EXHIBIT 4.1
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JACOR COMMUNICATIONS COMPANY,
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
PARENT GUARANTOR
AND
UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY
GUARANTORS NAMED HEREIN
AND
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TRUSTEE
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INDENTURE
Dated as of ___________, 199_
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA . . . . . . . . . . . . . . 24
SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . . . . . . 24
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . 25
SECTION 2.1. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.2. Form of Trustee's Certificate of Authentication. . . . . . . . 26
SECTION 2.3. Securities in Global Form. . . . . . . . . . . . . . . . . . . 26
SECTION 2.4. Form of Notation Relating to Guarantees. . . . . . . . . . . . 27
ARTICLE III
THE SECURITIES . . . . . . . . . . . . . 27
SECTION 3.1. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . 27
SECTION 3.2. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.3. Execution and Authentication . . . . . . . . . . . . . . . . . 32
SECTION 3.4. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . 32
SECTION 3.5. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . 33
SECTION 3.6. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.7. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.8. Replacement Securities . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.9. Outstanding Securities . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.10. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.11. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.12. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.13. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.14. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE IV
REDEMPTION . . . . . . . . . . . . . . 39
SECTION 4.1. Applicability of Article . . . . . . . . . . . . . . . . . . . 39
SECTION 4.2. Notices to Trustee and Paying Agent. . . . . . . . . . . . . . 39
SECTION 4.3. Selection of Securities to Be Redeemed . . . . . . . . . . . . 40
SECTION 4.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.5. Effect of Notice of Redemption . . . . . . . . . . . . . . . . 41
SECTION 4.6. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 42
SECTION 4.7. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 42
ARTICLE V
COVENANTS. . . . . . . . . . . . . . . 42
SECTION 5.1. Payment of Securities. . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 43
SECTION 5.3. Limitation on Restricted Payments. . . . . . . . . . . . . . . 43
SECTION 5.4. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.5. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . 44
SECTION 5.6. Maintenance of Properties and Insurance. . . . . . . . . . . . 45
SECTION 5.7. Compliance Certificate; Notice of Default. . . . . . . . . . . 45
SECTION 5.8. Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.9. Limitation on Status as Investment Company . . . . . . . . . . 46
SECTION 5.10. Limitation on Transactions with Affiliates . . . . . . . . . . 46
SECTION 5.11. Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock . . . . . . . . . . . . . . . . . 47
SECTION 5.12. Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . 47
SECTION 5.13. Limitations on Layering Indebtedness; Liens. . . . . . . . . . 48
SECTION 5.14. Limitation on Sale of Assets and Subsidiary Stock. . . . . . . 48
SECTION 5.15. Limitation on Asset Swaps. . . . . . . . . . . . . . . . . . . 53
SECTION 5.16. Limitation on Lines of Business. . . . . . . . . . . . . . . . 53
SECTION 5.17. Restriction on Sale and Issuance of Subsidiary Stock . . . . . 53
SECTION 5.18. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . 54
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ARTICLE VI
SUCCESSOR CORPORATION. . . . . . . . . . . . 54
SECTION 6.1. Limitation on Merger, Sale or Consolidation . . . . . . . . . 54
SECTION 6.2. Successor Corporation Substituted . . . . . . . . . . . . . . 55
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . 55
SECTION 7.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2. Acceleration of Maturity Date; Rescission and Annulment . . . 56
SECTION 7.3. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 58
SECTION 7.5. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.6. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.7. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.9. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 61
SECTION 7.10. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . 61
SECTION 7.11. Control by Holders . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.12. Waiver of Past Default . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.14. Restoration of Rights and Remedies . . . . . . . . . . . . . . 63
ARTICLE VIII
TRUSTEE . . . . . . . . . . . . . . . 63
SECTION 8.1. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . 65
SECTION 8.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.6. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . 66
SECTION 8.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 66
SECTION 8.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 67
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SECTION 8.9. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . 68
SECTION 8.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . 68
SECTION 8.11. Preferential Collection of Claims Against the Company . . . . 69
ARTICLE IX
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . 69
SECTION 9.1. Discharge; Option to Effect Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.2. Legal Defeasance and Discharge. . . . . . . . . . . . . . . . 69
SECTION 9.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.4. Conditions to Legal or Covenant Defeasance. . . . . . . . . . 70
SECTION 9.5. Deposited Cash and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions . . . . . . 72
SECTION 9.6. Repayment to the Company. . . . . . . . . . . . . . . . . . . 72
SECTION 9.7. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . 73
SECTION 10.1. Supplemental Indentures Without Consent of Holders. . . . . . 73
SECTION 10.2. Amendments, Supplemental Indentures and Waivers
with Consent of Holders. . . . . . . . . . . . . . . . . . . 74
SECTION 10.3. Compliance with TIA . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.4. Revocation and Effect of Consents . . . . . . . . . . . . . . 76
SECTION 10.5. Notation on or Exchange of Securities . . . . . . . . . . . . 77
SECTION 10.6. Trustee to Sign Amendments, Etc.. . . . . . . . . . . . . . . 77
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE . . . . . . . . . . 77
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon
a Change of Control. . . . . . . . . . . . . . . . . . . . . 77
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ARTICLE XII
GUARANTEE. . . . . . . . . . . . . . . 80
SECTION 12.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 12.2. Execution and Delivery of Guarantee . . . . . . . . . . . . . 82
SECTION 12.3. Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.4. Guarantor May Consolidate, Etc., on Certain Terms . . . . . . 82
SECTION 12.5. Release of Guarantors . . . . . . . . . . . . . . . . . . . . 83
SECTION 12.6. Certain Bankruptcy Events . . . . . . . . . . . . . . . . . . 84
ARTICLE XIII
CONVERSION . . . . . . . . . . . . . . 84
SECTION 13.1. Applicability; Conversion Privilege . . . . . . . . . . . . . 84
SECTION 13.2. Conversion Procedure; Conversion Price; No Fractional Shares. 85
SECTION 13.3. Adjustment of Conversion Price. . . . . . . . . . . . . . . . 86
SECTION 13.4. Consolidation or Merger of the Parent Guarantor . . . . . . . 89
SECTION 13.5. Notice of Adjustment. . . . . . . . . . . . . . . . . . . . . 90
SECTION 13.6. Notice in Certain Events. . . . . . . . . . . . . . . . . . . 90
SECTION 13.7. Parent Guarantor to Reserve Stock; Registration; Listing. . . 91
SECTION 13.8. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . 92
SECTION 13.9. Conversion after Record Date. . . . . . . . . . . . . . . . . 92
SECTION 13.10. Company and Parent Guarantor Determination Final. . . . . . . 92
SECTION 13.11. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . 92
ARTICLE XIV
MISCELLANEOUS. . . . . . . . . . . . . . 93
SECTION 14.1. TIA Controls. . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 14.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 14.3. Communications by Holders with Other Holders. . . . . . . . . 94
SECTION 14.4. Certificate and Opinion as to Conditions Precedent. . . . . . 94
SECTION 14.5. Statements Required in Certificate or Opinion . . . . . . . . 94
SECTION 14.6. Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . 95
SECTION 14.7. Non-Business Days . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 14.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 14.9. No Adverse Interpretation of Other Agreements . . . . . . . . 96
SECTION 14.10. No Recourse against Others. . . . . . . . . . . . . . . . . . 96
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SECTION 14.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 14.12. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . 96
SECTION 14.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 14.14. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . 96
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Annex I - SELECTED DEFINITIONS AND SECTIONS
FROM THE 1994 9 3/4% NOTE INDENTURE. . . . . . . . . . . . . . A - 1
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INDENTURE, dated as of ___________, 199_, by and among Jacor
Communications Company, a Florida corporation (the "Company"), Jacor
Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the
Subsidiary Guarantors (as defined herein) and ____________________, a
________________ corporation, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of debentures, notes,
bonds, or other evidences of indebtedness (the "Securities"), to be issued in
one or more series, as provided in this Indenture.
