that are disinterested in
such transaction or, (B) in the event there are no members of the Board of
Directors of the Company who are disinterested in such transaction, then so long
as the Company is a wholly owned Subsidiary of the Parent Guarantor, an
Officers' Certificate addressed and delivered to the Trustee certifying that
such Affiliate Transaction (or Transactions) have been approved by a majority of
the members of the Board of Directors of the Parent Guarantor that are
disinterested in such transaction and (iii) if involving consideration to either
party in excess of $10.0 million, unless in addition the Company, prior to the
consummation thereof, obtains a written favorable opinion as to the fairness of
such transaction to the Company from a financial point of view from an
independent investment banking firm of national reputation.
SECTION 11. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED CAPITAL STOCK.
Except as set forth below, neither the Company nor any of the
Company's Subsidiaries shall, directly or indirectly, issue, assume, guaranty,
incur, become directly or indirectly liable with respect to (including as a
result of an Acquisition), or otherwise become responsible for, contingently or
otherwise (individually and collectively, to "incur" or, as appropriate, an
"incurrence"), any Indebtedness or any Disqualified Capital Stock (including
Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding the
foregoing limitations, the Company may incur
63
Indebtedness and Disqualified Capital Stock in addition to Permitted
Indebtedness: if (i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a PRO FORMA
basis to, such incurrence of Indebtedness or Disqualified Capital Stock and (ii)
on the date of such incurrence (the "Incurrence Date"), the Leverage Ratio of
the Company for the Reference Period immediately preceding the Incurrence Date,
after giving effect on a PRO FORMA basis to such incurrence of such Indebtedness
or Disqualified Capital Stock and, to the extent set forth in the definition of
Leverage Ratio, the use of proceeds thereof, would be less than 7.0 to 1.
Indebtedness or Disqualified Capital Stock of any person which is
outstanding at the time such person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other person as a Subsidiary)
or is merged with or into or consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been Incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Subsidiary of the Company, as applicable.
SECTION 12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall permit any of
their Subsidiaries to, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company to pay dividends or
make other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or any Subsidiary
of the Company, except (a) restrictions imposed by the Securities or the
Indenture, (b) restrictions imposed by applicable law, (c) existing restrictions
under Indebtedness outstanding on the Issue Date, (d) restrictions under any
Acquired
64
Indebtedness not incurred in violation of the Indenture or any agreement
relating to any property, asset, or business acquired by the Company or any of
its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (f) under the definition of Permitted
Indebtedness, provided such restriction or requirement is no more restrictive
than that imposed by the Credit Facility as of the Issue Date, (f) restrictions
with respect solely to a Subsidiary of the Company imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such Subsidiary, provided
such restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold, and (g) in connection with and pursuant to
permitted Refinancings, replacements of restrictions imposed pursuant to clauses
(a), (c) or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, or other standard non-assignment
clauses in contracts entered into in the ordinary course of business, (b)
Capital Leases or agreements governing purchase money Indebtedness which contain
restrictions of the type referred to above with respect to the property covered
thereby, nor (c) Liens permitted under the terms hereof on assets securing
Senior Debt incurred pursuant to the Leverage Ratio in Section 4.11 or permitted
pursuant to the definition of Permitted Indebtedness, shall in and of themselves
be considered a restriction on the
65
ability of the applicable Subsidiary to transfer such agreement or assets, as
the case may be.
SECTION 13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, directly or indirectly, incur, or, other than with
respect to the 10 1/8% Notes, suffer to exist (a) any Indebtedness that is
subordinate in right of payment to any other Indebtedness of the Company or a
Guarantor unless, by its terms, such Indebtedness (i) has a maturity date
subsequent to the Stated Maturity of the Securities and an Average Life longer
than that of the Securities and (ii) is subordinate in right of payment to, or
ranks PARI PASSU with, the Securities or the Guarantees, as applicable, or (b)
other than Permitted Liens, any Lien upon any of properties or assets, whether
now owned or hereafter acquired, or upon any income or profits therefrom
securing Indebtedness other than (1) Liens securing Senior Debt incurred
pursuant to the Leverage Ratio in accordance with Section 4.11 and (2) Liens
securing Senior Debt incurred as permitted pursuant to the definition of
Permitted Indebtedness.
SECTION 14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, in one or a series of related transactions, sell,
transfer, or otherwise dispose of, any of its property, business or assets,
including by merger or consolidation (in the case of a Guarantor or a Subsidiary
of the Company), and including any sale or other transfer or issuance of any
Equity Interests of any direct or indirect Subsidiary of the Company, whether by
the Company or a direct or indirect Subsidiary thereof (an "Asset Sale"), unless
(1) within 450 days after the date of such Asset Sale, the Net Cash Proceeds
therefrom (the "Asset
66
Sale Offer Amount") are (a) applied to the optional redemption of the Securities
in accordance with the terms hereof and the Securities or to the repurchase of
the Securities pursuant to an irrevocable, unconditional cash offer (the "Asset
Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer
Price") of 100% of principal amount, plus accrued interest to the date of
payment, (b) invested in assets and property (other than notes, bonds,
obligations and securities) which in the good faith reasonable judgment of the
Board of the Company will immediately constitute or be a part of a Related
Business of the Company or a Subsidiary (if it continues to be a Subsidiary)
immediately following such transaction or (c) used to permanently retire or
reduce Senior Debt or Indebtedness permitted pursuant to paragraphs (d), (e) or
(f) under the definition of Permitted Indebtedness (including that in the case
of a revolver or similar arrangement that makes credit available, such
commitment is so permanently reduced by such amount), (2) with respect to any
Asset Sale or related series of Asset Sales involving securities, property or
assets with an aggregate fair market value in excess of $2.5 million, at least
75% of the consideration for such Asset Sale or series of related Asset Sales
(excluding the amount of (A) any Indebtedness (other than the Securities) that
is required to be repaid or assumed (and is either repaid or assumed by the
transferee of the related assets) by virtue of such Asset Sale and which is
secured by a Lien on the property or asset sold and (B) property received by the
Company or any such Subsidiary from the transferee that within 90 days of such
Asset Sale is converted into cash or Cash Equivalents) consists of cash or Cash
Equivalents (other than in the case of an Asset Swap or where the Company is
exchanging all or substantially all the assets of one or more Related Businesses
operated by the Company or its Subsidiaries (including by way of the transfer of
capital stock) for all or substantially all the assets (including by way of the
transfer of capital stock) constituting one or more Related Businesses operated
by another person, in which event the foregoing requirement with respect to the
receipt of cash or
67
Cash Equivalents shall not apply), (3) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect,
on a PRO FORMA basis, to, such Asset Sale, and (4) the Board of the Company
determines in good faith that the Company or such Subsidiary, as applicable,
receives fair market value for such Asset Sale.
Notwithstanding the foregoing provisions of the first paragraph of
this covenant, with respect to an Asset Sale Offer, the Company shall not
commence an Asset Sale Offer for the Securities until such time as a
Citicasters Securities Asset Sale Offer for the Citicasters Securities and
the 10 1/8% Notes in each case if required, has been completed. To the
extent that any Excess Proceeds remain after expiration of an Asset Sale
Offer Period for the Citicasters Securities and the 10 1/8% Notes, the
Company shall use the remaining Net Cash Proceeds, to the extent "Excess
Proceeds" (as defined herein) exceeds $5,000,000, to commence an Asset Sale
Offer for the Securities; PROVIDED, that the amount of Net Cash Proceeds used
for such Asset Sale Offer for the Securities shall not exceed the Citicasters
Asset Sale Repurchase Amount and with respect to the 10 1/8% Notes, the
amount required under the covenant Limitation on Sale of Assets and
Subsidiary Stock as set forth in the indenture governing the 10 1/8% Notes
PROVIDED, HOWEVER, that with respect to the Citicasters Securities this
paragraph shall be of no further force and effect upon a Citicasters
Securities Event and with respect to the 10 1/8% Notes this paragraph shall
be of no further force and effect upon the earlier of (w) the maturity of the
10 1/8% Notes, (x) the date upon which defeasance of the 10 1/8% Notes
becomes effective, (y) the date on which there are no longer any 10 1/8%
Notes outstanding in accordance with the terms of the indenture governing the
10 1/8% Notes and (z) the date on which the Limitation on Sale of Assets and
Subsidiary Stock covenant no longer applies in accordance with the terms of
the Indenture governing the 10 1/8% Notes.
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In addition, notwithstanding the foregoing provisions of the first
paragraph of this covenant:
(i) the Company and its Subsidiaries may convey, sell, lease,
transfer, assign or otherwise dispose of assets pursuant to an in
accordance with the provisions of Section 5.1;
(ii) the Company and its Subsidiaries may sell or dispose of
inventory or damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of the Company or such Subsidiary, as
applicable; and
(iii) any of the Company's Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets to, or merge with or into,
the Company or any of its Wholly owned Subsidiary Guarantors.
The Company shall accumulate all Net Cash Proceeds (including any cash
as and when received from the proceeds of any property which itself was acquired
in consideration of an Asset Sale), and the aggregate amount of such accumulated
Net Cash Proceeds not used for the purposes permitted and within the time
provided by this Section 4.14 is referred to as the "Excess Proceeds."
For purposes of this Section 4.14, "Excess Proceeds Date" means each
date on which the Excess Proceeds exceeds $5,000,000. Not later than ten
Business Days after each Excess Proceeds Date, the Company will commence an
Asset Sale Offer, to the Holders to purchase, on a PRO RATA basis, for Cash,
Securities having a principal amount equal to the Excess Proceeds Amount at the
Asset Sale Offer Price, equal to 100% of principal amount, plus accrued but
unpaid interest to, and including, the date (the "Purchase Date"), the
Securities tendered are purchased and paid for in accordance with this Section
4.14. The Asset Sale Offer shall
69
remain open for twenty Business Days, except to the extent that a longer period
is required by applicable law, but in any case not more than sixty Business Days
after such Excess Proceeds Date. Notice of an Asset Sale Offer will be sent on
or before the commencement of any Asset Sale Offer, by first-class mail, by the
Company to each Holder at its registered address, with a copy to the Trustee.
The notice to the Holders will contain all information, instructions and
materials required by applicable law or otherwise material to such Holders'
decision to tender Securities pursuant to the Asset Sale Offer. The notice,
which (to the extent consistent with this Indenture) shall govern the terms of
the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to
such notice and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Final Put Date
(as defined below), and the Purchase Date, which Purchase Date shall be on
or prior to 60 Business Days following the Excess Proceeds Date;
(3) that any Security or portion thereof not tendered or
accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the immediately following
paragraph of this Section 4.14 or such payment is otherwise prevented, any
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Security, or portion thereof, accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security, or portion thereof,
purchased pursuant to an Asset Sale Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent (which may not for
purposes of this Section 4.14, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) at the address
specified in the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Purchase Date and (b) the third Business Day
following the expiration of the Asset Sale Offer (such earlier date being the
"Final Put Date");
(6) that Holders will be entitled to withdraw their elections, in
whole or in part, if the Paying Agent (which may not for purposes of this
Section 4.14, notwithstanding any other provision of this Indenture, be the
Company or any Affiliate of the Company) receives, up to the close of business
on the Final Put Date, a facsimile transmission or letter setting forth
71
the name of the Holder, the principal amount of the Securities the Holder is
withdrawing and a statement that such Holder is withdrawing his election to have
such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the
principal amount of Securities to be acquired pursuant to the Asset Sale Offer
are tendered and not withdrawn, the Trustee shall select the Securities to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts
regarding such Asset Sales.
On or before a Purchase Date, the Company shall, to the extent lawful,
(i) accept for payment Securities or portions thereof properly tendered pursuant
to the Asset Sale Offer on or before the Final Put Date (on a PRO RATA basis if
required pursuant to paragraph (7) of this Section 4.14), (ii) deposit with the
Paying Agent Cash sufficient to
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pay the Asset Sale Offer Price for all Securities or portions thereof so
tendered and accepted and (iii) deliver to the Paying Agent Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall on each
Purchase Date mail or deliver to Holders of Securities so accepted payment in an
amount equal to the Asset Sale Offer Price for such Securities, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered; PROVIDED that if the Purchase Date is after a regular Record Date
and on or prior to the Interest Payment Date to which such Record Date relates,
the accrued interest shall be payable to the Holder of the purchased Securities
registered on the relevant Record Date. Any Security not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof.
All Net Cash Proceeds from an Event of Loss shall be applied to the
restoration, repair or replacement of the asset so affected or invested, used
for prepayment of Senior Debt, or used to repurchase Securities, all within the
period and as otherwise provided above in clauses 1(a), 1(b) or 1(c) of the
first paragraph of this covenant.
In addition to the foregoing, the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly make any Asset Sale of
any of the Equity Interests of any Subsidiary except pursuant to an Asset Sale
of all the Equity Interests of such Subsidiary.
Any such Asset Sale Offer shall comply with all applicable laws, rules
and regulations, including Regulation 14E of the Exchange Act and the rules and
regulations thereunder and all other applicable Federal and State securities
laws, if applicable, and any provisions of this Indenture that conflict with
such laws shall be deemed to be superseded by the provisions of such laws.
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If the amount required to be paid by the Company in order to acquire
all Securities duly tendered by Holders (and not withdrawn) pursuant to an Asset
Sale Offer (the "Acceptance Amount"), made pursuant to the second paragraph of
this Section 4.14 is less than the Asset Sale Offer Amount, the excess of the
Asset Sale Offer Amount over the Acceptance Amount may be used by the Company
for general corporate purposes without restriction, unless otherwise restricted
by the other provisions of this Indenture. Upon consummation of any Asset Sale
Offer made in accordance with the terms of this Indenture, the Accumulated
Amount will be reduced to zero irrespective of the amount of Securities tendered
pursuant to the Asset Sale Offer.
Notwithstanding the foregoing provisions of clause (1)(b) in the first
paragraph of this Section 4.14, the Company may invest in a controlling interest
in the Capital Stock of an entity engaged in a Related Business; PROVIDED, that
concurrently with such an Investment, such entity becomes a Subsidiary
Guarantor.
SECTION 15. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall, and shall not
permit any of their Subsidiaries to, in one or a series of related transactions,
directly or indirectly, engage in any Asset Swaps, unless: (i) at the time of
entering into the agreement to swap assets and immediately after giving effect
to the proposed Asset Swap, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; (ii) the Company
would, after giving PRO FORMA effect to the proposed Asset Swap, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2.5 million by the Board of Directors of the
Company, as
74
evidenced by a Board Resolution) are substantially the same at the time of
entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company or its Subsidiaries,
calculated from the time the agreement to swap assets was entered into.
SECTION 16. LIMITATION ON LINES OF BUSINESS.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, directly or indirectly, engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Board of Directors of the Company is a
Related Business.
SECTION 17. RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK.
Neither the Company nor the Guarantors shall sell, or permit any of
their Subsidiaries to issue or sell, any Equity Interests of any Subsidiary of
the Company to any person other than the Company or a Wholly owned Subsidiary of
the Company, except for Equity Interests with no preferences or special rights
or privileges and with no redemption or prepayment provisions.
SECTION 18. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors 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 or
75
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of,
premium of, or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Guarantors hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or any
Paying Agent, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 19. DISSOLUTION OF EXCLUDED SUBSIDIARIES; RESTRICTION ON
TRANSFER TO EXCLUDED SUBSIDIARIES.
The Company and the Guarantors shall cause all Excluded Subsidiaries
to be dissolved or merged with and into a Subsidiary Guarantor on or prior to
the date three months from the date of this Indenture. The Company and its
Subsidiaries shall not, and shall not permit any of their subsidiaries to,
transfer any assets or make any payments outside of the ordinary course to an
Excluded Subsidiary.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
The Company will not, directly or indirectly, consolidate with or merge with or
into another person or sell, lease, convey or transfer all or substantially all
of its assets (computed on a consolidated basis), whether in a single
transaction or a series of related transactions, to another person or group of
affiliated persons or adopt a Plan of Liquidation, unless (i) either
76
(a) the Company is the continuing entity or (b) the resulting, surviving or
transferee entity or in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation is a corporation
organized under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities and this Indenture;
(ii) no Default or Event of Default shall exist or shall occur immediately after
giving effect on a PRO FORMA basis to such transaction; and (iii) immediately
after giving effect to such transaction on a PRO FORMA basis, the consolidated
resulting, surviving or transferee entity or, in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio set forth in Section
4.11.