The Company is a direct wholly-owned subsidiary of the Parent
Guarantor and each of the Subsidiary Guarantors initially a party hereto is a
direct or indirect wholly-owned subsidiary of the Company. The Parent Guarantor
and the Subsidiary Guarantors will derive direct and indirect benefit from the
issuance of the Securities; accordingly, the Parent Guarantor and the Subsidiary
Guarantors have authorized the guarantee of the Company's obligations under this
Indenture and the Securities, and to provide therefor the Parent Guarantor and
the Subsidiary Guarantors have duly authorized the execution and delivery of
this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, the Parent Guarantor, and each of the Subsidiary Guarantors initially a
party hereto, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities (together with the related Parent Guarantee and Subsidiary
Guarantees) by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof
(together with the related Parent Guarantee and Subsidiary Guarantees), as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section 5.14.
"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
5.10.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
"ASSET SALE" shall have the meaning specified in Section 5.14.
"ASSET SALE DATE" shall have the meaning specified in Section 5.14.
"ASSET SALE OFFER" shall have the meaning specified in Section 5.14.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section
5.14.
"ASSET SALE OFFER PERIOD" shall have the meaning specified in Section
5.14.
"ASSET SALE OFFER PRICE" shall have the meaning specified in Section
5.14.
"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 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.
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"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BEARER SECURITY" means any Security, in the form established pursuant
to Section 3.1, which is payable to bearer.
"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.
"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
3
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
equivalent 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 1994 9 3/4% Note 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 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 1994 9 3/4% Note 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
4
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 beginning 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
the Company 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.
"CLOSING PRICE" means the last reported sale price of the Jacor Common
Stock or Jacor Preferred Stock, as applicable, on the Nasdaq National Market or
other exchange upon which Jacor Common Stock or Jacor Preferred Stock, as
applicable, is then listed or admitted to trading or, in case no such sale takes
place on such day, the average of the closing bid and asked prices on the
applicable market or exchange.
"CODE" means the Internal Revenue Code of 1986, as amended.
5
"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 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 to any Indebtedness represented by the guarantee 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
6
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
purposes with the financial statements of such person in accordance with GAAP.
"CONVERSION AGENT" means any Person authorized by the Company to
receive Securities to be converted into Jacor Common Stock or Jacor Preferred
Stock on behalf of the Company and the Parent Guarantor. The Company and the
Parent Guarantor initially authorize the Trustee to act as Conversion Agent for
the Securities on their behalf. The Company and the Parent Guarantor may at any
time or from time to time authorize one or more Persons to act as Conversion
Agent in addition to or in place of the Trustee with respect to any series of
Securities issued under this Indenture.
"CONVERSION PRICE" means, with respect to any series of Securities
which are convertible into Jacor Common Stock or Jacor Preferred Stock, the
price per share of Jacor Common Stock or Jacor Preferred Stock at which the
Securities of such series are so convertible pursuant to Section 3.1 with
respect to such series, as the same may be adjusted from time to time in
accordance with Section 13.3.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 9.3.
"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
7
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 (f) under the definition of Permitted Indebtedness, or (iv) otherwise
altering the terms and conditions thereof.
"CURRENT MARKET PRICE" on any date means the average of the daily
Closing Prices per share of Jacor Common Stock or Jacor Preferred Stock, as
applicable, for any thirty (30) consecutive Trading Days selected by the
Company prior to the date in question, which thirty (30) consecutive Trading Day
period shall not commence more than forty-five (45) Trading Days prior to the
day in question; PROVIDED that with respect to Section 13.3(3), the "Current
Market Price" of the Jacor Common Stock or Jacor Preferred Stock, as applicable,
shall mean the average of the daily Closing Prices per share of Jacor Common
Stock or Jacor Preferred Stock, as applicable, for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in Section
13.3(3) (or if such date is not a Trading Day, on the Trading Day immediately
preceding such date).
"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 3.13.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 3.4 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.
"DISCOUNT SECURITIES" means any Securities which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code (or
any successor provision) and the regulations thereunder.
"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
8
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 Interests other than
any common equity with no preference, privileges, or redemption or repayment
provisions.
"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 7.1.
"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 5.14.
"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.
"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 5.3 of this Indenture payable, in form and amount, on a
PRO RATA basis to all holders of Jacor Common Stock, (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.
9
"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.
"FINAL PUT DATE" shall have the meaning specified in Section 5.14.
"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 Bearer Security or Registered Security
evidencing all or part of a series of Securities, including, without limitation,
any temporary or permanent Global Security.
"GUARANTEE" shall have the meaning provided in Section 12.1.
"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.
"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 5.11.
"INCURRENCE DATE" shall have the meaning specified in Section 5.11.
"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
10
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.
"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
11
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 permitted 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 COMMON STOCK" means shares of the Parent Guarantor's common
stock, par value $.01 per share.
"JACOR PREFERRED STOCK" means shares of the Parent Guarantor's
preferred stock, par value $.01 per share.
"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 or other then-existing credit
facilities of the Company, "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 or other then-existing credit
facilities of the Company 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 or other then-existing credit facilities
of the Company on the date of issuance of such Qualified Capital Stock or
Indebtedness at least to the same extent as the Securities.
"LEGAL DEFEASANCE" shall have the meaning specified in Section 9.2.
"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
12
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.
"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.
"1994 9 3/4% NOTE INDENTURE" means the indenture which governs the
terms and provisions of the 1994 9 3/4% Notes, as amended or supplemented from
time to time in accordance with the terms thereof.
13
"1994 9 3/4% NOTES" means the 9 3/4% Senior Subordinated Notes due
February 15, 2004 issued by Citicasters pursuant to an indenture dated as of
February 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.
"1994 9 3/4% NOTE ASSET SALE OFFER" means an offer to purchase the 1994
9 3/4% Notes in accordance with the procedures set forth in Annex I hereto.
"1994 9 3/4% NOTE EVENT" means (x) the maturity of the 1994 9 3/4%
Notes, (y) the date upon which defeasance of the 1994 9 3/4% Notes becomes
effective or (z) the date on which there are no longer any 1994 9 3/4% Notes
outstanding under the terms of the governing indenture.
"1996 9 3/4% NOTES" means the 9 3/4% Senior Subordinated Notes due
December 15, 2006 issued by the Company pursuant to an indenture dated as of
December 17, 1996 between the Company, the Parent Guarantor, the Subsidiary
Guarantors, and The Bank of New York, as Trustee.
"1996 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 Communications,
Inc., as Initial Guarantor and First Trust of Illinois, National Association, as
Trustee.
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
7.1(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 14.4 and 14.5 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
14
employee of the Company) or an Agent, as applicable, complying with the
requirements of Sections 14.4 and 14.5, 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 3.9 hereof.
"PARENT" or "PARENT" of any person means a corporation which at the
date of determination owns, directly or indirectly, a majority of the Voting
Stock of such person or of a Parent of such person.
"PARENT GUARANTEE" means the guarantee of the Securities by the Parent
Guarantor.
"PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware
corporation.
"PAYING AGENT" has the meaning specified in Section 3.4.
"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
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 5.11 hereof or clause (c) of this definition;
15
(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 or other then-existing credit
facilities of the Company 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 the maximum borrowing amount
permitted by the Credit Facility or other then-existing credit facilities of the
Company, 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 or other then-existing
credit facilities of the Company, 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 providing 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 5.11; 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
16
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;
(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 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
17
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 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 or other then-existing credit facilities of the Company; 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.
18
"PLAN OF LIQUIDATION" means a plan that provides for, contemplates or
the effectuation of which is preceded 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.; EFM Programming, Inc.; 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.; Inmobiliaria 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 Knoxville, Inc.;
Jacor Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.;
Jacor Broadcasting of St. Louis, 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 San Diego, Inc.; Noble Broadcast of St. Louis, Inc.;
Noble Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.;
Regent Broadcasting of Charleston, Inc.; Regent Broadcasting of Kansas City,
Inc.; Regent Broadcasting of Las Vegas, Inc.; Regent Broadcasting of Las
Vegas II, Inc.; Regent Broadcasting of Louisville, Inc.; Regent Broadcasting
of Louisville II, Inc.; Regent Broadcasting of Salt Lake City, Inc.; Regent
Broadcasting of Salt Lake City II, Inc.; Regent Licensee of Charleston, Inc.;
Regent Licensee of Kansas City, Inc.; Regent Licensee of Las Vegas, Inc.;
Regent Licensee of Las Vegas II, Inc.; Regent Licensee of Louisville, Inc.;
Regent Licensee of Louisville II, Inc.; Regent Licensee of Salt Lake City,
Inc.; Regent Licensee of Salt Lake City II, Inc.; Sports Radio Broadcasting,
Inc.; Sports Radio, Inc.; Taft-TCI Satellite Services, Inc.; The Sy Fischer
Company Agency, Inc.; VTTV Productions; and WHOK, Inc.; 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.
19
"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 redemption pursuant to Article IV of
this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the redemption price for such redemption, which shall include,
without duplication, in each case, accrued and unpaid interest to the Redemption
Date (subject to the provisions of Section 4.5).
"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.
20
"REGISTERED SECURITY" means any Security in the form established
pursuant to Section 3.1 which is registered as to principal and interest
pursuant to Section 3.4.
"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" with regard to the Credit Facility means Chemical
Bank in its capacity as Administrative Agent for lenders pursuant to the Credit
Facility, and not in its individual capacity as a lender, and any successor
Administrative Agent appointed pursuant to the Credit Facility, and with regard
to other then-existing credit facilities of the Company means the Person serving
as Administrative Agent for lenders pursuant to such other then-existing credit
facilities, and not in its individual capacity as a lender, and any successor
Administrative Agent appointed pursuant to such other then-existing credit
facilities.
"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.
21
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
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 or other
then-existing credit facilities of the Company, and interest, whether or not
such interest is allowed or allowable, accruing on Indebtedness incurred
pursuant to the Credit Facility or other then-existing credit facilities of the
Company 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 other
then-existing credit facilities of the Company 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 Guarantee; 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.
"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 3.13.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or premium thereon or interest thereon, means
the date specified in such Security or a coupon, if any, representing such
installment of interest, as the date on which the principal of such Security or
such installment of principal, premium, or interest is due and payable.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment to the Securities or such
Guarantee, as applicable, in any respect or has a stated maturity on or after
the Stated Maturity.
22
"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 GUARANTEES" means the guarantees of the Securities by the
Subsidiary Guarantors.
"SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors
and (ii) Future Subsidiary Guarantors 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.
"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.
"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 10.3.
"TRADING DAY" means, with respect to the Jacor Common Stock or Jacor
Preferred Stock, as applicable, so long as the Jacor Common Stock or Jacor
Preferred Stock, as applicable, is listed or admitted to trading on the Nasdaq
National Market or other market or exchange, a day on which the Nasdaq National
Market or such other market or exchange is open for the transaction of business.
"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 is referred because of his knowledge of and familiarity with
the particular subject.
23
"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 1.2. 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.
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 1.3. 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;
24
(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
SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including temporary or permanent Global Securities) as shall be
established by or pursuant to a Board Resolution of the Company or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture (including the notations thereon relating to the
Subsidiary Guarantees contemplated by Section 2.4), and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with law, or with the rules of any
securities exchange or to conform to general usage, all as may, consistently
herewith, be determined by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or coupons. If temporary Global
Securities of any series are issued as permitted by Section 3.11, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution of the Company establishing the forms of Securities or
coupons of any series (or any such temporary Global Security) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the authentication and delivery of such Securities (or
any such temporary Global Security) or coupons.
Unless otherwise specified as contemplated by Section 3.1, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
notations of Subsidiary Guarantees, as the case may be, as evidenced by their
execution of such Securities or coupons or notations of Subsidiary Guarantees,
as the case may be.
25
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities described in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee and Authenticating Agent
By ___________________________
Authorized Signatory
Dated: _______________, 199__."
SECTION 2.3. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable as Global Securities, as
contemplated by Section 3.1, then, notwithstanding clause (10) of Section 3.1
and the provisions of Section 3.2, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein. Subject to the provisions of Section 3.2
and, if applicable, Section 3.10, the Trustee shall deliver and redeliver any
permanent Global Security in the manner and upon instructions given by the
Person or Persons specified therein.
Unless otherwise specified as contemplated by Section 3.1, payment of
principal of and any premium and interest on any Global Security shall be made
to the Person or Persons specified therein.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no
transfer of this Security (other than a transfer of this Security as a
whole by the Depositary to a nominee of the Depositary or by a
26
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in such limited circumstances."
SECTION 2.4. FORM OF NOTATION RELATING TO GUARANTEES.
The form of notation to be set forth on each Security relating to the
Guarantees shall be in substantially the following form:
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.