(b) For purposes of clause (a), the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a Plan of
Liquidation in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made or, in the case of a Plan of Liquidation, the entity which
receives the greatest value
77
from such Plan of Liquidation shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named herein as the
Company, and when a successor corporation duly assumes all of the obligations of
the Company pursuant hereto and pursuant to the Securities, the Company shall be
released from such obligations under the Securities and this Indenture except
with respect to any obligations that arise from or are related to, such
transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure by the Company to pay any installment of interest
upon the Securities as and when the same becomes due and payable, and the
continuance of any such failure for a period of 30 days;
(2) failure by the Company to pay all or any part of the
principal of or premium, if any, on the Securities when and as the same becomes
due and payable at maturity, upon redemption, by acceleration, or otherwise,
including, without limitation, default in the payment of the Change of Control
Purchase Price in accordance with Article XI or the Asset Sale Offer Price in
accordance with Section 4.14, or otherwise;
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(3) failure by the Company or any Guarantor to observe or
perform any other covenant or agreement contained in the Securities or this
Indenture and, subject to certain exceptions, the continuance of such failure
for a period of 60 days after written notice is 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 Securities outstanding, specifying such
default or breach, requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
(4) decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company or any of its Significant
Subsidiaries under any bankruptcy or similar law, and such decree or order shall
have continued undischarged and unstayed for a period of 60 consecutive days; or
a decree, judgment or order of a court of competent jurisdiction appointing a
receiver, liquidator, trustee, or assignee in bankruptcy or insolvency for the
Company, any of its Significant Subsidiaries, or any substantial part of the
property of any such Person, or for the winding up or liquidation of the affairs
of any such Person, shall have been entered, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of 60 days;
(5) default in any issue of Indebtedness of the Company or any
of its Subsidiaries with an aggregate principal amount in excess of $5.0
million, in either case (a) resulting from the failure to pay principal at final
maturity, or (b) as a result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity;
79
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall consent
to the filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under any bankruptcy or similar law or
similar statute, or shall consent to the filing of any such petition, or shall
consent to the appointment of a Custodian, receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency of it or any substantial part of its assets
or property, or shall make a general assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due, fail generally to pay its debts as they become due, or take any corporate
action in furtherance of any of the foregoing; or
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million at any one time shall be rendered against
the Company or any of its Subsidiaries and not stayed, bonded or discharged for
a period (during which execution shall not be effectively stayed) of 60 days
(or, in the case of any such final judgment which provides for payment over
time, which shall so remain unstayed, unbonded or undischarged beyond any
applicable payment date provided therein).
SECTION 2. ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing (other than an Event
of Default specified in Section 6.1(4) or (6) relating to the Company or its
Significant Subsidiaries) then in every such case, unless the principal of all
of the Securities shall have already become due and payable, either the Trustee
or the Holders of 25% in aggregate principal amount of the Securities
outstanding, by a notice in
80
writing to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all of the principal and accrued interest
thereon to be due and payable immediately; provided, however, that if any
Senior Debt is outstanding pursuant to the New Credit Facility upon a
declaration of such acceleration, such principal and interest shall be due
and payable upon the earlier of (x) the third Business Day after the sending
to the Company and the Representative of such written notice, unless such
Event of Default is cured or waived prior to such date and (y) the date of
acceleration of any Senior Debt under the New Credit Facility. In the event
a declaration of acceleration resulting from an Event of Default described in
Section 6.1(5) above has occurred and is continuing, such declaration of
acceleration shall be automatically annulled if such default is cured or
waived or the holders of the Indebtedness which is the subject of such
default have rescinded their declaration of acceleration in respect of such
Indebtedness within five days thereof and the Trustee has received written
notice or such cure, wavier or rescission and no other Event of Default
described in Section 6.1(5) above has occurred that has not been cured or
waived within five days of the declaration of such acceleration in respect of
such Indebtedness. If an Event of Default specified in Section 6.1(4) or (6)
above, relating to the Company or any Significant Subsidiary occurs, all
principal and accrued interest thereon will be immediately due and payable on
all outstanding Securities without any declaration or other act on the part
of Trustee or the Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may rescind, on
behalf of all Holders, any such declaration of acceleration if:
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(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to) any
Securities which would become due other than by reason of such
declaration of acceleration, and interest thereon at the rate borne
by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee and
its agents and counsel, and any other amounts due the Trustee under
Section 7.7, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which have become
due solely by
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such declaration of acceleration, have been cured or waived as provided in
Section 6.12, including, if applicable, any Event of Default relating to
the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with
notice or lapse of time or both would be an Event of Default with respect to
(i) any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default
or other event and (ii) any provision requiring supermajority approval to
amend, unless such default has been waived by such a supermajority. No such
waiver shall cure or waive any subsequent default or impair any right
consequent thereon.
SECTION 3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Company shall, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal, premium (if any) and
interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including compensation to, and expenses,
disbursements and advances of the Trustee and its agents and counsel and all
other amounts due the Trustee under Section 7.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trust-
83
ee of an express trust in favor of the Holders, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem
most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal and
premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions
under the TIA, including
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such
84
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee and its
agent and counsel and all other amounts due the Trustee under Section 7.7)
and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and its
agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment, or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
85
SECTION 5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any
of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust in favor of the Holders, and
any recovery of judgment shall, after provision for the payment of
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due the Trustee under Section 7.7,
be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
SECTION 6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal,
premium (if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to Section
7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any) and interest on, the Securities in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium (if any) and interest,
respectively; and
86
THIRD: To the Company or such other Person as may be lawfully entitled
thereto, the remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 6.6.
SECTION 7. LIMITATION ON SUITS.
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(A) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(B) the Holders of not less than 25% in aggregate principal amount of
then outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred or reasonably probable to be incurred in compliance with such
request;
(D) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in
87
aggregate principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and interest on,
such Security on the Maturity Dates of such payments as expressed in such
Security (in the case of redemption, the Redemption Price on the applicable
Redemption Date, in the case of the Change of Control Payment, on the
applicable Change of Control Payment Date, and in the case of the Asset Sale
Offer Price, on the Purchase Date) and to institute suit for the enforcement
of any such payment after such respective dates, and such rights shall not be
impaired without the consent of such Holder.
SECTION 9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in Section 2.7, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of
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any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any Security to
exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 11. CONTROL BY HOLDERS.
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee,
PROVIDED, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or involve the Trustee in personal liability,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction,
and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 12. WAIVER OF PAST DEFAULT.
Subject to Section 6.8, and prior to the declaration of acceleration of
the maturity of the Securities, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, waive any past default hereunder and its consequences,
except a default
(A) in the payment of the principal of, premium, if any, or interest
on, any Security as specified in clauses (1) and (2) of Section 6.1 and not
yet cured,
(B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder
of each outstanding Security affected, or
(C) in respect of any provision hereof which, under Article IX,
cannot be modified, amended or waived without the consent of the Holders of
a supermajority of the aggregate principal amount of the Securities at the
time outstanding; PROVIDED, that any such waiver may be effected with the
consent of the Holders of a supermajority of the aggregate principal amount
of the Securities then outstanding.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair the exercise of any right arising therefrom.
SECTION 13. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be
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deemed to have agreed, that in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted to be taken by it as Trustee, any court may
in its discretion require the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.13 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the outstanding Securities, or to
any suit instituted by any Holder for enforcement of the payment of principal
of, or premium (if any) or interest on, any Security on or after the
respective Maturity Date expressed in such Security (including, in the case
of redemption, on or after the Redemption Date).
SECTION 14. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
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ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed, subject to
the terms hereof.
SECTION 1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as
a prudent Person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee, and
(2) 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, in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1,
(2) 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
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or to take or omit to
take any action under this Indenture or at the request, order or direction
of the Holders or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
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SECTION 2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to Sections 13.4
and 13.5. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture, nor for any action
permitted to be taken or omitted hereunder by any Agent.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
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unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture,
any demand, request, direction or notice from the Company or any Guarantor
shall be sufficient if signed by an Officer of the Company or such Guarantor,
as applicable.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's or any Guarantor's covenants in Article IV
hereof or as to the performance by any Agent of its duties hereunder. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except any Default or Event of Default of which the Trustee
shall have received written notification or with respect to which a Trust
Officer shall have actual knowledge.
(i) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate.
SECTION 3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company, any
Guarantor, any of their Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
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SECTION 4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities and it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities, other than the Trustee's
certificate of authentication (if executed by the Trustee), or the use or
application of any funds received by a Paying Agent other than the Trustee.
SECTION 5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice
of the uncured Default or Event of Default within 90 days after such Default
or Event of Default occurs. Except in the case of a Default or an Event of
Default in payment of principal (or premium, if any) of, or interest on, any
Security (including the payment of the Change of Control Purchase Price on
the Change of Control Payment Date, the payment of the Redemption Price on
the Redemption Date and the payment of the Offer Price on the Purchase Date),
the Trustee may withhold the notice if and so long as a Trust Officer in good
faith determines that withholding the notice is in the interest of the
Securityholders.
SECTION 6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15, 1997
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
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The Company shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Securities are listed.
SECTION 7. COMPENSATION AND INDEMNITY.
The Company and the Guarantors jointly and severally agree to pay to the
Trustee from time to time such compensation as shall be agreed upon in
writing between the Company and the Trustee for its services. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company and the Guarantors shall reimburse the Trustee
upon request for all reasonable disbursements, expenses and advances incurred
or made by it in accordance with this Indenture. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company and the Guarantors jointly and severally agree to indemnify
the Trustee (in its capacity as Trustee) and each of its officers and each of
them, directors, attorneys-in-fact and agents for, and hold it harmless
against, any and all claim, demand, damage, expense (including but not
limited to reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel), loss or liability incurred by it without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust and its rights
or duties hereunder including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim
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asserted against the Trustee for which it may seek indemnity. The Company
and the Guarantors shall defend the claim and the Trustee shall provide
reasonable cooperation at the Company's and the Guarantors' expense in the
defense. The Trustee may have separate counsel and the Company and the
Guarantors shall pay the reasonable fees and expenses of such counsel. The
Company and the Guarantors need not pay for any settlement made without their
written consent. The Company and the Guarantors need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by
the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Securities on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal and premium, if any, of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's and the Guarantors' obligations under this Section 7.7 and
any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company's and the Guarantors' obligations
pursuant to Article VIII of this Indenture and any rejection or termination
of this Indenture under any Bankruptcy Law.
SECTION 8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in aggregate principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the
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Trustee in writing and may appoint a successor trustee with the Company's
consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holder or Holders of a majority in aggregate principal amount of the
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that and provided that all sums owing to the retiring Trustee provided for in
Section 7.7 have been paid, the retiring Trustee shall transfer all property
held by it as trustee to the successor Trustee, subject to the lien provided
in Section 7.7, 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. A successor Trustee shall
mail notice of its succession to each Holder.
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 Holder or Holders of at least 10% in aggregate principal amount of the
out-
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standing Securities 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 Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company and the Guarantors' obligations under Section 7.7 shall continue
for the benefit of the retiring Trustee.
SECTION 9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
This Indenture shall cease to be of further effect (except that the
Company's and the Guarantors' obligations under Section 7.7 and the Trustee's
and the Paying Agent's obligations under Sections 8.6 and 8.7 shall survive)
when all outstanding Securities theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Securities that have
been replaced or paid) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder. In addition, the Company
may, at its option and at any time, elect to have Section 8.2 or may, at any
time, elect to have Section 8.3 applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article VIII.
SECTION 2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company and the Guarantors shall be deemed to have
been discharged from their respective obligations with respect to all
outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which
shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.5 and the other Sections of this Indenture referred to in (a) and
(b) below, and to have satisfied all its other obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledg-
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ing the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in Section 8.4,
and as more fully set forth in such section, payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such
Securities under Sections 2.4, 2.6, 2.7, 2.10 and 4.2, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
Company's and the Guarantors' obligation in connection therewith and (d) this
Article VIII. Upon Legal Defeasance as provided herein, the Guaranty of each
Guarantor shall be fully released and discharged and the Trustee shall
promptly execute and deliver to the Company any documents reasonably
requested by the Company to evidence or effect the foregoing. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 with respect to the Securities.
SECTION 3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company and the Guarantors shall be released from
their respective obligations under the covenants contained in Sections 4.3,
4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17,
Article V, Article XI and Article XII with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company need not
comply with and shall have
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no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document (and
Section 6.1(3) shall not apply to any such covenant), but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section
8.1 of the option applicable to this Section 8.3, Sections 6.1(3) through
6.1(7) shall not constitute Events of Default. Upon Covenant Defeasance, as
provided herein, the Guaranty of each Guarantor shall be fully released and
discharged and the Trustee shall promptly execute and deliver to the Company
any documents reasonably requested by the Company to evidence or effect the
foregoing.
SECTION 4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfactory to the Trustee
satisfying the requirements of Section 7.10 who shall agree to comply with
the provisions of this Article VIII applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (a) Cash in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, Cash in an amount, or (c) a combination thereof, in
such amounts, as in each case will be sufficient, in the opinion of a
nationally recognized firm of independent
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public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge and which shall be applied by the Paying
Agent (or other qualifying trustee) to pay and discharge the principal of,
premium, if any, and interest on the outstanding Securities on the Stated
Maturity or on the applicable Redemption Date, as the case may be, of such
principal or installment of principal, premium, if any, or interest; PROVIDED
that the Paying Agent shall have been irrevocably instructed to apply such
Cash and the proceeds of such U.S. Government Obligations to said payments
with respect to the Securities. The Paying Agent shall promptly advise the
Trustee in writing of any Cash or Securities deposited pursuant to this
Section 8.4;
(b) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the Company
have received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Covenant Defeasance and will be subject to Federal income tax in the
same amount, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
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(d) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or, in so
far as Section 6.1(4) or Section 6.1(6) is concerned, at any time in the
period ending on the 91st day after the date of such deposit (it being
understood that this condition is a condition subsequent which shall not be
deemed satisfied until the expiration of such period, but in the case of
Covenant Defeasance, the covenants which are defeased under Section 8.3 will
cease to be in effect unless an Event of Default under Section 6.1(4) or
Section 6.1(6) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company, the
Guarantors, or any of their Subsidiaries is a party or by which any of them
is bound;
(f) In the case of an election under either Section 8.2 or 8.3,
the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.2 or 8.3 was not made by the Company with the intent of preferring
the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others;
(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the conditions precedent provided for have been
complied with; and
(h) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that the conditions set out in Section 8.4(a) (with respect to
the validity and perfection of the security interest), (b), (c) and (e) above.
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(i) The Company or the Parent Guarantor shall have delivered to
the Trustee any required consent of the lenders under the Credit Facility to
such defeasance or covenant defeasance, as the case may be.
SECTION 5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all Cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Paying Agent (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Paying Agent") pursuant to Section 8.4 in respect of the outstanding
Securities shall be held in trust and applied by the Paying Agent, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any other Paying Agent as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
SECTION 6. REPAYMENT TO THE COMPANY.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the request of the Company any Cash or U.S. Government Obligations
held by it as provided in Section 8.4 hereof which in
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the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.4(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Any Cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall
be paid to the Company on its request; and the Holder of such Security shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to (i) be published once, in the NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), or (ii) mail to each such Holder, 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 7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to
107
Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is
permitted to apply such money in accordance with Section 8.2 and 8.3, as the
case may be; PROVIDED, HOWEVER, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
Cash and U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company or any Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause shall not adversely
affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or the Guarantors;
(3) to provide for additional collateral for or additional
Guarantors of the Securities;
108
(4) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the Company,
herein and in the Securities in accordance with Article V;
(5) to comply with the TIA;
(6) to evidence the succession of another corporation to any
Guarantor and assumption by any such successor of the Guaranty of such
Guarantor (as set forth in Section 12.4) in accordance with Article XIII;
(7) to evidence the release of any Guarantor in accordance with
Article XII;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
SECTION 2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH CONSENT
OF HOLDERS.