ARTICLE III
THE SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Sections 14.4
and 14.5) set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
27
(1) The title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of Securities);
(2) Any limit on the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon transfer of, or in exchange for,
or in lieu of, other Securities of such series pursuant to Sections 3.4, 3.7,
3.8, 3.12, 4.7 or 10.5);
(3) The percentage of the principal amount at which the Securities of
such series will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration
of the maturity or upon redemption thereof or the method by which such portion
shall be determined;
(4) The date or dates on which, or periods during which, the
Securities of the series may be issued, and the date or dates or the method by
which such date or dates will be determined, on which the principal of (and
premium, if any, on) the Securities of such series are or may be payable (which,
if so provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time as set forth in the Securities of
the series issued from time to time);
(5) The rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from which such
interest, if any, shall accrue or the method by which such date or dates shall
be determined (which, in either case or both, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company from time
to time and set forth in the Securities of the series issued from time to time)
and the circumstances, if any, in which the Company may defer interest payments;
and the Interest Payment Dates on which such interest shall be payable (or the
method of determination thereof), and the Record Dates, if any, for the interest
payable on such Interest Payment Dates and the notice, if any, to Holders
regarding the determination of interest, the manner of giving such notice, the
basis upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(6) The place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered Securities) or
such other place or places, if any, outside of the United States (in the case of
Bearer Securities), where the principal of (and premium, if any) and interest on
Securities of the series shall be payable and where such Securities may be
surrendered for conversion or registration of transfer or exchange; the extent
to which, or the manner in which, any interest payable on any Global Security on
an Interest Payment Date will be paid, if other than in the manner provided in
Section 3.13; and the manner in which any principal of, or premium, if any, on,
any Global Security will be paid, if other than as set forth elsewhere herein
and whether any Global Security will require any notation to evidence payment of
principal or interest;
28
(7) The Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security is
registered at the close of business on the Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature and the extent to
which, or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the manner
provided in Section 3.11;
(8) The obligation, if any, of the Company to redeem, repay, purchase
or offer to purchase Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or upon other conditions or at
the option of the Holder thereof and the period or periods within which or the
dates on which, the prices at which and the terms and conditions upon which the
Securities of the series shall be redeemed, repaid, purchased or offered to be
purchased, in whole or in part, pursuant to such obligation;
(9) The right, if any, of the Company to redeem the Securities of
such series at its option and the period or periods within which, or the date or
dates on which, the price or prices at which, and the terms and conditions upon
which, such Securities may be redeemed, if any, in whole or in part, at the
option of the Company or otherwise;
(10) The denominations in which any Securities of the series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) Whether the Securities of the series are to be issued as Discount
Securities and the amount of discount with which such Securities may be issued
and, if other than the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable upon declaration of
acceleration of the Maturity Date thereof pursuant to Section 7.2;
(12) Additional provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to Securities of the series,
which provisions may be in addition to, or in substitution for, or in
modification of (or any combination of the foregoing), the provisions of the
Indenture;
(13) Whether Securities of the series are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are issued,
whether coupons will be attached thereto, whether such Bearer Securities of the
series may be exchanged for Registered Securities of the series, and the
circumstances under which and the place or places at which any such exchanges,
if permitted, may be made;
(14) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
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(15) If other than the currency of the United States, the currency or
currencies in which Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the Securities
of the series may be made, and the particular provisions applicable thereto;
(16) If the principal of (and premium, if any) or interest on
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies other than that or those in which
the Securities are denominated or payable without such election, the currency or
currencies in which such payments may be made, the period or periods within
which and the terms and conditions upon which, such election may be made and the
time and the manner of determining the exchange rate or rates between the
currency or currencies in which the Securities are denominated or payable
without such election and the currency or currencies in which the Securities are
to be paid if such election is made;
(17) The date as of which any Securities of the series shall be dated,
if other than the date of authentication;
(18) If the amount of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with reference to
an index, including, but not limited to, an index based on a currency or
currencies other than that in which the Securities are denominated or payable,
or any other type of index, the manner in which such amounts shall be
determined;
(19) The applicable overdue rate, if any;
(20) If the Securities of the series do not bear interest, the
applicable dates for purposes of Section 3.6;
(21) Any addition to, or modification or deletion of, any Event of
Default or covenant provided for in this Indenture with respect to Securities of
the series;
(22) If Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Security in global form
(representing all of the Outstanding Bearer Securities of the series) payable in
respect of any Interest Payment Date prior to the exchange of such temporary
Security for definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to interest
payable on such Interest Payment Date, (y) the terms upon which interests in
such temporary Security in global form may be exchanged for interests in a
permanent Global Security or for definitive Securities of the series and the
terms upon which interests in a permanent Global Security, if any, may be
exchanged for definitive Securities of the series and (z) the cities and the
newspapers designated for the purposes of giving notices to Holders;
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(23) Whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities; and if the Securities of the
series are issuable only as Registered Securities, the manner in which and the
circumstances under which Global Securities representing Securities of the
series may be exchanged for Registered Securities in definitive form, if other
than, or in addition to, the manner and circumstances specified in Section 3.7;
(24) The designation, if any, of any depositaries, trustees (other
than the Trustee), Registrars, Paying Agents, Conversion Agents or Securities
Custodians (other than the Trustee) or other agents with respect to the
Securities of such series;
(25) If the Securities of such series will be issuable in definitive
form only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such certificates,
documents or conditions;
(26) Whether the Securities of such series will be convertible into
shares of Jacor Common Stock or Jacor Preferred Stock or other securities or
property of the Company, and, if so, the terms and conditions, which may be in
addition to or in lieu of the provisions contained in this Indenture, upon which
such Securities will be so convertible, including the conversion price and the
conversion period;
(27) The terms, if any, on which the Securities of such series will be
subordinate to other debt of the Company;
(28) Any listing of the Securities on a securities exchange;
(29) The provisions, if any, relating to any security provided for the
Securities of such series; and
(30) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and (subject to Sections 14.4 and 14.5) set forth in
such Officers' Certificate, or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time, and unless
otherwise provided, a series may be reopened for issuance of additional
Securities of such series.
If any of the terms of a series of Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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SECTION 3.2. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.1 with
respect to the Securities of any series, the Securities of such series shall be
issuable only in denominations of $1,000 and any integral multiple thereof and
shall be payable only in the currency of the United States.
SECTION 3.3. 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.
The Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated.
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.
SECTION 3.4. 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 IV, IX, XI, and Section 5.14 and as otherwise
specified in this Indenture, neither the Company nor any Affiliate of the
Company shall act as Paying Agent. The Registrar shall keep
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a register of the Registered 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 acknowledgment
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 ____________________________
("_________") 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 7.1(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.
SECTION 3.5. 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.
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SECTION 3.6. 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).
SECTION 3.7. 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 accordingly. 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.
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(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 3.7(d)
shall be registered in 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 3.7), 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,
35
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.
(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 canceled, such Global
Security shall be returned to or retained and canceled 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 canceled, 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 3.11, 4.7, 5.14(8), 10.5, 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 IV, except the unredeemed portion
of any definitive Security being redeemed in part, or (b) any Security for
a period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase pursuant to Article XI or Section 5.14 hereof or
redemption of Securities pursuant to Article IV hereof and ending at the
close of business on the day of such mailing.
SECTION 3.8. 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
36
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 3.9. 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 canceled 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 3.8
and those described in this Section 3.9 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 3.10.
If a Security is replaced pursuant to Section 3.8 (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 3.8.
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 3.10. 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.
SECTION 3.11. 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
37
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 3.12. 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
3.8, 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 canceled as
provided in this Section 3.12, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 3.13. DEFAULTED INTEREST.
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 5.1 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
38
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
at his address as it appears in the Security register not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been 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 3.14. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE IV
REDEMPTION
SECTION 4.1. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.1 for Securities of any series) in
accordance with this Article.
SECTION 4.2. NOTICES TO TRUSTEE AND PAYING AGENT.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. The Company shall notify the Trustee and the
Paying Agent in writing of the
39
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 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 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 4.2 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 canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 4.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, 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 4.4. 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 Trustee, 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;
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(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 4.6 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;
(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 4.4.
SECTION 4.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 4.4,
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 Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
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SECTION 4.6. 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 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 5.1 hereof and the Security.
SECTION 4.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee 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 V
COVENANTS
SECTION 5.1. 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.
42
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 5.2. 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 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 14.2.
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.
If Securities of a series are issuable as Bearer Securities, the
Company must, subject to any laws or regulations applicable thereto, maintain an
office or agency located outside of the United States where Securities of that
series and related coupons, if any, may be presented and surrendered for
payment. The Company must maintain such office or agency in addition to
maintaining an office or agency in the Borough of Manhattan, The City of New
York.
SECTION 5.3. 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 5.11, 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 amount set forth in the
applicable prospectus supplement.
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
43
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 the amount set forth in the applicable prospectus supplement, (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 5.4. CORPORATE EXISTENCE.
Subject to Article VI, the Company and the Guarantors shall do or
cause to be done all things necessary to 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 5.5. 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.
44
SECTION 5.6. 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 5.6 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 5.7. 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 activities 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.
45
SECTION 5.8. 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
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 5.9. 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 5.10. 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 Affiliate 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 the amount set
forth in the applicable prospectus supplement, unless such Affiliate
Transaction(s) is evidenced by (A) an Officers' Certificate addressed and
delivered to the Trustee certifying that such Affiliate Transaction(s) has been
approved by a majority of the members of the Board of Directors of the Company
who 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
46
Officers' Certificate addressed and delivered to the Trustee certifying that
such Affiliate Transaction(s) has been approved by a majority of the members of
the Board of Directors of the Parent Guarantor who are disinterested in such
transaction and (iii) if involving consideration to either party in excess of
the amount set forth in the applicable prospectus supplement, 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 5.11. 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, guarantee,
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 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 ____ to ____.
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 5.12. 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 specified Indebtedness outstanding on the Issue Date, (d) restrictions
47
under any Acquired 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 or other
then-existing credit facilities of the Company 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 5.11 or permitted pursuant to the definition of Permitted Indebtedness,
shall in and of themselves be considered a restriction on the ability of the
applicable Subsidiary to transfer such agreement or assets, as the case may be.
SECTION 5.13. 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 1996 10 1/8% Notes and the 1996 9 3/4% 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 5.11 and (2) Liens securing Senior Debt incurred as
permitted pursuant to the definition of Permitted Indebtedness.
SECTION 5.14. 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
48
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 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 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 an Asset Sale
Offer for the 1994 9 3/4% Notes, the 1996 10 1/8% Notes and the 1996 9 3/4%
Notes in each case if required, has been completed. To the extent that any
Excess Proceeds (as defined below) remain after expiration of an Asset Sale
Offer Period for the 1994 9 3/4% Notes, the 1996 10 1/8% Notes and the 1996
9 3/4% Notes, the Company may use the remaining Net Cash Proceeds, to the
extent Excess Proceeds 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 1996 10 1/8% Notes and the 1996 9 3/4%
Notes, the amount required under the covenant
49
Limitation on Sale of Assets and Subsidiary Stock as set forth in the governing
indenture; PROVIDED, HOWEVER, that with respect to the 1994 9 3/4% Notes this
paragraph shall be of no further force and effect upon a 1994 9 3/4% Note Event
and with respect to the 1996 10 1/8% Notes and the 1996 9 3/4% Notes this
paragraph shall be of no further force and effect upon the earlier of (w) the
maturity of the 1996 10 1/8% Notes or the 1996 9 3/4% Notes, as applicable, (x)
the date upon which defeasance of the 1996 10 1/8% Notes or the 1996 9 3/4%
Notes, as applicable, becomes effective, (y) the date on which there are no
longer any 1996 10 1/8% Notes or the 1996 9 3/4% Notes, as applicable,
outstanding under the terms of the governing indenture 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 1996 10 1/8% Notes
or the 1996 9 3/4% Notes, as applicable.
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 and in
accordance with the provisions of Section 6.1;
(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 5.14 is referred to as the "Excess Proceeds."
For purposes of this Section 5.14, "Excess Proceeds Date" means each
date on which the Excess Proceeds exceeds $_________. 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
5.14. The Asset Sale Offer shall 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
50
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 5.14;
(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 5.14 or such payment is otherwise prevented, any 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 any forms required by the Company completed, to the Paying
Agent (which may not for purposes of this Section 5.14, 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 5.14, 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 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);
51
(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 5.14), (ii) deposit with the
Paying Agent Cash sufficient to 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.
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 5.14 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 accor-
52
dance 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 5.14, 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 5.15. 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 in the covenant "Limitation on Inurrence of Additional
Indebtedness and Disqualified Capital Stock;" (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 $__________, by the Board
of Directors of the Company, as evidenced by a Board Resolution) are
substantially the same at the time of entering into the agreement to swap
assets; and (iv) at the time of the consummation of the proposed Asset Swap, the
percentage of any decline in the fair market value (determined as aforesaid) of
the asset or assets being acquired by the Company and its 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 5.16. 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 5.17. 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.
53
SECTION 5.18. 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
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.
ARTICLE VI
SUCCESSOR CORPORATION
SECTION 6.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) 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
(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
5.11.
(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.
54
SECTION 6.2. 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 6.1 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 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 VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1. 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 5.14, or otherwise;
(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;
55
(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;
(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 7.2. 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 7.1(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 writing to the Company (and to the Trustee if given
by Holders), 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 Credit Facility or other then-existing credit
56
facilities of the Company 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 Credit
Facility or other then-existing credit facilities of the Company. In the event
a declaration of acceleration resulting from an Event of Default described in
Section 7.1(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
7.1(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 7.1(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 VII, 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:
(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 8.7, 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 such declara-
57
tion of acceleration, have been cured or waived as provided in Section 7.12,
including, if applicable, any Event of Default relating to the covenants
contained in Section 11.1.
Notwithstanding the previous sentence of this Section 7.2, 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 7.3. 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 7.1
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 8.7.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust 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 7.4. 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
58
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 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 8.7) 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 8.7.
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.
SECTION 7.5. 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 8.7, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 7.6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VII shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such
59
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 8.7;
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
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 7.6.
SECTION 7.7. 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 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
60
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 7.8. 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 7.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 3.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.10. 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 VII 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 7.11. 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,
61
(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.