Subject to Section 6.8, with the consent of the Holders of not less than
a majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Company and the Trustee, the
Company or any Guarantor, when authorized by Board Resolutions, and the
Trustee may amend or supplement this Indenture or the Securities or enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or the Securities or of modifying in any manner
the rights of the Holders under this Indenture or the Securities. Subject to
Section 6.8, the Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may waive compliance by the
Company or any Guarantor with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental
109
indenture or waiver shall without the consent of the Holders of not less than
75% of the aggregate principal amounts of Securities at the time outstanding
alter the terms or provisions of Section 11.1 or Section 11.2 in a manner
adverse to the Holders; and no such amendment, supplemental indenture or
waiver shall, without the consent of the Holder of each outstanding Security
affected thereby:
(1) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date), or reduce the Change of Control Purchase Price, the
Citicasters Purchase Price or the Asset Sale Offer Price or alter the
provisions (including the defined terms used herein) regarding the right of
the Company to redeem the Securities in a manner adverse the Holders; or
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such amendment,
supplemental indenture or wavier provided for in this Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provision of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby.
Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the
Representative on behalf of the Required Lenders amend, waive or otherwise
modify the terms or provi-
110
sions of Article X in a manner adverse to the Lenders (as defined in the New
Credit Facility).
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders 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 supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security
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or portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of his Security by written notice to the Company or the Person
designated by the Company as the Person to whom consents should be sent if such
revocation is received by the Company or such Person before the date on which
the Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (3) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; PROVIDED, that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Securi-
112
ty, or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 5. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Registrar or require the Holder to put an appropriate notation on the Security.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms. Any
failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment, supplement or waiver.
SECTION 6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
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ARTICLE X
SUBORDINATION
SECTION 1. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company and the Guarantors and each Holder, by its acceptance of
Securities, agree that (a) the payment of the principal of and interest on the
Securities and (b) any other payment in respect of the Securities, including on
account of the acquisition or redemption of the Securities by the Company or the
Guarantors (including, without limitation, pursuant to Article III or Section
4.1, 4.14, 11.1, 11.2 or Article XII is expressly made and shall be 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 of all existing and future Senior Debt of
the Company and the Guarantors and that these subordination provisions are for
the benefit of the holders of Senior Debt.
This Article X shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior
Debt, and such holders are made obligees hereunder and any one or more of them
may enforce such provisions.
SECTION 2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment (including any payment which may be payable to
any Holder by reason of the subordination of any other indebtedness or other
obligations to, or guarantee of, the Securities) or distribution (by set-off or
otherwise) shall be made by or on behalf of the Company or a Guarantor, as
applicable, on account of the Securities, including the principal of, premium,
if any, or interest on the Securities (including any repurchases of Securities)
or
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any other amounts with respect thereto or on account of the redemption
provisions of the Securities for cash or property (other than Junior
Securities), (i) upon the maturity of any Senior Debt of the Company or such
Guarantor by lapse of time, acceleration (unless waived) or otherwise, unless
and until all principal of, premium, if any, and the interest on, and all other
amounts with respect to, such Senior Debt shall first be paid in full in Cash or
otherwise to the extent each of the holders of Senior Debt accept satisfaction
of amounts due to such holder by settlement in other than Cash, or (ii) in the
event of default in payment of any principal of, or premium, if any, or interest
on, or any other amounts with respect to, Senior Debt of the Company or such
Guarantor when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise (each of the foregoing,
a "Payment Default") unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist.
(b) Upon (i) the happening of a default (other than a Payment
Default) that permits the holders of Senior Debt (or a percentage thereof) to
declare such Senior Debt to be due and payable and (ii) written notice of such
default given to the Company and the Trustee by the Representative under the
Credit Facility or by the holders of an aggregate of at least $25.0 million
principal amount outstanding of any other Senior Debt or their representative at
such holders' direction (a "Payment Notice"), then, unless and until such
default has been cured or waived or otherwise has ceased to exist, no payment
(including any payment which may be payable to any Holder by reason of the
subordination of any other indebtedness or other obligations to, or guarantee
of, the Securities) or distribution (by set-off or otherwise) may be made by or
on behalf of the Company or any Guarantor which is an obligor under such Senior
Debt on account of the principal of, premium, if any, or interest on the
Securities (including any repurchases of any of the Securities), or any other
amount with respect thereto, or on account of the redemption provision of the
Securities, in
115
any such case, other than payments made with Junior Securities. Notwithstanding
the foregoing, unless the Senior Debt in respect of which such default exists
has been declared due and payable in its entirety within 179 days after the
Payment Notice is delivered as set forth above (such period being hereinafter
referred to as the "Payment Blockage Period") (and such declaration has not been
rescinded or waived), at the end of the Payment Blockage Period (and assuming
that no Payment Default Exists), unless Section 10.3 shall be applicable the
Company and the Guarantors shall not be prohibited by the subordination
provisions from paying all sums then due and not paid to the Holders of the
Securities during the Payment Blockage Period due to the foregoing prohibitions
and to resume all other payments as and when due on the Securities. Any number
of Payment Notices may be given; PROVIDED, HOWEVER; that (i) not more than one
Payment Notice shall be given within a period of any 360 consecutive days, and
(ii) no default that existed upon the date of delivery of such Payment Notice
(whether or not such event of default is on the same issue of Senior Debt) shall
be made the basis for the commencement of any other Payment Blockage Period.
(c) In furtherance of the provisions of Section 10.1, in the
event that, notwithstanding the foregoing provisions of this Section 10.2, any
payment or distribution of assets in respect of the Securities, including
principal of or interest on the Securities or to defease or acquire any of the
Securities (including repurchases of Securities pursuant to Section 4.14, 11.1
or 11.2) for Cash, property or securities (excluding payments made with Junior
Securities), or on account of the redemption provisions of the Securities, shall
be made by the Company or any of the Guarantors and received by the Trustee, by
any Holder or by any Paying Agent (or, if the Company is acting as the Paying
Agent, money for any such payment shall be segregated and held in trust), at a
time when such payment or distribution was prohibited by the provisions of this
Section 10.2, then, unless such payment or distribution is no longer prohibited
116
by this Section 10.2, such payment or distribution (subject to the provisions of
Section 10.7) shall be received and held in trust by the Trustee or such Holder
or Paying Agent for the benefit of the holders of Senior Debt of the Company or
such Guarantor, and shall be paid or delivered by the Trustee or such Holders or
such Paying Agent, as the case may be, to the holders of Senior Debt of the
Company or such Guarantor remaining unpaid or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Debt of the Company or such
Guarantor may have been issued, ratably according to the aggregate amounts
unpaid on account of such Senior Debt held or represented by each, for
application to the payment of all Senior Debt in full in Cash or otherwise to
the extent each of the holders of such Senior Debt accept satisfaction of
amounts due by settlement in other than Cash after giving effect to all
concurrent payments and distributions to or for the holders of such Senior Debt.
SECTION 3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
DEBT ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or any Guarantor or
upon any dissolution, winding up, total or partial liquidation or reorganization
of the Company or any Guarantor, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or a similar proceeding or upon assignment
for the benefit of creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Debt of the Company or such
Guarantor, as applicable, shall first be entitled to receive payments in full of
all amounts of Senior Debt in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash or
before the Holders are entitled to receive any payment (including any payment
which may be pay-
117
able to any Holder by reason of the subordination of any other indebtedness or
other obligations to, or guarantee of, the Securities) or distribution on
account of the principal of, premium, if any, and any interest on, or other
amounts with respect to, the Securities (other than Junior Securities);
(b) any payment or distribution of assets of the Company or such
Guarantor of any kind or character from any source, whether in cash, property or
securities (other than Junior Securities), to which the Holders or the Trustee
on behalf of the Holders would be entitled (by set-off or otherwise) except for
the provisions of this Article X, shall be paid by the liquidating Trustee or
agent or other person making such a payment or distribution, directly to the
holders of such Senior Debt or their representative to the extent necessary to
make payment in full on all such Senior Debt remaining unpaid, after giving
effect to all concurrent payments or distributions to the holders of such Senior
Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company or any Guarantor (other than
the Junior Securities), shall be received by the Trustee or the Holders at a
time when such payment or distribution shall be prohibited by the foregoing
provisions, such payment or distribution shall be held in trust for the benefit
of the holders of such Senior Debt, and shall be paid or delivered by the
Trustee or such Holders, as the case may be, to the holders of such Senior Debt
remaining unpaid or to their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt held or represented by each, for application
to the payment of all such Senior Debt may have been issued, ratably according
to the aggregate principal amounts remaining unpaid on account of such Senior
Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in
full in Cash or otherwise to the extent each of the hold-
118
ers of such Senior Debt accept satisfaction of amounts due by settlement in
other than Cash after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
SECTION 4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF
SENIOR DEBT.
Subject to the payment in full in Cash of all Senior Debt of the
Company or any Guarantor as provided herein, the Holders of Securities shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of assets of the Company applicable to the Senior Debt until
all amounts owing on the Securities shall be paid in full, and for the purpose
of such subrogation no such payments or distributions to the holders of such
Senior Debt by or on behalf of the Company or any Guarantor, or by or on behalf
of the Holders by virtue of this Article X, which otherwise would have been made
to the Holders shall, as between the Company or any Guarantor and the Holders,
be deemed to be payment by the Company or any Guarantor or on account of such
Senior Debt, it being understood that the provisions of this Article X are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of such Senior Debt, on the other
hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of amounts
payable under Senior Debt of the Company or any Guarantor, then the Holders
shall be entitled to receive from the holders of such Senior Debt any payments
or distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior Debt in
full in Cash or otherwise to the extent each of such holders accepts
satisfaction of amounts due by settlement in other than Cash.
119
SECTION 5. OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company and any
Guarantors and the Holders, the obligation of each such Person, which is
absolute and unconditional, to pay to the Holders the principal of, premium, if
any, and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company and the Guarantors
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article X, of the holders of Senior Debt in respect
of Cash, property or securities of the Company and the Guarantors received upon
the exercise of any such remedy. Notwithstanding anything to the contrary in
this Article X or elsewhere in this Indenture or in the Securities, upon any
distribution of assets of the Company and the Guarantors referred to in this
Article X, the Trustee, subject to the provisions of Sections 7.1 and 7.2, and
the Holders shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
Trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other Indebtedness of
the Company or any Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article X so long as such court has been apprised of the provisions of,
or the order, decree or certificate makes reference to, the provisions of this
Article X. Nothing in this Section 10.5 shall apply to the
120
claims of, or payments to, the Trustee under or pursuant to Section 7.7.
Subject to the provisions of Section 7.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a trustee or agent on
behalf of such holder) to establish that such notice has been given by a
holder of Senior Debt (or a trustee or agent on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of a person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article X, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article X, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the
benefit of such person pursuant to the terms of this Indenture pending
judicial determination as to the rights of such person to receive such
payment.
SECTION 6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received, no later than one Business Day prior to such payment, written
notice thereof from the Company or from one or more holders of Senior Debt or
from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and
7.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
121
SECTION 7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Securityholders
and, to the extent (i) the making of such deposit by the Company shall not be
in contravention of any term or provision of the New Credit Facility and (ii)
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article X. Otherwise, any deposit of assets
with the Trustee or the Agent (whether or not in trust) for the payment of
principal of or interest on any Securities shall be subject to the provisions
of Sections 10.1, 10.2, 10.3 and 10.4.
SECTION 8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Debt may at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities without
incurring any responsibility to the Holders extend, renew, modify or amend
the terms of the Senior Debt or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company and the
Guarantors and any person liable in any manner for the collection of Senior
Debt, all without affecting the subordination provisions or liabilities or
obligations of the parties to this Indenture or the Holders or to the holders
of the Senior Debt.
122
SECTION 9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of assets and liabilities of the
Company or any Guarantor), the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
the Senior Debt or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Securities. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Debt or their representative to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior Debt or
their representative to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 10. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee shall be entitled to all of the rights set forth in this
Article X in respect of any Senior Debt at any time held by it to the same
extent as any other holder
123
of Senior Debt, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
SECTION 11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this
Article X shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 6.1 or in any way prevent the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
SECTION 12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders (other
than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the
Company, any Guarantor or any other Person, cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article
X or otherwise. Nothing in this Section 10.12 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Debt or their representative.
With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically
set forth in this Article X and no implied covenants or obligations with
respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
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ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON A
CHANGE OF CONTROL.
(a) In the event that a Change of Control has occurred, each Holder
shall have the right, at such Holder's option, pursuant to an irrevocable and
unconditional offer by the Company (the "Change of Control Offer"), to
require the Company to repurchase all or any part of such Holder's Securities
(provided, that the principal amount of such Securities at maturity must be
$1,000 or an integral multiple thereof) on a date (the "Change of Control
Purchase Date") that is no later than 35 Business Days after the Occurrence
of such Change of Control, at a cash price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof, together with accrued
and unpaid interest, if any, to the Change of Control Purchase Date.
(b) In the event of a Change of Control, the Company shall be
required to commence a Change of Control Offer as follows:
(1) the Change of Control Offer shall commence within 10 Business
Days following the occurrence of the Change of Control;
(2) the Change of Control Offer shall remain open for 20 Business
Days, except to the extent that a longer period is required by applicable
law, but in any case not more than 35 Business Days following commencement
(the "Change of Control Offer Period");
(3) upon the expiration of a Change of Control Offer, the Company
shall promptly purchase all of the properly tendered Securities at the Change
of Control Purchase Price;
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(4) if the Change of Control Payment Date is on or after a Record
Date and on or before the related interest payment date, any accrued interest
will be paid to the Person in whose name a Security is registered at the
close of business on such Record Date, and no additional interest will be
payable to Securityholders who tender Securities pursuant to the Change of
Control Offer;
(5) the Company shall provide the Trustee and the Paying Agent with
notice of the Change of Control Offer at least three Business Days before the
commencement of any Change of Control Offer; and
(6) on or before the commencement of any Change of Control Offer,
the Company or the Registrar (upon the request and at the expense of the
Company) shall send, by first-class mail, a notice to each of the
Securityholders, which (to the extent consistent with this Indenture) shall
govern the terms of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is being made pursuant
to such notice and this Section 11.1 and that all Securities, or portions
thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the
amount of accrued and unpaid interest, subject to clause (b)(4) above), the
Change of Control Purchase Date and the Change of Control Put Date (as
defined below);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
126
(iv) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the last paragraph of this Section
11.1 or such payment is prevented, any Security, or portion thereof, 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 have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying Agent
(which may not for purposes of this Section 11.1, notwithstanding anything in
this Indenture to the contrary, be the Company or any Affiliate of the
Company) at the address specified in the notice prior to the close of
business on the earlier of (a) the third Business Day prior to the Change of
Control Payment Date and (b) the third Business Day following the expiration
of the Change of Control Offer (such earlier date being the "Change of
Control Put Date");
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this Indenture to
the contrary, be the Company or any Affiliate of the Company) receives, up to
the close of business on the Change of Control Put Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the Holder is withdrawing and a statement that such
Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(vii) a brief description of the events resulting in such
Change of Control.
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Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender
offers, if applicable, and any provisions of this Indenture which conflict
with such laws shall be deemed to be superseded by the provisions of such
laws.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer on or before the Change of Control
Put Date, (ii) deposit with the Paying Agent Cash sufficient to pay the
Change of Control Purchase Price for all Securities or portions thereof so
tendered and (iii) deliver to the Registrar Securities so accepted together
with an Officers' Certificate listing the aggregate principal amount of the
Securities or portions thereof being purchased by the Company. The Paying
Agent shall on the Change of Control Purchase Date or promptly thereafter
mail to Holders of Securities so accepted payment in an amount equal to the
Change of Control Purchase Price for such Securities, and the Trustee or its
authenticating agent shall promptly authenticate and the Registrar shall mail
or deliver (or cause to be transferred by book entry) to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered; provided, however, that each such new Security will be in a
principal amount of $1,000 or an integral multiple thereof. Any Securities
not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the consummation thereof.