SECTION 7.12. WAIVER OF PAST DEFAULT.
Subject to Section 7.8, 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
7.1 and not yet cured,
(B) in respect of a covenant or provision hereof which,
under Article X, 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
X, 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 7.13. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be 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 7.13 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
62
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 7.14. 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.
ARTICLE VIII
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 8.1. 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 8.1,
(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 7.11.
(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
8.1.
(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.
SECTION 8.2. RIGHTS OF TRUSTEE.
Subject to Section 8.1:
(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 14.4 and 14.5. 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.
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(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,
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 V 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 8.3. 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 8.10 and 8.11.
SECTION 8.4. 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
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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 8.5. 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 8.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each [DATE] beginning with the [DATE] following
the date of this Indenture, the Trustee shall, if required by law, mail to each
Securityholder a brief report dated as of such [DATE] that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
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 8.7. 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,
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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 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 8.7, 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 7.1(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 8.7
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 IX of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
SECTION 8.8. 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 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 8.10;
(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.
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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
8.7 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
8.7, 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
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, 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
8.8, the Company and the Guarantors' obligations under Section 8.7 shall
continue for the benefit of the retiring Trustee.
SECTION 8.9. 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 8.10. 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).
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SECTION 8.11. 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.
ARTICLE IX
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.1. 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 8.7 and the Trustee's
and the Paying Agent's obligations under Sections 9.6 and 9.7 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 9.2 or may, at any time,
elect to have Section 9.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article IX.
SECTION 9.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 9.1 of the option applicable
to this Section 9.2, 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 9.5 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 acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Section 9.4, 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 3.5, 3.7, 3.8, 3.11 and 5.2, (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 IX. Upon
Legal Defeasance as provided herein, the Guarantee 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
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with this Article IX, the Company may exercise its option under this Section 9.2
notwithstanding the prior exercise of its option under Section 9.3 with respect
to the Securities.
SECTION 9.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 9.1 of the option applicable
to this Section 9.3, the Company and the Guarantors shall be released from their
respective obligations under the covenants contained in Sections 5.3, 5.5, 5.6,
5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16 and 5.17, Article VI,
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
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
7.1(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 9.1 of the option
applicable to this Section 9.3, Sections 7.1(3) through 7.1(7) shall not
constitute Events of Default. Upon Covenant Defeasance, as provided herein, the
Guarantee 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 9.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 9.2 or Section 9.3 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 8.10 who shall agree to comply with the
provisions of this Article IX 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 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,
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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 9.4;
(b) In the case of an election under Section 9.2, 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 9.3, 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;
(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 7.1(4) or Section 7.1(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 9.3 will
cease to be in effect unless an Event of Default under Section 7.1(4) or Section
7.1(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 9.2 or 9.3,
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 9.2
or 9.3 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
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(h) The Company shall have delivered to the Trustee an Opinion
of Counsel stating that the conditions set out in Section 9.4(a)(with respect to
the validity and perfection of the security interest), (b), (c) and (e) above.
(i) The Company or the Parent Guarantor shall have delivered to
the Trustee any required consent of the lenders under the Credit Facility or
other then-existing credit facilities of the Company to such defeasance or
covenant defeasance, as the case may be.
SECTION 9.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 9.6, 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 9.5, the "Paying
Agent") pursuant to Section 9.4 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 9.4 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 9.6. REPAYMENT TO THE COMPANY.
Anything in this Article IX 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 9.4 hereof which in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 9.4(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,
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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 9.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 9.2 or 9.3, 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 Section 9.2 or 8.3 until such time as the Trustee or Paying Agent is
permitted to apply such money in accordance with Section 9.2 and 9.3, 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 X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1. 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;
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(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 VI;
(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 XIV;
(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;
(9) to add any additional Events of Default;
(10) to add or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities of any series in bearer form, registrable or not registrable, and
with or without coupons, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in exchange
for Bearer Securities of other authorized denominations or to permit the
issuance of Securities of any series in uncertificated form, PROVIDED that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect;
(11) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become effective
only when there is no Outstanding Debt Security or coupon of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision and as to which such supplemental indenture would
apply;
(12) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such series or
any other series of Securities or any related coupons in any material respect;
or
(13) to establish the form or terms of Securities and coupons, if
any, of any series as permitted by Sections 2.1 and 3.1.
SECTION 10.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS.
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Subject to Section 7.8, 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 7.8, 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 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 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 1994 9 3/4% Note 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.
It shall not be necessary for the consent of the Holders under this
Section 10.2 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.
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After an amendment, supplement or waiver under this Section 10.2 or
Section 10.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article X, 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 10.3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.4. 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 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 10.2, 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 Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
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SECTION 10.5. 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 10.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article X; 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 X is authorized or
permitted by this Indenture.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. 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;
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(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;
(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;
(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
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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.
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
GUARANTEE
SECTION 12.1. GUARANTEE.
(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 "Guarantee"), 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 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 Guarantee 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 Guarantee 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.
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(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 Guarantee, 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
Guarantor, 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 7.2 for the purposes of this Guarantee, 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 7.2,
those obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Guarantee.
(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
Actor 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.
(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 Guarantee 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 Guarantee 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 Guarantee shall
be reduced by such court if and to the extent such reduction would result in the
avoidance of
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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 12.2. EXECUTION AND DELIVERY OF GUARANTEE.
Each Guarantor shall be deemed to have signed on each Security issued
hereunder the notation of guarantee set forth in Section 2.4 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 guarantee set forth in Section 12.1 on
behalf of each Guarantor. The notation of a guarantee set forth on any Security
shall be null and void and of no further effect with respect to the guarantee of
any Guarantor which, pursuant to Section 12.4 or Section 12.5, is released from
such guarantee.
SECTION 12.3. SUBSIDIARY GUARANTORS.
All present Subsidiaries of the Company and their Subsidiaries, and
(ii) all future Subsidiaries of the Company and their 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 guarantee irrevocably and
unconditionally all principal, premium, if any, and interest on the Securities
on the basis set forth in the applicable prospectus supplement; 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 12.4. 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.
(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
82
Guarantor) to any Person, provided that the Company shall comply with the
provisions of Section 5.14 and 5.17, 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 of the
obligations of the Guarantor pursuant hereto and pursuant to the Securities, the
Guarantor shall be released from such obligations.
SECTION 12.5. 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 5.14 of this Indenture; or (iii) a Legal
Defeasance or Covenant Defeasance, as set forth in Article IX.
(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
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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 instruments 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 12.6. 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 Guarantee 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.
ARTICLE XIII
CONVERSION
SECTION 13.1. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.1 for Securities of
any series, the provisions of this Article shall be applicable to any Securities
that are convertible into Jacor Common Stock or Jacor Preferred Stock. If so
provided pursuant to Section 3.1 with respect to the Securities of any series,
the Holder of a Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of Securities
and this Article, all or any part (in a denomination of, unless otherwise
specified pursuant to Section 3.1 with respect to Securities of such series,
$1,000 in principal amount or any integral multiple thereof) of such Security
into shares of Jacor Common Stock or Jacor Preferred Stock or, as to any
Securities called for redemption, at any time prior to the time and date fixed
for such redemption (unless the Company shall default in the payment of the
Redemption Price, in which case such right shall not terminate at such time and
date).