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ARTICLE XII
GUARANTY
SECTION 6. GUARANTY.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the
Guarantors hereby irrevocably and unconditionally guarantees (the
"Guaranty"), jointly and severally, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company under this
Indenture or the Securities, that: (w) the principal and premium (if any) of
and interest on the Securities will be paid in full when due, whether at the
Maturity Date or Interest Payment Date, by acceleration, call for redemption,
upon a Change of Control Offer, upon an Asset Sale Offer or otherwise; (x)
all other obligations of the Company to the Holders or the Trustee under this
Indenture or the Securities will be promptly paid in full or performed, all
in accordance with the terms of this Indenture and the Securities; and (y) in
case of any extension of time of payment or renewal of any Securities or any
of such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity,
by acceleration, call for redemption, upon a Change of Control Offer, upon an
Asset Sale Offer or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Guarantor shall be jointly and severally
obligated to pay the same before failure so to pay becomes an Event of
Default. If the Company or a Guarantor defaults in the payment of the
principal of, premium, if any, or interest on, the Securities when and as the
same shall become due, whether upon maturity, acceleration, call for
redemption, upon a Change
129
of Control Offer, upon an Asset Sale Offer or otherwise, without the
necessity of action by the Trustee or any Holder, each Guarantor shall be
required, jointly and severally, to promptly make such payment in full.
(b) Each Guarantor hereby agrees that its obligations with regard
to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any delays in obtaining or realizing upon
or failures to obtain or realize upon collateral, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge
or defense of a guarantor (except as provided in Sections 12.4 and 12.5).
Each 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 or right
to require the prior disposition of the assets of the Company to meet its
obligations, protest, notice and all demands whatsoever and covenants that
this Guaranty will not be discharged (except to the extent released pursuant
to Section 12.4 or 12.5) except by complete performance of the obligations
contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian,
trustee, or similar official acting in relation to the Company or such
Guarantor, any amount paid by either the Company or such Guarantor to the
Trustee or such Holder, this Guaranty, to the extent theretofore discharged,
shall be reinstated in full force and effect (except to the extent released
pursuant to Section 12.4 or 12.5). Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between such
Guaran-
130
tor, on the one hand, and the Holders and the Trustee, on the other hand, (i)
the maturity of the obligations guaranteed hereby may be accelerated as provided
in Section 6.2 for the purposes of this Guaranty, notwithstanding any stay,
injunction or other prohibition preventing such acceleration as to the Company
of the obligations guaranteed hereby, and (ii) in the event of any declaration
of acceleration of those obligations as provided in Section 6.2, those
obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Guaranty.
(d) Each Guarantor and by its acceptance of a Security issued
hereunder each Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor set forth in Section 12.1(a) not
constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its guarantee set forth in Section
12.1(a) shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
its guarantee or pursuant to the following paragraph of this Section 12.1(d),
result in the obligations of such Guarantor under such guarantee not
constituting such a fraudulent transfer or conveyance.
Each Guarantor that makes any payment or distribution under Section
12.1(a) shall be entitled to a contribution from each other Guarantor equal to
its Pro Rata Portion of such payment or distribution. For purposes of the
foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of the
net assets of all Guarantors held by such Guarantor, determined in accordance
with GAAP.
131
(e) It is the intention of each Guarantor and the Company that the
obligations of each Guarantor hereunder shall be joint and several and in,
but not in excess of, the maximum amount permitted by applicable law.
Accordingly, if the obligations in respect of the Guaranty would be annulled,
avoided or subordinated to the creditors of any Guarantor by a court of
competent jurisdiction in a proceeding actually pending before such court as
a result of a determination both that such Guaranty was made without fair
consideration and, immediately after giving effect thereto, such Guarantor
was insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of such Guarantor under such
Guaranty shall be reduced by such court if and to the extent such reduction
would result in the avoidance of such annulment, avoidance or subordination;
PROVIDED, HOWEVER, that any reduction pursuant to this paragraph shall be
made in the smallest amount as is strictly necessary to reach such result.
For purposes of this paragraph, "fair consideration", "insolvency", "unable
to pay its debts as they mature", "unreasonably small capital" and the
effective times of reductions, if any, required by this paragraph shall be
determined in accordance with applicable law.
SECTION 2. EXECUTION AND DELIVERY OF GUARANTY.
Each Guarantor shall be deemed to have signed on each Security issued
hereunder the notation of guarantee set forth on the form of the Securities
attached hereto as Exhibit A to the same extent as if the signature of such
Guarantor appeared on such Security. The delivery of any Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the guaranty set forth in Section 12.1 on behalf of each
Guarantor. The notation of a guaranty set forth on any Security shall be null
and void and of no further effect with respect to the guaranty of any
Guarantor which, pursuant to Section 12.4 or Section 12.5, is released from
such guaranty.
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SECTION 3. SUBSIDIARY GUARANTORS.
(i) All present Subsidiaries of the Company and their Subsidiaries
(other than the Excluded Subsidiaries), and (ii) all future Subsidiaries of
the Company and their Subsidiaries (other than Excluded Subsidiaries), which
are not prohibited from becoming guarantors by law or by the terms of any
Acquired Indebtedness or any agreement (other than an agreement entered into
in connection with the transaction resulting in such person becoming a
Subsidiary of the Company or its Subsidiaries) to which such Subsidiary is a
party ("Future Subsidiary Guarantors"), jointly and severally, will guaranty
irrevocably and unconditionally all principal, premium, if any, and interest
on the Securities on a senior subordinated basis; PROVIDED, HOWEVER, that
upon any change in the law, Acquired Indebtedness or any agreement (whether
by expiration, termination or otherwise) which no longer prohibits a
Subsidiary of the Company from becoming a Subsidiary Guarantor, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor;
PROVIDED, FURTHER, in the event that any Subsidiary of the Company or their
Subsidiaries becomes a guarantor of any other Indebtedness of the Company or
any of its Subsidiaries or any of their Subsidiaries, such Subsidiary shall
immediately thereafter become a Subsidiary Guarantor.
SECTION 4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or any other Guarantor. Upon any such consolidation or
merger, the guarantees (as set forth in Section 12.1) of the Guarantor which
is not the survivor of the merger or consolidation, and of any Subsidiary of
such Guarantor that is also a Guarantor, shall be released and shall no
longer have any force or effect.
133
(b) Nothing contained in this Indenture shall prevent any sale or
conveyance of assets of any Guarantor (whether or not constituting all or
substantially all of the assets of such Guarantor) to any Person, provided
that the Company shall comply with the provisions of Section 4.14 and 4.17,
and provided further that, in the event that all or substantially all of the
assets of a Guarantor are sold or conveyed, the guarantees of such Guarantor
(as set forth in Section 12.1) shall be released and shall no longer have any
force or effect.
(c) Except as provided in Section 12.4(a) or Section 12.5, each
Guarantor shall not, directly or indirectly, consolidate with or merge with
or into another Person, unless (i) either (a) the Guarantor is the continuing
entity or (b) the resulting or surviving entity is a corporation organized
under the laws of the United States, any state thereof or the District of
Columbia and expressly assumes by supplemental indenture all of the
obligations of the Guarantor in connection with the Securities and this
Indenture; (ii) no Default or Event of Default would occur as a consequence
of (after giving effect, on a PRO FORMA basis, to) such transaction; and
(iii) the Guarantor has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation or merger and if
a supplemental indenture is required, such supplemental indenture comply with
this Indenture and that all conditions precedent herein relating to such
transaction have been satisfied.
(d) Upon any consolidation or merger of a Guarantor in accordance
with Section 12.4 hereof, the successor corporation formed by such
consolidation or into which the Guarantor is merged shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation
had been named herein as the Guarantor, and when a successor corporation duly
assumes all
134
of the obligations of the Guarantor pursuant hereto and pursuant to the
Securities, the Guarantor shall be released from such obligations.
SECTION 5. RELEASE OF GUARANTORS.
(a) Without any further notice or action being required by any
Person, any Guarantor, and each Subsidiary of such Guarantor that is also a
Guarantor, shall be fully and conditionally released and discharged from all
obligations under its guarantee and this Indenture, upon (i) the sale or
other disposition of all or substantially all of the assets or properties of
such Guarantor, or 50% or more of the Equity Interests of any such Guarantor
to Persons other than the Company and their Subsidiaries or (ii) the
consolidation or merger of any such Guarantor with any Person other than the
Company or a Subsidiary of the Company, if, as a result of such consolidation
or merger, Persons other than the Company and their Subsidiaries beneficially
own more than 50% of the capital stock of such Guarantor, PROVIDED that, in
either such case, the Net Cash Proceeds of such sale, disposition, merger or
consolidation are applied in accordance with Section 4.14 of this Indenture;
or (iii) a Legal Defeasance or Covenant Defeasance, as set forth in Article
VIII.
(b) The releases and discharges set forth in Section 12.5(a) shall
be effective (i) in the case of releases and discharges effected pursuant to
clause (i) or (ii) of Section 12.5(a) by virtue of a sale, disposition,
consolidation or merger, on the date of consummation thereof and (ii) in the
case of releases and discharges effected pursuant to clause (iii) of Section
12.5(a), upon the date of Covenant Defeasance or Legal Defeasance, as
applicable. At the written request of the Company, the Trustee shall
promptly execute and deliver appropriate instruments in forms reasonably
acceptable to the Company evidencing and further implementing any releases
and discharges pursuant to the foregoing provisions. If the Company desires
the in-
135
struments evidencing or implementing any releases or discharges to be
executed prior to the effectiveness of such releases and discharges as set
forth above, such instruments may be made conditional upon the occurrence of
the events necessary to cause the effectiveness of such releases and
discharges, as specified in the first sentence of this Section 12.5.
(c) Notwithstanding the foregoing provisions of this Article XII,
(i) any Guarantor whose guarantee would otherwise be released pursuant to the
provisions of this Section 12.5 may elect, by written notice to the Trustee,
to maintain such guarantee in effect notwithstanding the event or events that
otherwise would cause the release of such guarantee (which election to
maintain such guarantee in effect may be conditional or for a limited period
of time), and (ii) any Subsidiary of the Company which is not a Guarantor may
elect, by written notice to the Trustee, to become a Guarantor (which
election may be conditional or for a limited period of time).
SECTION 6. CERTAIN BANKRUPTCY EVENTS.
Each Guarantor hereby covenants and agrees, to the fullest extent that
it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, such
Guarantor shall not file (or join in any filing of), or otherwise seek to
participate in the filing of, any motion or request seeking to stay or to
prohibit (even temporarily) execution on the Guaranty and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the Bankruptcy Law or otherwise.
136
ARTICLE XIII
MISCELLANEOUS
SECTION 1. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION2. NOTICES.
Any notices or other communications to the Company or any Guarantor,
Paying Agent, Registrar, Securities Custodian, transfer agent or the Trustee
required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or any Guarantor:
Jacor Communications Company
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attention: Treasurer
Telephone: (513) 621-1300
Telecopy: (513) 621-6087
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
137
Attention: Corporate Trust Trustee
Administration
Telephone: (212) 815-5741
Telecopy: (212) 815-5915
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or
made as of the date so delivered, if personally delivered; when receipt is
acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA section 312(c).
138
SECTION 4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, such Person shall furnish to
the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been met; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee), stating that, in the opinion of such counsel,
all such conditions precedent have been met; PROVIDED, HOWEVER, that in the
case of any such request or application as to which the furnishing of
particular documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished under this
Section 13.4.
SECTION 5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
139
(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 met; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been met; PROVIDED, HOWEVER, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
140
SECTION 7. NON-BUSINESS DAYS.
If a payment date is not a Business Day at such place, payment may be
made at such place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
SECTION 8. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE
GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
EACH OF THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN ANY
OTHER JURISDICTION.
141
SECTION 9. 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 Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 10. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future of the Company, the Guarantors or any
successor entity, shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or this
Indenture by reason of his or its status as such stockholder, partner, employee,
officer or director. Each Securityholder by accepting a Security waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 11. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
142
SECTION 13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
143
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
JACOR COMMUNICATIONS COMPANY
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President, Chief
Financial Officer and Secretary
PARENT GUARANTOR
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President, Chief
Financial Officer and Secretary
SUBSIDIARY GUARANTORS:
BROADCAST FINANCE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE FILMS, INC.
144
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE GUARANTORS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE GUARANTORS II, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE GUARANTORS II, LTD.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE MOBILE SYSTEMS INT'L N.V.
145
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CINE MOVIL S.A. DE C.V.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
CITICASTERS CO.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
F.M.I. PENNSYLVANIA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
GACC-N26LB, INC.
146
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
GACC-340, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
147
GEORGIA NETWORK EQUIPMENT, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
GREAT AMERICAN MERCHANDISING GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
INMOBILARIA RADIAL, S.A. DE C.V.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Treasurer
148
JACOR BROADCASTING CORPORATION
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF ATLANTA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF COLORADO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF FLORIDA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
149
JACOR BROADCASTING OF IDAHO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF IOWA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF KNOXVILLE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF LEXINGTON, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
150
JACOR BROADCASTING OF ST. LOUIS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF SAN DIEGO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF SARASOTA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
JACOR BROADCASTING OF TAMPA BAY, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
151
JACOR CABLE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
LOCATION PRODUCTIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
LOCATION PRODUCTIONS II, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST CENTER, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
152
NOBLE BROADCAST GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
153
NOBLE BROADCAST HOLDINGS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST LICENSES, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST OF COLORADO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
NOBLE BROADCAST OF ST. LOUIS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
154
NOBLE BROADCAST OF SAN DIEGO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
155
NOBLE BROADCAST OF TOLEDO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
NOBRO, S.C.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Treasurer
NOVA MARKETING GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
SPORTS RADIO BROADCASTING, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
156
SPORTS RADIO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
TAFT-TCI SATELLITE SERVICES, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
THE SY FISCHER COMPANY AGENCY, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
WHOK, INC.
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
VTTV PRODUCTIONS
157
By: /s/ R. Christopher Weber
------------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Paul J. Schmalzel
------------------------------------------
Name: Paul J. Schmalzel
Title: Assistant Treasurer
158
Exhibit A
[FORM OF SECURITY]
JACOR COMMUNICATIONS COMPANY
9 3/4% SENIOR SUBORDINATED NOTE
DUE 2006
CUSIP:
No. $ _________
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company" which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to _______,
or registered assigns, the principal sum of _____ Dollars, on December 15, 2006.
Interest Payment Dates: June 15 and December 15; commencing June 15,
1997.
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated: December 17, 1996
Jacor Communications Company
a Florida corporation
A-1
By:
-------------------------------------
Name:
Title:
Attest:
---------------------------
Secretary
A-2
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee and
Authenticating Agent
By:
--------------------------------
Authorized Signatory
Dated: December 17, 1996
A-3
JACOR COMMUNICATIONS COMPANY
9 3/4% SENIOR SUBORDINATED NOTE
DUE 2006
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the Company or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. , has an interest herein.(1)
1. INTEREST.
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of 9 3/4% per annum from the date of issuance until
maturity. To the extent it is lawful, the Company promises to pay interest on
any interest payment due but
- - --------------------
(1) This paragraph should only be added if the Security is issued in global
form.
A-4
unpaid on such principal amount at a rate of 9 3/4% per annum compounded
semi-annually.
The Company will pay interest semi-annually on June 15 and December 15
of each year or, if any such day is not a Business Day, on the next succeeding
Business Day (each, an "Interest Payment Date"), commencing June 15, 1997.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
the date of issuance. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on June 1 and December 1 immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Company shall pay principal and
interest in such coin or currency of the United States of America as at the time
of payment shall be legal tender for payment of public and private debts
("Cash"). The Securities will be payable as to principal, premium and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York or, at the option of the Company, payment
of principal, premium and interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest and premium on all Global Securities and all other
Securities the Holders of which shall have provided written wire transfer
instructions to the Company or the Paying Agent at least 15 days prior to the
date for payment.
3. PAYING AGENT AND REGISTRAR.
A-5
Initially, The Bank of New York will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of
December 17, 1996 (the "Indenture"), among the Company, Jacor Communications,
Inc., a Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors
named therein (the "Subsidiary Guarantors" together with the Parent Guarantor,
the "Guarantors"), and The Bank of New York (the "Trustee" which term includes
any successor Trustee under the Indenture). Capitalized terms herein are used
as defined in the Indenture unless otherwise defined herein. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act, as in effect on the date of
the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are senior subordinated obligations of the Company limited in
aggregate principal amount to $170,000,000. The Securities are, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be provided in the Indenture
and (c) appoints the Trustee his attorney-in-fact for such purpose. The
Securities are guaranteed on a senior subordinated basis by the Guarantors.
A-6
5. REDEMPTION.
The Securities may be redeemed, in whole or in part, at any time on or
after December 15, 2001, at the option of the Company, at the Redemption Price
(expressed as a percentage of principal amount) set forth below with respect to
the indicated Redemption Date, in each case (subject to the right of Holders of
record on a Record Date that is on or prior to such Redemption Date to receive
interest due on the Interest Payment Date to which such Record Date relates),
plus any accrued but unpaid interest to the Redemption Date. The Securities may
not be so redeemed prior to December 15, 2001.
If redeemed during
the 12-month period
commencing Redemption Price
------------------- ----------------
2001 . . . . . . . . . 104.875%
2002 . . . . . . . . . 103.250%
2003 . . . . . . . . . 101.625%
2004 and thereafter. . 100.000%
Any such redemption will comply with Article III of the Indenture.
6. NOTICE OF REDEMPTION.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been depos-
A-7
ited with the Paying Agent on such Redemption Date and payment of the Securities
called for redemption is not otherwise prohibited, the Securities called for
redemption will cease to bear interest and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, 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 register the transfer
of or exchange any Securities (a) selected for redemption except the unredeemed
portion of any Security being redeemed in part or (b) for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase or
redemption and ending at the close of business on the day of such mailing.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
A-8
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, Cash, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the
Securities to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the restrictive
covenants described in paragraph 12 below, but excluding their obligation to pay
the principal of and interest on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. An amendment, supplement or waiver
with respect to Section 11.1 (Change of Control Offer) in a manner adverse to
the Holders, requires not less than 75% of the aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may under certain circumstances amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency, or make any other change that does not adversely affect the
rights of any Holder of a Security.
A-9
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and the Guarantors to, among other things, incur additional Indebtedness
and Disqualified Equity Interests, pay dividends or make certain other
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Company must periodically report to the
Trustee on compliance with such limitations.
13. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with accrued interest to the Change of Control Purchase Date. Holders
of Securities will receive a Change of Control Offer from the Company prior to
any related Change of Control Purchase Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Guarantors or any of their respective Subsidiaries to sell assets.
In the event the proceeds from a permitted Asset Sale exceed certain amounts, as
specified in the Indenture, the Company will be required to use the proceeds of
such Asset Sale in the manner required by the Indenture, including (i) to
reinvest such proceeds in its business, (ii) to repay Senior Debt, (iii) to make
an offer to purchase the Citicasters Securities, (iii) to make an offer to
purchase the 10 1/8% Notes, or (iv) to make an offer to purchase a certain
amount of each Holder's
A-10
Securities at 100% of the principal amount thereof, plus accrued interest, if
any, to the purchase date.
14. NOTATION OF GUARANTY.
As set forth more fully in the Indenture, the Persons constituting
Guarantors from time to time, in accordance with the provisions of the
Indenture, unconditionally and jointly and severally guarantee, in accordance
with Section 12.1 of the Indenture, to the Holder and to the Trustee and its
successors and assigns, that (i) the principal of and interest on the Security
will be paid, whether at the Maturity Date or Interest Payment Dates, by
acceleration, call for redemption upon a Change of Control Offer, upon an Asset
Sale Offer or otherwise, and all other obligations of the Company to the Holder
or the Trustee under the Indenture or this Security will be promptly paid in
full or performed, all in accordance with the terms of the Indenture and this
Security, and (ii) in the case of any extension of payment or renewal of this
Security or any of such other obligations, they will be paid in full when due or
performed in accordance with the terms of such extension or renewal, whether at
the Maturity Date, as so extended, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise. Such guarantees
shall cease to apply, and shall be null and void, with respect to any Guarantor
who, pursuant to Article XII of the Indenture, is released from its guarantees,
or whose guarantees otherwise cease to be applicable pursuant to the terms of
the Indenture.
A-11
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
17. TRUSTEE OR AGENT DEALINGS WITH THE COMPANY.
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates as if it were not the Trustee and such Agent.
A-12
18. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future, of the Company, the Guarantors or
any successor entity shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or the
Indenture by reason of his or its status as such stockholder, partner, employee,
officer or director. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security 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
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-13
22. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Jacor Communications Company
50 East RiverCenter Boulevard
12th Floor
Covington, Kentucky 41011
Attn: Corporate Secretary
A-14
FORM OF ASSIGNMENT
I or we assign this Security to
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
- - -------------------------
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
---------- --------------------------------
- - --------------------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guaranty(*)
- - --------------------
(*) NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(I) The Securities (continued...)
A-15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box: / / Section 4.14 / /Section 11.1
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or Article XI of the Indenture, as the case
may be, state the amount you want to be purchased: $________
Date: Signature:
----------------- ----------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guaranty(*)(*)
- - --------------------
(...continued)
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP) or (iv) in such other guarantee program
acceptable to be Trustee.
(*)(*) NOTICE: The Signature must be guaranteed by an Institution which
is a member of one of the following recog- nized signature
Guarantee Programs: (I) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP)
or (iv) in such other guarantee program acceptable to be Trustee.
A-16
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(*)(*)(*)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Security Signatory of
Amount Amount of following Trustee or
Date of of this Global this Global such decrease (or Securities
Exchange Security Security increase) Custodian
- - --------------------------------------------------------------------------------
- - --------------------
(*)(*)(*) This schedule should only be added if the Security is issued in
global form.
A-17
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: 9 3/4% SENIOR SUBORDINATED NOTES DUE 2006 OF JACOR COMMUNICATIONS COMPANY
This Certificate relates to $______ principal amount of Securities held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
/ / has requested the Registrar by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ / has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Date:
---------------------
A-18
Annex I
SELECTED DEFINITIONS AND SECTIONS
FROM THE CITICASTERS INDENTURE
"AFFILIATE" means, with respect to any specified Person, and 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.
"APPLICABLE DOCUMENTS" means collectively the Purchase Agreement, the
Registration Rights Agreement, this Indenture and the Citicasters Securities.
"APPLICABLE PREMIUM" means, with respect to any Note called for
redemption by Citicasters after a Change of Control, the greater of (i) 1.0% of
the then outstanding principal amount of such Note, and (ii) the total, if
greater than zero, of (A) the present value of all required interest and
principal payments due on such Note, computed using a discount rate equal to the
Treasury Rate plus 75 basis points, minus (B) the then outstanding principal
amount of such Note, minus (C) any accrued and unpaid interest paid on such Note
on the Redemption Date.
"ASSET SALE" by any Person means any transfer, conveyance, sale, lease
or other disposition by such Person or any of its Subsidiaries (including a
consolidation or merger or other sale of any such Subsidiaries with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly-Owned
Annex - 1
Subsidiary of such Person) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Subsidiary of such Person,
(ii) substantially all of the assets of such Person or any of its Subsidiaries
or (iii) other assets or rights of such Person or any of its Subsidiaries,
whether owned on the date of this Indenture or thereafter acquired, in one or
more related transactions. The term "Asset Sale" shall not include (i) any
Permitted Disposition or (ii) any sale or issuance by Citicasters of Qualified
Capital Stock of Citicasters.
"BANK AGENT CONSENT" means, with respect to any Asset Sale Payment (as
defined in the Citicasters Securities Asset Sale Offer), the written consent of
the Representative or Representatives of holders of at least a majority in
outstanding principal amount of Indebtedness under the Bank Credit Agreements
(including unused commitments which, if funded, would constitute Senior Bank
Debt) delivered by such Representative or Representatives to Citicasters, with a
copy to the Trustee, prior to such Asset Sale Payment, pursuant to which such
Representative or Representatives consent to such Asset Sale Payment and,
consequently, the related permanent reduction (in the amount of such Asset Sale
Payment) of the amount of Designated Senior Debt available to be Incurred
pursuant to Section 4.7(c)(i). As of the Issue Date, The First National Bank of
Boston would be the Representative entitled to give the Bank Agent Consent.
"BANK CREDIT AGREEMENTS" means (i) the Loan Agreement, dated as of
August 20, 1993, and amended and restated as of November 30, 1993, among the
Company, Citicasters Co. (formerly known as Great American Broadcasting
Company), Continental Bank, N.A., and The First National Bank of Boston, as
managing agents, and the lenders party thereto (such Loan Agreement shall be
referred to herein as the "1993 Credit Agreement"), (ii) the loan documents
relating to a $25,000,000 Senior Secured Seven-Year Revolving Credit and a
$125,000,000 Senior Secured Seven-Year Reducing Revolver under which Citicasters
Co. is the borrower,
Annex - 2
Citicasters Corp. and the Company are Guarantors, The First National Bank of
Boston is the Administrative Agent and Continental Bank, N.A. is the Collateral
Agent (such facilities shall be referred to herein as the "New Bank Credit
Facility"), (iii) each instrument pursuant to which Obligations under the Bank
Credit Agreements described in (i) and (ii) above, or any subsequent Bank Credit
Agreements, are amended, deferred, extended, renewed, replaced, refunded or
refinanced, in whole or in part, and (iv) each instrument now or hereafter
evidencing, governing, guarantying or securing any Indebtedness under any Bank
Credit Agreements, in each case, as modified, amended, restated or supplemented
from time to time.
"BANKRUPTCY LAW" means Title 11, United States Code or any similar
Federal or State law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BROADCASTING STATION" means all related licenses, franchises and
permits issued under federal, state or local laws from time to time which
authorize a Person to receive or distribute, or both, over the airwaves, audio,
visual, or microwave signals within a geographic area for the purpose of
providing commercial broadcasting television or radio, together with all
Property owned or used in connection with the programming PROVIDED pursuant to,
and all interest of such Person to receive revenues from any other Person which
derives revenues from or pursuant to, said licenses, franchises and permits.
Annex - 3
"CAPITAL EXPENDITURE" means any amount paid in connection with the
purchase or construction of any assets acquired (other than from an
Affiliate) or constructed after the date hereof (a) to the extent the purchase
or construction prices for such assets are or should be included in "addition to
property, plant or equipment" in accordance with GAAP and (b) if the acquisition
or construction of such assets is not part of any acquisition of a Person.
"CAPITAL LEASE OBLIGATION" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
GAAP. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. Capital Lease Obligations shall not include payments due under any
Film Contracts.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights, participations, each class of common stock and preferred stock of such
Person and/or other equivalents (however designated) of corporate stock or
equity participations, including each class of common stock and preferred stock
of such Person and partnership interests, whether general or limited, of such
Person.
.
"CASH EQUIVALENTS" means:
(1) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case maturing
within 360 days after the date of acquisition thereof;
(2) marketable direct obligations issued by any state
of the United States or any
Annex - 4
political subdivision of any such state or any public instrumentality
thereof maturing within 360 days after the date of acquisition thereof
and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.;
(3) commercial paper maturing no more than 360 days
after the date of acquisition thereof, issued by a corporation
organized under the laws of any state of the United States or of the
District of Columbia and, at the time of acquisition, having a rating
in one of the two highest rating categories obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc.;
(4) money market funds whose investments are made
solely in securities described in clause (1) maturing within one
(1) year after the date of acquisition thereof;
(5) certificates of deposit maturing within 360 days
after the date of acquisition thereof, issued by any commercial bank
that is a member of the Federal Reserve System that has capital,
surplus and undivided profits (as shown on its most recent statement
of condition) aggregating not less than $100,000,000 and is rated A or
better by Moody's Investors Service, Inc. or Standard & Poor's
Corporation; and
(6) repurchase agreements entered into with any
commercial bank of the nature referred to in clause (5), secured by a
fully perfected Lien in any obligation of the type described in any of
clauses (1) through (5), having a fair market value at the time such
repurchase agreement is entered into of not less than 100% of
Annex - 5
the repurchase obligation thereunder of such commercial bank.
"CITICASTERS ASSET SALE REPURCHASE AMOUNT" means the sum of
(A) Cumulative Operating Cash Flow (as defined herein) of Citicasters and its
Subsidiaries less 1.4 times Cumulative Total Interest Expense of Citicasters and
its Subsidiaries, plus (B) an amount equal to 100% of the aggregate Qualified
Capital Stock Proceeds received by Citicasters from the issuance and sale (other
than to a Subsidiary of Citicasters) of Qualified Capital Stock to the extent
that such proceeds are not used to redeem, repurchase, return or otherwise
acquire Capital Stock or any Indebtedness of Citicasters or any Subsidiary
pursuant to clause (ii) of the immediately following paragraph and
(C) $5,000,000, less the aggregate amount of all Restricted Payments (excluding
all payments, investments, redemptions, repurchase, retirements and other
acquisitions described in clause (ii) of the immediately following
paragraph) declared or made after February 18, 1994.
Notwithstanding the foregoing definition, the following Restricted
Payments may be made: (i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture; (ii) the redemption,
repurchase, retirement or other acquisition for value of any Capital Stock or
any Indebtedness of Citicasters or any Subsidiary in exchange for, or out of the
Qualified Capital Stock Proceeds of, the substantially concurrent sale (other
than to Citicasters or a Subsidiary of Citicasters) of Qualified Capital Stock
of Citicasters; and (iii) the redemption of Citicasters Securities under the
circumstances PROVIDED in Article 3 and in Sections 11.2 and 4.14 of this
Indenture.
"CITICASTERS SECURITIES ASSET SALE OFFER" means an offer to purchase
the Citicasters Securities in accordance with the following procedures:
Annex - 6
(a) Citicasters will not, and will not permit any of its
Subsidiaries to make any Asset Sale, whether in a single transaction or a series
of related transactions, unless: (i) Citicasters or the applicable Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the Property or securities sold or otherwise disposed of (as
determined in good faith by the Board of Directors of Citicasters evidenced by a
Board Resolution); (ii) at least 75% of such consideration is in the form of
cash; PROVIDED, HOWEVER, that the following shall be deemed to be cash for
purposes of this definition: (A) the amount of any liabilities (as shown on
Citicasters' or such Subsidiary's most recent balance sheet or in the notes
thereto) of Citicasters or such Subsidiary (other than liabilities that are by
their terms subordinated to the Citicasters Securities) that are assumed by the
transferee of any such assets, and (B) any notes or other obligations received
by Citicasters or any such Subsidiary from a transferee that are converted by
Citicasters or such Subsidiary into cash within six months of such Asset Sale;
PROVIDED FURTHER, that the 75% limitation referred to in clause (ii) above shall
not apply (AA) to any sale, transfer or other disposition of assets constituting
one or more Broadcasting Stations in which the cash portion of such
consideration received therefor, determined in accordance with the foregoing
proviso, is equal to or greater than what the after-tax net proceeds would have
been had such transaction complied with the aforementioned 75% limitation or
(BB) to a so-called "like-kind" exchange of assets, so long as (1) the assets so
received consist principally of cash or Cash Equivalents, the assumption of
liabilities and the acquisition of assets to be used for or in connection with
the business of owning and operating Broadcasting Stations, and (2) at the time
of and after giving effect to such exchange, and treating any Indebtedness
Incurred as a result of such exchange as having been Incurred at the time of
such exchange, no Default or Event of Default shall have occurred and be
continuing and Citicasters could Incur at least $1.00 of additional Indebt-
Annex - 7
edness pursuant to Section 4.7(b); PROVIDED YET FURTHER that the 75% limitation
referred to in clause (ii) above shall be deemed to have been satisfied if (AAA)
at the date of the Asset Sale and after giving effect thereto, Section 4.5(a)
would permit Citicasters to make a Restricted Payment in an amount equal to the
difference between the actual cash consideration received by Citicasters or the
applicable Subsidiary with respect to such Asset Sale and 75% of the fair market
value of the Property or securities sold or otherwise disposed of in such Asset
Sale (determined as provided above) and (BBB) Citicasters treats the receipt of
non-cash consideration in an amount equal to the amount set forth in the
foregoing clause (AAA) as a Restricted Payment under Section 4.5(a), whether or
not such receipt would otherwise be classified as an Investment or a Permitted
Investment; and (iii) the Excess Proceeds received by Citicasters or such
Subsidiary, as the case may be, from such Asset Sale are applied in accordance
with this definition.