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SECTION 13.2. CONVERSION PROCEDURE; CONVERSION PRICE; NO FRACTIONAL
SHARES.
(a) Each Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified pursuant to Section 3.1 with respect to the Securities
of such series, into fully paid and nonassessable shares (calculated to the
nearest 1/100th of a share) of Jacor Common Stock or Jacor Preferred Stock. The
Securities will be converted into shares of Jacor Common Stock or Jacor
Preferred Stock at the Conversion Price therefor. No payment or adjustment
shall be made in respect of dividends on the Jacor Common Stock or Jacor
Preferred Stock or accrued interest on a converted Security except as described
in Section 13.9. The Parent Guarantor shall not, in connection with any
conversion of Securities, issue a fraction of a share of Jacor Common Stock or
Jacor Preferred Stock. The Parent Guarantor shall, subject to Section 13.3(4),
make a cash payment (calculated to the nearest cent) equal to such fraction
multiplied by the Closing Price of the Jacor Common Stock or Jacor Preferred
Stock, as applicable, on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Security shall be entitled to convert the
same into Jacor Common Stock or Jacor Preferred Stock, such Holder shall
surrender such Security duly endorsed to the Company or in blank, or, in the
case of Bearer Securities, together with any unmatured coupons and any matured
coupons in default attached thereto, at the office of the Conversion Agent or at
such other place or places, if any, specified pursuant to Section 3.1 (in the
case of Registered Securities) and at an office of the Conversion Agent or at
such other place or places, if any, outside of the United States as is specified
pursuant to Section 3.1 (in the case of Bearer Securities), and shall give
written notice to the Company at said office or place that such Holder elects to
convert the same and shall state in writing therein the principal amount of
Securities to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for Jacor Common Stock or Jacor
Preferred Stock to be issued; PROVIDED, HOWEVER, that no Security or portion
thereof shall be accepted for conversion unless the principal amount of such
Security or such portion, when added to the principal amount of all other
Securities or portions thereof then being surrendered by the Holder thereof for
conversion, exceeds the then-effective Conversion Price with respect thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, then such conversion
may be effected if the Bearer Securities to be surrendered for conversion are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, then such Holder shall be entitled
to receive the amount of such payment; PROVIDED, HOWEVER, that, except as
otherwise provided in Section 5.2, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares of Jacor Common Stock or Jacor Preferred Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the
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Securities (or specified portions thereof to the extent permitted thereby) so
surrendered. Subject to the next succeeding sentence, the Parent Guarantor
will, as soon as practicable thereafter, issue and deliver at said office or
place to such Holder of a Security, or to such Holder's nominee or nominees,
certificates for the number of full shares of Jacor Common Stock or Jacor
Preferred Stock to which such Holder shall be entitled as aforesaid, together
with cash in lieu of any fraction of a share to which such Holder would
otherwise be entitled. The Parent Guarantor shall not be required to deliver
certificates for shares of Jacor Common Stock or Jacor Preferred Stock while the
stock transfer books for such stock or the security register are duly closed for
any purpose, but certificates for shares of Jacor Common Stock or Jacor
Preferred Stock shall be issued and delivered as soon as practicable after the
opening of such books or Security Register. A Security shall be deemed to have
been converted as of the close of business on the date of the surrender of such
Security for conversion as provided above, and the Person or Persons entitled to
receive the Jacor Common Stock or Jacor Preferred Stock issuable upon such
conversion shall be treated for all purposes as the record Holder or Holders of
such Jacor Common Stock or Jacor Preferred Stock as of the close of business on
such date. In case any Security shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to or
upon the written order of the Holder of the Securities so surrendered, without
charge to such Holder (subject to the provisions of Section 13.8), a new
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Security.
SECTION 13.3. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price with respect to any Security which is convertible
into Jacor Common Stock or Jacor Preferred Stock shall be adjusted from time to
time as follows:
(1) In case the Parent Guarantor shall, at any time or from time to
time while any of such Securities are outstanding, (i) pay a dividend in shares
of the Jacor Common Stock or Jacor Preferred Stock to holders of Jacor Common
Stock or Jacor Preferred Stock, respectively, (ii) combine its outstanding
shares of Jacor Common Stock or Jacor Preferred Stock into a smaller number of
shares of Jacor Common Stock or Jacor Preferred Stock, respectively, (iii)
subdivide its outstanding shares of Jacor Common Stock or Jacor Preferred Stock
into a greater number of shares of Jacor Common Stock or Jacor Preferred Stock,
respectively, or (iv) make a distribution in shares of Jacor Common Stock or
Jacor Preferred Stock to holders of Jacor Common Stock or Jacor Preferred Stock,
respectively, then the Conversion Price in effect immediately before such action
shall be adjusted so that the Holders of such Securities, upon conversion
thereof into Jacor Common Stock or Jacor Preferred Stock immediately following
such event, shall be entitled to receive the kind and amount of shares of Jacor
Common Stock or Jacor Preferred Stock which they would have owned or been
entitled to receive upon or by reason of such event if such Securities had been
converted immediately before the record date (or, if no record date, the
effective date) for such event. An adjustment made pursuant to this Section
13.3(1) shall become effective retroactively immediately after the record date
in the case of a dividend or distribution and shall become effective
retroactively immediately after the effective date in the case of a subdivision
or combination. For the purposes of this Section 13.3(1), each Holder of
Securities shall be deemed to have failed to
86
exercise any right to elect the kind or amount of securities receivable upon the
payment of any such dividend, subdivision, combination or distribution
(PROVIDED, that if the kind or amount of securities receivable upon such
dividend, subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other property
receivable upon such dividend, subdivision, combination or distribution for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares).
(2) In case the Parent Guarantor shall, at any time or from time to
time while any of such Securities are outstanding, issue rights or warrants
to all holders of shares of Jacor Common Stock or Jacor Preferred Stock
entitling them (for a period expiring within 45 days after the record date
for such issuance) to subscribe for or purchase shares of Jacor Common Stock
or Jacor Preferred Stock (or securities convertible into shares of Jacor
Common Stock or Jacor Preferred Stock) at a price per share less than the
Current Market Price of the Jacor Common Stock or Jacor Preferred Stock at
such record date (treating the price per share of the securities convertible
into Jacor Common Stock or Jacor Preferred Stock as equal to (x) the sum of
(i) the price for a unit of the security convertible into Jacor Common Stock
or Jacor Preferred Stock and (ii) any additional consideration initially
payable upon the conversion of such security into Jacor Common Stock or Jacor
Preferred Stock divided by (y) the number of shares of Jacor Common Stock or
Jacor Preferred Stock initially underlying such convertible security), the
Conversion Price with respect to such Securities shall be adjusted so that it
shall equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by a
fraction, the numerator of which shall be the number of shares of Jacor
Common Stock or Jacor Preferred Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Jacor Common
Stock or Jacor Preferred Stock offered for subscription or purchase (or into
which the convertible securities so offered are initially convertible), and
the denominator of which shall be the number of shares of Jacor Common Stock
or Jacor Preferred Stock outstanding on the date of issuance of securities
which the aggregate offering price of the total number of shares of
securities so offered for subscription or purchase (or the aggregate purchase
price of the convertible securities so offered plus the aggregate amount of
any additional consideration initially payable upon conversion of such
securities into Jacor Common Stock or Jacor Preferred Stock) would purchase
at such Current Market Price of the Jacor Common Stock or Jacor Preferred
Stock. Such adjustment shall become effective retroactively immediately after
the record date for the determination of stockholders entitled to receive
such rights or warrants.