(b) The Company shall use the Excess Proceeds from New World
Station Sales (i) first to repay amounts outstanding under the 1993 Credit
Agreement that is a part of the Bank Credit Agreements and the WGHP Notes and
(ii) then to redeem $75,000,000 principal amount of Notes at a redemption price
of $976.75 per $1,000 principal amount, plus accrued and unpaid interest through
the date of redemption. The mandatory redemption of Notes described in the
foregoing clause (ii) shall be made in accordance with the applicable provisions
of Article 3 hereof and the Redemption Date with respect to the full $75,000,000
principal amount of Notes to be redeemed shall be no later than the 15th day
after the date on which an aggregate of $230,000,000 of Excess Proceeds
(calculated for purposes of this Section 4.13(b) without regard to the deduction
described in clause (iv) of the definition of "Excess Proceeds") from the New
World Station Sales have been received by the Company, it being understood that
the Company may Incur Indebtedness under the New Bank Credit Facility in an
amount up to
Annex - 8
$75,000,000 to fund such redemption so long as the total amount of Designated
Senior Debt outstanding after giving effect to such redemption and any related
transactions does not exceed $150,000,000. Following the application of the New
World Station Sale Excess Proceeds as set forth above, any additional Excess
Proceeds from any New World Station Sale may be used to further reduce Senior
Indebtedness, to make Related Business Investment or Capital Expenditures on one
or more of the Company's or its Subsidiaries' Broadcasting Stations, to acquire
one or more Broadcasting Stations or to make a Television Station Sale Payment
as permitted by Section 4.13(d). The Company shall use the Excess Proceeds from
the Other Television Station Sales to reduce Designated Senior Debt, either
permanently or temporarily to make Related Business Investments or Capital
Expenditures on one or more of the Company's or its Subsidiaries' Broadcasting
Stations, to acquire one or more Broadcasting Stations or, to make a Television
Station Sale Payment as permitted by paragraph (d) hereof.
(c) Immediately following receipt by the Company of Excess
Proceeds from an Asset Sale, other than a Permitted Television Station Sale, the
Company may use such Excess Proceeds to temporarily reduce Designated Senior
Debt. Within 360 days following the Company's receipt of such Excess Proceeds,
such Excess Proceeds may (i) be applied to permanently reduce Designated Senior
Debt, (ii) be used to enter into a contract to make Related Business Investments
or Capital Expenditures on one or more of the Company's or its Subsidiaries'
Broadcasting Stations or to enter into a contract to acquire one or more
Broadcasting Stations, or (iii) be used to make a payment permitted by Section
4.13(e), which payment shall be counted as a permanent reduction of the amount
of Designated Senior Debt available to be Incurred pursuant to Section
4.7(c)(i). Any Excess Proceeds from an Asset Sale not applied or invested
within 360 days as provided in clauses (i), (ii) or (iii) hereof will be deemed
to constitute "Available Proceeds" and shall be applied as provided in paragraph
(f) hereof unless
Annex - 9
the Company gives notice to the Trustee within 10 days following such 360 day
period that Excess Proceeds previously used to temporarily reduce Designated
Senior Debt will be applied to permanently reduce Designated Senior Debt in
which case such Excess Proceeds shall not constitute Available Proceeds.
(d) The Company may use up to $40,000,000 of the Excess Proceeds
from the New World Station Sales, following application of such Excess Proceeds
as set forth in paragraph (b) hereof, and up to the lesser of 25% of Excess
Proceeds or $40,000,000 from any Other Television Station Sale to pay dividends
on the Company's Capital Stock or redeem, repurchase or retire shares of the
Company's Capital Stock or warrants, rights or options to purchase or acquire
shares of the Company's Capital Stock (any such dividend, redemption, repurchase
or retirement out of Excess Proceeds from any Permitted Television Station Sales
is herein referred to as a "Television Station Sale Payment"), subject to the
conditions and limitations set forth in this paragraph (d). A Television
Station Sale Payment may be made by the Company only if, and to the extent that,
each of the following conditions is satisfied as of the time of the proposed
Television Station Sale Payment: (i) the Company shall have obtained a Bank
Agent Consent if required; and (ii) no Default or Event of Default shall have
occurred and be continuing at the time of such sale or as a consequence of such
Television Station Sale Payment.
(e) Citicasters may use a portion of the Excess Proceeds from an
Asset Sale which is not a Permitted Television Sale to pay dividends on its
Capital Stock or redeem, repurchase or retire shares of its Capital Stock or
warrants, rights or options to purchase or acquire shares of its Capital Stock
(any such dividend, redemption, repurchase or retirement out of Excess Proceeds
from a single Asset Sale an "Asset Sale Payment"), subject to the conditions and
limitations set forth in this paragraph (c). An Asset Sale Payment may be made
by Citicasters only if, and to the
Annex - 10
extent that, each of the following conditions is satisfied as of the time of the
proposed Asset Sale Payment (the "Determination Time"): (i) Citicasters shall
have obtained a Bank Agent Consent; (ii) such Asset Sale Payment (as well as all
prior Asset Sale Payments, if any) shall be counted as a permanent reduction of
the amount of Designated Senior Debt available to be Incurred pursuant to
Section 4.7(c)(i); (iii) the Determination Time occurs on or prior to December
31, 1996; (iv) only two Asset Sale Payments will be permitted under this
definition; (v) no Default or Event of Default shall have occurred and be
continuing at the Determination Time or as a consequence of such Asset Sale
Payment; and (vi) after giving effect to (A) the application of any Excess
Proceeds from the applicable Asset Sale in accordance with clauses (i) and (ii)
of paragraph (c) above prior to the Determination Time, (B) any Asset Sale
Redemption of Citicasters Securities pursuant to Section 3.7(c) out of any
Excess Proceeds from the applicable Asset Sale, (C) any Asset Sale Payment out
of any Excess Proceeds from the applicable Asset Sale and (D) the payment of the
maximum amount of Television Station Sale payments which Citicasters may make
pursuant to paragraph (d) hereof regardless of whether any Permitted Television
Station Sales have in fact been made as of the Determination Time, the ratio set
forth below is equal to (but not more or less than) 4.5:1.
D-X
-------------------------
OCF + [(.065)(REP-X-Y)]
where:
D = the aggregate amount of all outstanding Indebtedness of Citicasters
and its Subsidiaries on a consolidated basis as of the Determination
Time, without giving effect to the Asset Sale Redemption (if
any) represented by "X" in the formula.
X = the principal amount of Citicasters Securities (if any) to be redeemed
in an Asset Sale Redemption
Annex - 11
pursuant to Section 3.7(c) out of Excess Proceeds from the applicable
Asset Sale in order to satisfy the conditions set forth in this
paragraph (c).
OCF = the Operating Cash Flow of Citicasters and its Subsidiaries on a
consolidated basis for the four most recent full fiscal quarters
ending immediately prior to the Determination Time, determined on a
pro forma basis after giving effect to (i) the applicable Asset Sale
and any other Asset Sales consummated during such four-quarter period
as if they had occurred at the beginning of such four-quarter period
and (ii) all acquisitions or other dispositions (whether by merger,
consolidation, purchase or sale of securities or assets or
otherwise) of any business or assets, made by Citicasters and its
Subsidiaries from the beginning of such four-quarter period through
the Determination Time as if such acquisition or disposition had
occurred at the beginning of such four-quarter period.
REP = the total amount of Excess Proceeds from the applicable Asset Sale
remaining after deducting therefrom all portions thereof applied prior
to the Determination Time pursuant to this definition, but without
giving effect to the Asset Sale Redemption (if any) represented by "X"
in the formula or to the Asset Sale Payment represented by "Y" in the
formula.
Y = the amount of the proposed Asset Sale Payment to be made at the
Determination Time pursuant to this paragraph (d).
(f) As soon as practicable, but in no event later than 10
Business Days after any date (an "Asset Sale Trigger Date") that the aggregate
amount of Available Proceeds exceeds $15,000,000, Citicasters shall, if and to
the
Annex - 12
extent permitted by the agreements governing any Senior Indebtedness of
Citicasters, subject to the provisions of Article 10, commence an offer to
purchase the maximum principal amount of Citicasters Securities that may be
purchased out of such Available 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 shall be effected in accordance with
Section 3.8 and Article 3 (to the extent applicable) and the provisions of this
definition. To the extent that any Available Proceeds remain after completion
of an Asset Sale Offer, Citicasters may use the remaining amount for any purpose
permitted by this Indenture, but not, unless otherwise permitted by Section 4.5,
to offer to repurchase or otherwise redeem, repurchase, retire or acquire for
value any Pari Passu Indebtedness or Subordinated Indebtedness. In the event
that Citicasters is prohibited under the terms of any agreement governing
outstanding Senior Indebtedness of Citicasters from repurchasing Citicasters
Securities with Available Proceeds pursuant to an Asset Sale Offer as required
by the first sentence of this paragraph (d), Citicasters shall promptly use all
Available Proceeds to permanently reduce outstanding Senior Indebtedness of
Citicasters.
(g) If, at any time, any funds are received by or for the
account of Citicasters or any of its Subsidiaries upon the sale, conversion,
collection or other liquidation of any non-cash consideration received in
respect of an Asset Sale, other than the Permitted Television Station Sales such
funds shall, when received, constitute Excess Proceeds and shall, within 360
days after the receipt of such funds be applied as provided in this definition.
"CUMULATIVE OPERATING CASH FLOW" means the Operating Cash Flow of
Citicasters and its Subsidiaries for the period beginning January 1, 1994,
through and including the end of the most recently ended fiscal quarter (taken
as one
Annex - 13
accounting period) preceding the date of any proposed Restricted Payment.
"CUMULATIVE TOTAL INTEREST EXPENSE" means the Total Interest Expense
of Citicasters and its Subsidiaries for the period beginning January 1, 1994,
through and including the end of the most recently ended fiscal quarter (taken
as one accounting period) preceding the date of any proposed Restricted Payment.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DESIGNATED SENIOR DEBT" means: (a) up to an aggregate maximum of
$150,000,000 principal amount of any combination of (i) Indebtedness outstanding
under the Bank Credit Agreements and (ii) Senior Indebtedness (without
duplication with clause (i) above), outstanding at any one time; provided,
however, that such maximum amount shall be decreased by (A) the aggregate amount
of Asset Sale Payments made by the Company, PROVIDED that a reduction described
in this clause (A) that would otherwise be caused by a particular Asset Sale
Payment will not be effective without a Bank Agent Consent with respect to such
Asset Sale Payment if the effect of such reduction would be to reduce the amount
of Designated Senior Debt available to be Incurred pursuant to Section 4.7(c)(i)
to an amount lower than the amount of Indebtedness outstanding under the Bank
Credit Agreements as of the applicable Determination Time (including unused
commitments which the Bank Lenders are unconditionally obligated to fund at the
Determination Time and which, if funded, would constitute Designated Senior
Debt) and (B) the aggregate amount of Excess Proceeds from Asset Sales applied
to permanently reduce Designated Senior Debt pursuant to paragraphs (b) and (c)
under the Citicasters Securities Asset Sale Offer; and (b) any interest,
penalties, fees, indemnifications, reimbursements, damages and other similar
charges (including, but not limited to, all fees and expens-
Annex - 14
es of counsel and all other charges, fees and expenses) payable under the Bank
Credit Agreements.
"EXCESS PROCEEDS" means with respect to any Asset Sale by any Person,
the proceeds thereof in the form of cash (including any cash received by way of
deferred payment pursuant to, or amortization of, a note or installment
receivable or otherwise, but only if, as and when received, and cash received
upon sale of securities or other Property or assets received as consideration
with respect to such Asset Sale, except to the extent that any of the foregoing
are financed or sold with recourse to Citicasters or any Subsidiary) net of
(i) brokerage commissions and other reasonable fees and expenses (including fees
and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale,
(iii) payments made to retire Senior Indebtedness where such payments are
required by the instrument governing such Indebtedness, (iv) amounts required to
be paid to any Person (other than Citicasters or any Subsidiary) owning a
beneficial interest in the Property or assets the subject of such Asset Sale and
(v) appropriate amounts to be provided by Citicasters or any Subsidiary, as the
case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by Citicasters or any Subsidiary,
as the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as reflected in an Officers' Certificate
delivered to the Trustee.
"INVESTMENT" by any Person in any other Person means any investment by
such Person in such other Person, whether by a purchase of assets, in any
transaction or series of related transactions, individually or in the aggregate,
purchase of Capital Stock, capital contribution, loan, advance (other than
reasonable loans and advances to
Annex - 15
employees for moving and travel expenses, as salary advances, and other similar
customary expenses incurred, in each case in the ordinary course of business
consistent with past practice) or similar credit extension constituting
Indebtedness of such other Person, and any Guarantee of Indebtedness of such
other Person.
"NEW WORLD STATION SALE" means Asset Sales involving the sale of four
television stations currently owned by Citicasters or its Subsidiaries located
in Phoenix, Arizona, Birmingham, Alabama, Kansas City, Missouri and
Greensboro/High Point, North Carolina pursuant to the terms of that certain
Asset Purchase Agreement dated as of May 4, 1994 between Citicasters Co.
(formerly known as Great American Television and Radio Company, Inc.) and New
World Communications Group Incorporated as the same is in effect on August 22,
1994 or as the same may be amended or modified; provided that such amendment or
modification does not decrease the consideration payable to the Company or have
materially adverse effect on the Holders.
"OTHER TELEVISION STATION SALES" means Asset Sales Involving the sale
at any time and from time to time of two television stations owned by the
Company or its Subsidiaries in Tampa, Florida and Cincinnati, Ohio.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of Citicasters
whether outstanding at the Issue Date or Incurred thereafter, which (a) ranks
pari passu with the Citicasters Securities and (b) by its terms, or by the terms
of any agreement or instrument pursuant to which such Indebtedness is Incurred,
(i) does not provide for payments of principal of such Indebtedness at the final
stated maturity thereof or by way of a sinking fund applicable thereto or by way
of any mandatory redemption, retirement or repurchase thereof by Citicasters
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of
acceleration of such Indebtedness upon an event of default
Annex - 16
thereunder), in each case prior to the final stated maturity of the Citicasters
Securities and (ii) does not permit redemption or other retirement (including
pursuant to an offer to purchase made by the issuer) of such other Indebtedness
at the option of the holder thereof prior to the final stated maturity of the
Citicasters Securities, other than a redemption or other retirement at the
option of the holder of such Indebtedness (including pursuant to an offer to
purchase made by the Issuer) which is conditioned upon the change of control of
Citicasters pursuant to provisions substantially similar to those contained in
Section 11.1 of this Indenture.
"PERMITTED INVESTMENT" by any Person means (i) any Related Business
Investment, (ii) Investments in securities or other Property not constituting
cash or Cash Equivalents and received in connection with an Asset Sale, to the
extent permitted by the definition of Citicasters Securities Asset Sale Offer,
or any other disposition of assets not constituting an Asset Sale, (iii) cash
and Cash Equivalents, (iv) Investments existing on the Issue Date,
(v) Investments by any Subsidiary in other Subsidiaries, (vi) Investments by
Citicasters in any of its Subsidiaries required by any instrument or agreement
governing Senior Indebtedness to the extent that such Investments consist of
(A) performance under Guarantees Incurred by Citicasters in compliance with this
Indenture with respect to Indebtedness of its Subsidiaries not Incurred in
violation of this Indenture or (B) Liens securing Citicasters's Obligations with
respect to any Guarantee described in the foregoing clause (A),
(vii) Investments in the form of accounts receivable arising from sales of goods
or services in the ordinary course of business, PROVIDED that for any accounts
receivable that are more than 120 days overdue, appropriate reserves or
allowances have been established in accordance with GAAP and (viii) Investments
in the form of advances or prepayments to suppliers or employees in the ordinary
course of business.
Annex - 17
"PERMITTED TELEVISION STATION SALES" means the New World Station Sales
and the Other Television Station Sale.
"PROPERTY" means all types of real, personal, tangible, intangible or
mixed property.
"RELATED BUSINESS INVESTMENTS" means (i) any Investment by a Person in
any other Person substantially all of whose revenues are derived from the
operation of one or more Broadcasting Stations or from the sale of advertising
time or the delivery, transmission or dissemination of entertainment or
information to public viewers or subscribers, so long that, as a result of such
Investment, (A) such Person becomes a Wholly-Owned Subsidiary, or (B) such
Person either (1) is merged, consolidated or amalgamated with or into
Citicasters or one of its Wholly-Owned Subsidiaries and Citicasters or such
Wholly-Owned Subsidiary is the surviving Person, or (2) transfers or conveys
substantially all of its assets to, or is liquidated into, Citicasters or one of
its Wholly-Owned Subsidiaries; (ii) the acquisition of all or substantially all
the assets of any Broadcasting Station; and (iii) any Capital Expenditure or
Investment, in each case reasonably related to the business of selling
advertising time or delivering, transmitting or disseminating entertainment or
information to public viewers or subscribers.
"RESTRICTED PAYMENT" means, with respect to any Person, without
duplication: (i) any dividend or other distribution, whether in cash or in
Property or securities, declared or paid on any shares of such Person's Capital
Stock (other than (A) in the case of Citicasters, dividends or distributions
payable solely in shares of Qualified Capital Stock of Citicasters or options,
warrants or other rights to acquire Qualified Capital Stock of Citicasters and
(B) any dividends, distributions or other payments made to Citicasters or a
Wholly-Owned Subsidiary by a Subsidiary), or the making by such Person or any of
its subsidiaries of any other distribution in respect of, such Person's Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock (other than exchangeable or convertible Indebtedness
of such person); (ii) the redemption, repurchase, retirement or other
acquisition for value by such Person or any of its subsidiaries, directly or
indirectly, of such person's Capital
Annex - 18
Stock (and, in the case of a Subsidiary, Capital Stock of Citicasters) other
than Capital Stock owned by Citicasters or a Wholly-Owned Subsidiary or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock (other than exchangeable or convertible Indebtedness of such
Person), and other than, in the case of Citicasters, through the issuance in
exchange therefor solely of Qualified Capital Stock of Citicasters; (iii) any
payment to purchase, redeem, defease or otherwise acquire or retire for value
any Pari Passu Indebtedness or Subordinated Indebtedness (other than with the
proceeds of Refinancing Indebtedness permitted under this Indenture), except in
accordance with the mandatory redemption or repayment provisions set forth in
the original documentation governing such Indebtedness, and (iv) any Investment
other than Permitted Investments.
"SENIOR INDEBTEDNESS" means and includes all principal of, premium and
interest (including Post-Petition Interest) on and other Obligations with
respect to (i) Indebtedness outstanding under the Bank Credit Agreements and
(ii) any other Indebtedness of Citicasters (other than as otherwise provided in
this definition), whether outstanding on the Issue Date or thereafter Incurred,
other than the Citicasters Securities; PROVIDED, HOWEVER, that the following
shall not constitute Senior Indebtedness: (A) any Indebtedness which by the
terms of the instrument creating or evidencing the same is PARI PASSU,
subordinated or junior in right of payment to the Citicasters Securities in any
respect, (B) that portion of any Indebtedness Incurred in violation of this
Indenture, (C) any Preferred Stock, or (D) any Indebtedness of Citicasters
(other than Indebtedness outstanding under the Bank Credit Agreements which
qualifies
Annex - 19
as Designated Senior Debt) which is subordinated to or junior in right of
payment in any respect to any other Indebtedness of Citicasters. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
the principal of, premium, if any, and interest (including Post-Petition
Interest) and all other Obligations of every nature of Citicasters and its
Subsidiaries from time to time in respect of Indebtedness outstanding under the
Bank Credit Agreements which qualifies as Designated Senior Debt; PROVIDED,
HOWEVER, that any Indebtedness under any refinancing, refunding or replacement
of the Indebtedness outstanding under the Bank Credit Agreements shall not
constitute Senior Indebtedness to the extent that the Indebtedness thereunder is
by it express terms subordinate to any other Indebtedness of Citicasters (other
than Indebtedness outstanding under the Bank Credit Agreements).
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (1)
Indebtedness evidenced by Citicasters Securities, (2) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Title 11,
United States Code, is without recourse to Citicasters, (3) any liability for
foreign, federal, state, local or other taxes owed or owing by Citicasters, (4)
Indebtedness of Citicasters to the extent such liability constitutes
Indebtedness to a Subsidiary or any other Affiliate of Citicasters or any of
such Affiliate's subsidiaries, (5) Indebtedness for the purchase of goods or
materials in the ordinary course of business or (6) Indebtedness owed by
Citicasters for compensation to employees or for services.
"SIGNIFICANT SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person that would be (i) a "significant subsidiary" as
defined in (a) or (b) of the definition of that term in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the Issue Date or (ii) material to the business, condition
(financial or other), business, operations or prospects of Citicasters and its
Subsidiaries taken as a whole.
Annex - 20
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Citicasters which is
subordinated or junior in right of payment to the Citicasters Securities.
"SUBSIDIARY" means any corporation, association, partnership, joint
venture or other business entity of which Citicasters and/or any Subsidiary of
Citicasters, directly or indirectly, either (a) in respect of a corporation,
owns or controls more than 50% of the outstanding Capital Stock having ordinary
voting power to elect a majority of the board of directors or similar managing
body, irrespective of whether or not a class or classes shall or might have
voting power by reason of the happening of any contingency, or (b) in respect of
an association, partnership, joint venture or other business entity, exercises
sufficient control over and/or has a sufficiently large interest in, such
association, partnership, joint venture or other business entity that the
operations thereof are, in accordance with GAAP, consolidated with those of
Citicasters or any Subsidiary.
"TOTAL INTEREST EXPENSE" of a Person means (i) the total amount of
interest expense (including amortization of original issue discount and noncash
interest payments or accruals and the interest component of any Capital Lease
Obligations but, excluding any intercompany interest owed by any Subsidiary to
any other Subsidiary of such Person), (ii) all fees, commissions, discounts and
other charges of Citicasters and its Subsidiaries with respect to letters of
credit and bankers' acceptances, determined on a consolidated basis in
accordance with GAAP and (iii) the product of (a) the total amount of dividends
declared on Disqualified Capital Stock other than common stock (whether accrued
or paid) of such Person and its consolidated Subsidiaries, times (b) a fraction,
the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
Annex - 21
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary 100% of the equity
interests in which (however measured) are owned by Citicasters or a Wholly-Owned
Subsidiary of Citicasters or Citicasters and one or more Wholly-Owned
Subsidiaries of Citicasters taken together, except in any case for the minimum
equity interest required to be held by directors, if any, to satisfy the
requirements of any applicable statute requiring that directors own qualifying
shares.
Annex - 22
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 1. NOTICES TO TRUSTEE.
If Citicasters elects to redeem Citicasters Securities pursuant to
Section 3.7 it shall furnish to the Trustee, at least 10 but not more than 15
days before notice of any redemption is to be mailed to Holders (or such shorter
time as may be satisfactory to the Trustee), an Officers' Certificate stating
that Citicasters has elected to redeem Citicasters Securities pursuant to
Section 3.7, the date notice of redemption is to be mailed to Holders, the
Redemption Date, the aggregate principal amount of Citicasters Securities to be
redeemed, the Redemption Price for such Citicasters Securities, the amount of
accrued and unpaid interest on such Citicasters Securities as of the Redemption
Date and the manner in which Citicasters Securities are to be selected for
redemption if less than all outstanding Citicasters Securities are to be
redeemed. If the Trustee is not the Registrar, Citicasters 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 Citicasters
Securities held by each Holder.
If Citicasters is required to offer to purchase Citicasters Securities
pursuant to Section 4.12 or 4.13, it shall furnish to the Trustee, at least 5
Business Days before notice of the Offer is to be mailed to Holders, an
Officers' Certificate setting forth that the Offer is being made pursuant to
Section 4.12 or 4.13, as the case may be, the Purchase Date, the maximum
principal amount of Citicasters Securities Citicasters is offering to purchase
pursuant to the Offer, the purchase price for such Citicasters Securities, and
the amount of accrued and unpaid
Annex - 23
interest on such Citicasters Securities as of the Purchase Date.
Citicasters will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
SECTION 2. SELECTION OF CITICASTERS SECURITIES TO BE REDEEMED OR
PURCHASED.
If less than all outstanding Citicasters Securities are to be redeemed
or if less than all Citicasters Securities tendered pursuant to an Offer are to
be accepted for payment, Citicasters shall select the outstanding Citicasters
Securities to be redeemed or accepted for payment in compliance with the
requirements of the principal national securities exchange, if any, on which the
Citicasters Securities are listed or, if the Citicasters Securities are not
listed on a securities exchange, on a pro rata basis, by lot or by any other
method that the Trustee deems fair and appropriate; PROVIDED, HOWEVER, that if
any Additional Citicasters Securities are outstanding, such selection shall be
effected in such a manner as to ensure that the ratio of the outstanding
principal amount of the Initial Citicasters Securities and the ratio of the
outstanding principal amount of Additional Citicasters Securities, respectively,
to the sum of the outstanding principal amount of the Initial Citicasters
Securities and Additional Citicasters Securities prior to such selection is
equal to such ratios after such selection. If Citicasters elects to mail notice
of a redemption to Holders, the Trustee shall, at least 5 days prior to the date
notice of redemption is to be mailed, (i) select the Citicasters Securities to
be redeemed from Citicasters Securities outstanding not previously called for
redemption, and (ii) promptly notify Citicasters of the names of each Holder of
Citicasters Securities selected for redemption, the principal amount of
Citicasters Securities held by each such Holder and the principal amount of such
Holder's Citicasters Securities
Annex - 24
that are to be redeemed. If less than all Citicasters Securities 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 Citicasters Securities to be
accepted for payment; PROVIDED, HOWEVER, that if any Additional Citicasters
Securities are outstanding, such selection shall be effected in such a manner as
to ensure that the ratio of the outstanding principal amount of the Initial
Citicasters Securities and the ratio of the outstanding principal amount of
Additional Citicasters Securities, respectively, to the sum of the outstanding
principal amount of the Initial Citicasters Securities and Additional
Citicasters Securities prior to such selection is equal to such ratios after
such selection. The Trustee shall select for redemption or purchase Citicasters
Securities or portions of Citicasters Securities in principal amounts of $1,000
or integral multiples of $1,000; except that if all of the Citicasters
Securities of a Holder are selected for redemption or purchase, the aggregate
principal amount of the Citicasters Securities 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 Citicasters
Securities called for redemption or tendered pursuant to an Offer also apply to
portions of Citicasters Securities called for redemption or tendered pursuant to
an Offer.
SECTION 3. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before any
Redemption Date, Citicasters shall mail by first class mail to each such
Holder's registered address a notice of redemption to each Holder of Citicasters
Securities or portions thereof that are to be redeemed. With respect to any
redemption of Citicasters Securities, the notice shall identify the Citicasters
Securities or portions thereof to be redeemed and shall state: (1) the
Redemption Date; (2) the Redemption Price for the Citicasters Securities and the
amount of unpaid and accrued interest on such
Annex - 25
Citicasters Securities as of the date of redemption; (3) if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the Redemption Date, upon surrender of such Note, a new
Note or Citicasters Securities in principal amount equal to the unredeemed
portion will be issued; (4) the name and address of the Paying Agent; (5) that
Citicasters Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price for, and any accrued and unpaid interest
on, such Citicasters Securities; (6) that, unless Citicasters defaults in making
such redemption payment, interest on Citicasters Securities called for
redemption ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders of such Citicasters Securities is to receive
payment of the Redemption Price upon surrender to the Paying Agent of the
Citicasters Securities redeemed; and (7) if fewer than all the Citicasters
Securities are to be redeemed, the identification of the particular Citicasters
Securities (or portion thereof) to be redeemed, as well as the aggregate
principal amount of Citicasters Securities to be redeemed and the aggregate
principal amount of Citicasters Securities to be outstanding after such partial
redemption.
(b) At Citicasters's request, the Trustee shall (at
Citicasters's expense) give the notice of any redemption to Holders; PROVIDED,
HOWEVER, that Citicasters shall deliver to the Trustee, 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 Citicasters Securities to be
redeemed and the amount of accrued and unpaid interest thereon as of the
redemption date. If the Trustee is not the Registrar, Citicasters shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the
Annex - 26
Trustee may rely) setting forth the name of, the address of, and the aggregate
principal amount of Citicasters Securities 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 3.3(b) if such later date is
acceptable to the Trustee.
SECTION 4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed to the Holders, Citicasters
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price. Upon surrender to the Trustee or the Paying Agent, the
Citicasters Securities called for redemption shall be paid at the Redemption
Price.
SECTION 5. DEPOSIT OF REDEMPTION PRICE.
(a) On or prior to any Redemption Date, Citicasters shall
deposit with the Paying Agent money sufficient to pay the Redemption Price of,
and accrued interest on, all Citicasters Securities to be redeemed on that date.
After any Redemption Date, the Trustee or the Paying Agent shall promptly return
to Citicasters any money that Citicasters 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 Citicasters Securities to be redeemed.
(b) If Citicasters complies with the preceding paragraph, unless
Citicasters defaults in the payment of such Redemption Price interest on the
Citicasters Securities to be redeemed will cease to accrue on such Citicasters
Securities on the applicable Redemption Date, whether or not such Citicasters
Securities 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
Annex - 27
on such record date. If any Note called for redemption shall not be so paid
upon surrender for redemption because of the failure of Citicasters 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
Citicasters Securities and Section 4.1.
SECTION 6. CITICASTERS SECURITIES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, Citicasters shall issue
and the Trustee shall authenticate for the Holder at Citicasters's expense a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 7. OPTIONAL REDEMPTION.
(a) Except as otherwise provided in this Section 3.7 or in
paragraph (b) of the Citicasters Securities Asset Sale Offer with respect to the
New World Station Sale, the Citicasters Securities may not be redeemed at the
option of Citicasters prior to February 15, 1999. Thereafter, the Citicasters
Securities will be subject to redemption at the option of Citicasters, in whole
or in part, at the Redemption Prices (expressed as percentages of the principal
amount of the Citicasters Securities) set forth below, plus any accrued and
unpaid interest to the Redemption Date, if redeemed during the twelve-month
period beginning on February 15 of the years indicated below:
Year Percentage
---- ----------
1999.........................104.875%
2000.........................103.250%
2001..........................101.625%
2002 and thereafter...........100.000%
Annex - 28
Notwithstanding the foregoing, up to 25% in aggregate principal amount
of Citicasters Securities originally issued under this Indenture will be
redeemable from time to time prior to December 31, 1996, at the option of
Citicasters, from the Net Proceeds of one or more Public Offerings of
Citicasters at a Redemption Price equal to 108.75% of the principal amount
thereof, together with accrued and unpaid interest to the date of redemption;
provided, however, that any such redemption shall be permitted only if and to
the extent that, after giving effect thereto and to any simultaneous redemptions
pursuant to Section 3.7(b) or Section 3.7(c), at least $75,000,000 in principal
amount of Initial Citicasters Securities will remain outstanding.
(b) Prior to February 15, 1999, the Citicasters Securities will
be subject to redemption (a "Change of Control Redemption") at the option of
Citicasters, in whole or in part, at any tune within 180 days after the later of
(i) a Change of Control Trigger Date, and (ii) the completion of an Offer made
as a result of a Change of Control, at a redemption price equal to the sum of
(A) the principal amount thereof, plus (B) accrued and unpaid interest to the
redemption date, plus (C) the Applicable Premium; PROVIDED, HOWEVER, that a
Change of Control Redemption shall be permitted only if and to the extent that,
after giving effect thereto and to any simultaneous redemptions pursuant to the
last sentence of Section 3.7(a) or Section 3.7(c), at least $75,000,000 in
principal amount of Citicasters Securities will remain outstanding, unless such
Change of Control Redemption is for all outstanding Citicasters Securities.
(c) Prior to December 31, 1996 the Citicasters Securities will
be subject to redemption (an "Asset Sale Redemption") at the option of
Citicasters, in whole or in part, following an Asset Sale, other than a
Permitted Television Station Sale, in connection with an
Annex - 29
Asset Sale Payment; provided that an Asset Sale Redemption may be made by
Citicasters only if, and to the extent that, each of the following conditions is
satisfied; (i) only two Asset Sale Redemptions will be permitted under this
Indenture; (ii) the maximum aggregate principal amount of Citicasters Securities
to be redeemed pursuant to an Asset Sale Redemption will be limited to that
amount which is necessary to make the ratio set forth in paragraph (c) under the
definition of Citicasters Securities Asset Sale Offer, given the amount of the
proposed Asset Sale Payment, equal to (but not more or less than) 4.5:1; and
(iii) after giving effect to the proposed Asset Sale Redemption and to any
simultaneous redemptions pursuant to the last sentence of Section 3.7(a) or
Section 3.7(b), at least $75,000,000 in principal amount of Initial Citicasters
Securities will remain outstanding. In the event of an Asset Sale Redemption,
the Citicasters Securities will be redeemable at the Redemption Prices
(expressed as percentages of the principal amount of the Citicasters Securities)
set forth below, plus any accrued and unpaid interest to the date of redemption,
if redeemed during the periods indicated below.
Period Percentage
------ ----------
February 15, 1994 to July 31, 1994 102.00%
August 1, 1994 to February 14, 1995 103.00%
February 15, 1995 to December 31, 1996 108.75%
SECTION 8. MANDATORY OFFERS.
(a) Within 60 days after any Change of Control Trigger Date, or
within 10 Business Days after any Asset Sale Trigger Date, Citicasters shall
mail a notice to each Holder (with a copy to the Trustee) containing all
instructions and materials necessary to enable such Holders to tender
Citicasters Securities pursuant to the Offer and stating: (1) that an Offer is
being made pursuant to a Change of Control Offer or pursuant to the definition
of Citicasters Securities Asset Sale Offer, as the case may be,
Annex - 30
the length of time the Offer shall remain open, and the maximum aggregate
principal amount of Citicasters Securities that Citicasters is required to
purchase pursuant to such Offer (2) the purchase price for the Citicasters
Securities, the amount of accrued and unpaid interest on such Citicasters
Securities as of the purchase date, and the purchase date (which shall be no
earlier than 30 days nor later than 40 days from the date such notice is mailed
(the "Purchase Date"); (3) that any Note not tendered will continue to accrue
interest if interest is then accruing; (4) that, unless Citicasters fails to
deposit with the Paying Agent on the Purchase Date an amount sufficient to
purchase all Citicasters Securities accepted for payment, interest shall cease
to accrue on such Citicasters Securities after the Purchase Date; (5) 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 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; (6) that Holders will
be entitled to withdraw their election to tender Citicasters Securities if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Citicasters Securities delivered for purchase, and a statement that
such Holder is withdrawing his election to have such Note purchased; (7) that
Holders whose Citicasters Securities are accepted for payment in part will be
issued new Citicasters Securities equal in principal amount to the unpurchased
portion of Citicasters Securities surrendered, PROVIDED that only Citicasters
Securities in a principal amount of $1,000 or integral multiples thereof will be
accepted for payment in part and (8) if the Offer is made with respect to a
Change of Control, the circumstances and relevant facts regarding such Change of
Control.
Annex - 31
(b) Notwithstanding anything in this Section 3.8 to the
contrary, Citicasters shall not be required to commence an Offer as a result of
a Change of Control if, within thirty (30) days of the Change of Control Trigger
Date, Citicasters notifies the Holders that all outstanding Citicasters
Securities will be redeemed pursuant to a Change of Control Redemption.
(c) Subject to the provisions of Article 10, on the Purchase
Date for any Offer, Citicasters will (i) in the case of an Offer resulting from
a Change of Control, accept for payment all Citicasters Securities or portions
thereof tendered pursuant to such Offer and, in the case of an Offer resulting
from one or more Asset Sales, accept for payment the maximum principal amount of
Citicasters Securities or portions thereof tendered pursuant to such Offer that
can be purchased out of Excess Proceeds from such Asset Sales, (ii) deposit with
the Paying Agent the aggregate purchase price of all Citicasters Securities or
portions thereof accepted for payment and any accrued and unpaid interest on
such Citicasters Securities as of the Purchase Date, and (iii) deliver, or cause
to be delivered, to the Trustee all Citicasters Securities tendered pursuant to
the Offer, together with an Officers' Certificate setting forth the name of each
Holder of the tendered Citicasters Securities and the principal amount of the
Citicasters Securities or portions thereof tendered by each such Holder. For
purposes of this Section 3.8, the Trustee shall act as the Paying Agent.
(d) With respect to any Offer, (i) if less than all of the
Citicasters Securities tendered pursuant to an Offer are to be accepted for
payment by Citicasters for any reason, Citicasters and the Trustee shall select
on or prior to the Purchase Date the Citicasters Securities or portions thereof
to be accepted for payment pursuant to Section 3.2; PROVIDED, HOWEVER, that if
any Additional Citicasters Securities are outstanding, such selection shall
Annex - 32
be effected in such a manner as to ensure that the ratio of the outstanding
principal amount of the Initial Citicasters Securities and the ratio of the
outstanding principal amount of Additional Citicasters Securities, respectively,
to the sum of the outstanding principal amount of the Initial Citicasters
Securities and Additional Citicasters Securities prior to such selection is
equal to such ratios after such selection, and (ii) if Citicasters deposits with
the Paying Agent on or prior to the Purchase Date an amount sufficient to
purchase all Citicasters Securities accepted for payment, interest shall cease
to accrue on such Citicasters Securities on the Purchase Date; PROVIDED,
HOWEVER, that if Citicasters fails to deposit an amount sufficient to purchase
all Citicasters Securities -accepted for payment, the deposited funds shall be
used to purchase on a pro rata basis all Citicasters Securities accepted for
payment and interest shall continue to accrue on all Citicasters Securities not
purchased.
(e) Subject to the provisions of Article 10, promptly after the
Purchase Date with respect to an Offer, (i) the Paying Agent shall mail to each
Holder of Citicasters Securities or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Citicasters Securities, (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.
(f) Citicasters will (i) publicly announce the results of the
Offer on or as soon as practicable after the Purchase Date, and (ii) comply with
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
to the extent such laws and regulations are applicable to any Offer.
Annex - 33
ARTICLE IV
SELECTED COVENANTS
* * *
SECTION 5. LIMITATION ON RESTRICTED PAYMENTS.
(a) Citicasters shall not, and shall not permit any Subsidiary
to, directly or indirectly, make any Restricted Payment, except (1) dividends,
payments or other distributions with respect of any Capital Stock by any
Subsidiary to Citicasters or any Wholly owned Subsidiary of Citicasters, (2)
repurchases, redemptions, retirements or acquisitions of Capital Stock by a
Wholly owned Subsidiary of Citicasters from Citicasters or another Wholly owned
Subsidiary of Citicasters, (3) payments, prepayments, repurchases, redemptions
and acquisitions permitted under Section 4.7 with respect to Indebtedness not
incurred in violation of Section, 4.7, and (4) Restricted Payments by
Citicasters if (i) at the time of and after giving effect to the proposed
Restricted Payment no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof, (ii) at the time of and
immediately after giving effect to the proposed Restricted Payment, Citicasters
could Incur at least $1.00 of additional Indebtedness pursuant to Section 4.7(b)
and (iii) at the time of and immediately after giving effect to the proposed
Restricted Payment (the value of any such payment if other than cash, as
determined by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution, PROVIDED that in the event such value
exceeds $3 million such determination shall be supported by a fairness opinion
of an Independent Financial Advisor) the aggregate amount of all Restricted
Payments (excluding all payments, investments, redemptions, repurchases,
retirements and other acquisitions described in clause (ii) of Section 4.5(b))
declared or made after the Issue Date does not exceed an
Annex - 34
amount equal to the sum of (A) Cumulative Operating Cash Flow of Citicasters and
its Subsidiaries less 1.4 times Cumulative Total Interest Expense of Citicasters
and its Subsidiaries, plus (B) an amount equal to 100% of the aggregate
Qualified Capital Stock Proceeds received by Citicasters from the issuance and
sale (other than to a Subsidiary of Citicasters) of Qualified Capital Stock to
the extent that such proceeds are not used to redeem, repurchase, return or
otherwise acquire Capital Stock or any Indebtedness of Citicasters or any
Subsidiary pursuant to clause (ii) of Section 4.5(b) and (C) $5,000,000.
(b) Notwithstanding Section 4.5(a), the following Restricted
Payments may be made: (i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture; (ii) the redemption,
repurchase, retirement or other acquisition for value of any Capital Stock or
any Indebtedness of Citicasters or any Subsidiary in exchange for, or out of the
Qualified Capital Stock Proceeds of, the substantially concurrent sale (other
than to Citicasters or a Subsidiary of Citicasters) of Qualified Capital Stock
of Citicasters; and (iii) the redemption of Citicasters Securities under the
circumstances provided in Article 3 and pursuant to a Change of Control Offer
and a Citicaster Securities Asset Sale Offer.
* * *
SECTION 7. LIMITATION ON INDEBTEDNESS.
(a) Except as set forth in this Section 4.7, Citicasters shall
not, and shall not permit any Subsidiary, after the Issue Date, directly or
indirectly, to Incur any Indebtedness (including Acquired Indebtedness and under
any Additional Note). For purposes of this Indenture, Indebtedness of any
Acquired Person that is not a Subsidiary, which Indebtedness is outstanding at
the time such Person is
Annex - 35
acquired by Citicasters or a Subsidiary or becomes, or is merged into or
consolidated with, a Subsidiary, shall be deemed to have been Incurred by
Citicasters at the time such Acquired Person becomes, or is merged into or
consolidated with, a Subsidiary.
(b) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(c), Citicasters (subject
to the limitations set forth in Section 4.15) or any Subsidiary may Incur
Indebtedness if (i) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the Incurrence of such
Indebtedness and (ii) on the date of the Incurrence of such Indebtedness, the
Debt to Operating Cash Flow Ratio of Citicasters and its Subsidiaries at the
time of such Incurrence, after giving pro forma effect thereto, is 7.0:1 or
less.
(c) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(b), Citicasters and its
Subsidiaries may Incur any of the following Indebtedness:
(i) Designated Senior Debt;
(ii) Indebtedness evidenced by the Initial Citicasters
Securities;
(iii) Indebtedness to any Wholly owned Subsidiary of
Citicasters or Indebtedness of any Subsidiary to Citicasters (provided that
such Indebtedness is at all times held by Citicasters or a Wholly owned
Subsidiary of Citicasters); PROVIDED, HOWEVER, that for purposes of this
Section 4.7, upon either (A) the transfer or other disposition by any such
Wholly owned Subsidiary of any Indebtedness so permitted to a Person other
than Citicasters or another Wholly owned Subsidiary of Citicasters or (B)
the issuance, sale, lease, transfer or other disposition of shares of
Capital
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Stock (including by consolidation or merger) of such Wholly owned
Subsidiary to a Person other than Citicasters or another such Wholly owned
Subsidiary, the provisions of this clause (iii) shall no longer be
applicable to such Indebtedness and such Indebtedness shall be deemed to
have been Incurred by Citicasters at the time of such transfer or other
disposition;
(iv) Refinancing Indebtedness with respect to Indebtedness
that was Incurred prior to the Issue Date or, if incurred after the Issue
Date, was Incurred in compliance with the provisions of this Indenture;
PROVIDED, HOWEVER, that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the principal amount (or accreted value, in
the case of Indebtedness issued at a discount) of the Indebtedness so
extended, refinanced, renewed, replaced, substituted, defeased or refunded
(plus the amount of fees, costs and expenses incurred and the amount of any
premium, penalties, breakage costs and other similar amounts required to be
paid in connection with such refinancing pursuant to the terms of the
instrument governing the Indebtedness so extended, refinanced, renewed,
replaced, substituted, defeased or refunded or the amount of any premium
reasonably determined by Citicasters as necessary to accomplish a
refinancing by means of a tender offer or privately negotiated repurchase,
which determination shall be supported by a fairness opinion from an
Independent Financial Advisor, plus the fees, costs and expenses of such
tender offer or repurchase); and (B) the Refinancing Indebtedness shall (1)
have a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, substituted, defeased or refunded; (2) not
have a final scheduled maturity earlier than the final scheduled maturity
of the Indebtedness being extended, refinanced, replaced, renewed,
substituted, defeased or refunded; (3) not permit re-
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demption at the option of the holder earlier than the earliest date of
redemption at the option of the holder of the Indebtedness being extended,
refinanced, replaced, renewed, substituted, defeased or refunded; and (4)
rank no more senior or be at least as subordinated, as the case may be, in
right of payment to the Citicasters Securities as the Indebtedness being
extended, refinanced, replaced, renewed, substituted, defeased or refunded;
PROVIDED, FURTHER, that the limitations contained in this clause (iv) shall
not preclude Citicasters or any of its Subsidiaries from Incurring
additional Indebtedness permitted to be Incurred at the time under Section
4.7(b) or any other clause of this Section 4.7(c), notwithstanding that
such additional Indebtedness would fall within the definition of
"Refinancing Indebtedness";
(v) With respect to Citicasters, Guarantees of obligations
under existing Investments in The Theme Park Partnership, an Australian
partnership, up to an aggregate amount not exceeding 4,033,125 Dollars
(Australian);
(vi) Indebtedness with respect to Interest Rate or Currency
Protection Agreements; and
(vii) Indebtedness not otherwise permitted to be Incurred
pursuant to clauses (i) through (vi) above which, together with any other
outstanding Indebtedness Incurred pursuant to this clause (vii), has an
aggregate principal amount not in excess of $25,000,000 at any one time
outstanding (plus Obligations for related payments for early termination,
interest, fees, expenses and indemnities and other similar amounts payable
thereunder or in connection therewith).
* * *
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 1. EVENTS OF DEFAULT
(a) Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on any Citicasters
Securities (whether or not prohibited by the subordination provisions of this
Indenture); (ii) default in the payment when due, whether at maturity,upon
acceleration, redemption or otherwise, of principal on any Citicasters
Securities (whether or not prohibited by the subordination provisions of this
Indenture); (iii) failure by Citicasters for 30 days after receipt of notice
from the Trustee or Holders of at least 25% of the principal amount of the
outstanding Citicasters Securities to comply with any other provisions of this
Indenture or any Citicasters Securities; (iv) default under any mortgage,
indenture or instrument under which there may be Incurred or by which there may
be secured or evidenced any Indebtedness for money borrowed by Citicasters or
any of its Subsidiaries (or the payment of which is guaranteed by Citicasters or
any of its Subsidiaries) whether such Indebtedness now exists, or is created
after the Issue Date if (A) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a default in the
payment of such Indebtedness at final maturity of such Indebtedness, and (B) the
principal amount of any such Indebtedness that has been accelerated or not paid
at maturity, when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity, exceeds
$10,000,000; (v) failure by Citicasters or any of its Significant Subsidiaries
to pay final judgments, the uninsured portion of which exceeds $10,000,000,
which judgments are not paid, discharged, bonded or stayed for a period of 60
days after the date of entry thereof, (vi) if under any Bankruptcy Law,
(A) Citicasters or any Significant Subsidiary commences a voluntary case,
consents to the entry of an order for relief
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against it in an involuntary case, consents to the appointment of a Custodian of
it or for all or substantially all of its property, or makes a general
assignment for the benefit of its creditors, or (B) a court of competent
jurisdiction enters an order or decree, and such order or decree remains
unstated and in effect for 60 days, that is for relief against Citicasters or
any Significant Subsidiary in an involuntary case, appoints a Custodian of
Citicasters or any Significant Subsidiary, or orders the liquidation of
Citicasters or any Significant Subsidiary; and (vii) any of the Applicable
Documents shall cease, for any reason, to be in full force and effect in any
material respect, except as a result of an amendment, waiver or termination
thereof as contemplated or permitted hereby or Citicasters shall so assert in
writing.
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