(3) In the case the Parent Guarantor shall, at any time or from time
to time while any of such Securities are outstanding, distribute to all holders
of shares of Jacor Common Stock or Jacor Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Parent Guarantor is the continuing corporation and the Jacor Common Stock or
Jacor Preferred Stock is not changed or exchanged) cash, evidences of its
indebtedness, securities or assets (excluding (i) regular periodic cash
dividends in amounts, if any, determined from time to time by the Board of
Directors, (ii) dividends payable in shares of Jacor Common Stock or Jacor
Preferred Stock for which adjustment is made under Section 13.3(1) or (iii)
rights or warrants to subscribe for or purchase securities of the Parent
Guarantor (excluding those referred to in Section 13.3(2)), then
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in each such case the Conversion Price with respect to such Securities
determined by dividing the Conversion Price in effect immediately prior to the
date of such distribution by a fraction, the numerator of which shall be the
Current Market Price of the Jacor Common Stock or Jacor Preferred Stock on the
record date referred to below, and the denominator of which shall be such
Current Market Price of the Jacor Common Stock or Jacor Preferred Stock less the
then fair market value (as determined by the Board of Directors of the Parent
Guarantor, whose determination shall be conclusive) of the portion of the cash
or assets or evidences of indebtedness or securities so distributed or of such
subscription rights or warrants applicable to one share of Jacor Common Stock or
Jacor Preferred Stock (PROVIDED that such denominator shall never be less than
1.0); PROVIDED, HOWEVER, that no adjustment shall be made with respect to any
distribution of rights to purchase securities of the Parent Guarantor if a
Holder of Securities would otherwise be entitled to receive such rights upon
conversion at any time of such Securities into Jacor Common Stock or Jacor
Preferred Stock unless such rights are subsequently redeemed by the Parent
Guarantor, in which case such redemption shall be treated for purposes of this
Section as a dividend on the Jacor Common Stock or Jacor Preferred Stock. Such
adjustment shall become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive such
distribution; and in the event that such distribution is not so made, the
Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such record date had not been fixed.
(4) The Company and the Parent Guarantor shall be entitled to make
such additional adjustments in the Conversion Price, in addition to those
required by subsections 13.3(1), 13.2(2), and 13.3(3), as shall be necessary
in order that any dividend or distribution of Jacor Common Stock or Jacor
Preferred Stock, any subdivision, reclassification or combination of shares
of Jacor Common Stock or Jacor Preferred Stock or any issuance of rights or
warrants referred to above shall not be taxable to the holders of Jacor
Common Stock or Jacor Preferred Stock for United States Federal income tax
purposes.
(5) In any case in which this Section 13.3 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Parent Guarantor may elect to defer (but only for five (5)
Trading Days following the filing of the statement referred to in Section 13.5)
issuing to the Holder of any Securities converted after such record date the
shares of Jacor Common Stock or Jacor Preferred Stock and other capital stock of
the Parent Guarantor issuable upon such conversion over and above the shares of
Jacor Common Stock or Jacor Preferred Stock and other capital stock of the
Parent Guarantor issuable upon such conversion on the basis of the Conversion
Price prior to adjustment; PROVIDED, HOWEVER, that the Parent Guarantor shall
deliver to such Holder a due bill or other appropriate instrument evidencing
such Holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(6) All calculations under this Section 13.3 shall be made to the
nearest cent or one-hundredth of a share of security, with one-half cent and
0.005 of a share, respectively, being rounded upward. Notwithstanding any other
provision of this Section 13.3, the Company and Parent Guarantor shall not be
required to make any adjustment of the Conversion Price unless such adjustment
would require an increase or decrease of at least 1% of such price. Any lesser
adjustment
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shall be carried forward and shall be made at the time of, and together with,
the next subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or decrease of at
least 1% in such price. Any adjustments under this Section 13.3 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 13.3, the Holder of any Security thereafter surrendered
for conversion shall become entitled to receive any shares of stock of the
Parent Guarantor other than shares of Jacor Common Stock or Jacor Preferred
Stock into which the Securities originally were convertible, the Conversion
Price of such other shares so receivable upon conversion of any such Security
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Jacor Common
Stock or Jacor Preferred Stock contained in subparagraphs (1) through (6) of
this Section 13.3, and the provisions of Sections 13.1, 13.2 and 13.4 through
13.9 with respect to the Jacor Common Stock or Jacor Preferred Stock shall
apply on like or similar terms to any such other shares and the determination of
the Board of Directors as to any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i) if the
effect thereof would be to reduce the Conversion Price below the par value (if
any) of the Jacor Common Stock or Jacor Preferred Stock or (ii) subject to
Section 13.3(5) hereof, with respect to any Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 13.4. CONSOLIDATION OR MERGER OF THE PARENT GUARANTOR.
In case of either (a) any consolidation or merger to which the Parent
Guarantor is a party, other than a merger or consolidation in which the Parent
Guarantor is the surviving or continuing corporation and which does not result
in a reclassification of, or change (other than a change in par value or from
par value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Jacor Common Stock or
Jacor Preferred Stock or (b) any sale or conveyance of all or substantially all
of the property and assets of the Parent Guarantor to another Person, each
Security then outstanding shall be convertible from and after such merger,
consolidation, sale or conveyance of property and assets into the kind and
amount of shares of stock or other securities and property (including cash)
receivable upon such consolidation, merger, sale or conveyance by a holder of
the number of shares of Jacor Common Stock or Jacor Preferred Stock into which
such Securities would have been converted immediately prior to such
consolidation, merger, sale or conveyance, subject to adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article (and assuming such holder of Jacor Common Stock or Jacor Preferred
Stock failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property (including cash) receivable upon
such consolidation, merger, sale or conveyance (PROVIDED that, if the kind or
amount of securities, cash or other property (including cash) receivable upon
such consolidation, merger, sale or conveyance is not the same for each
nonelecting share, then the kind and amount of securities, cash or other
property (including cash) receivable upon such consolidation, merger, sale or
conveyance for each
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nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Parent
Guarantor shall not enter into any of the transactions referred to in clause (a)
or (b) of the preceding sentence unless effective provision shall be made so as
to give effect to the provisions set forth in this Section 13.4. The provisions
of this Section 13.4 shall apply similarly to successive consolidations,
mergers, sales or conveyances.
SECTION 13.5. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to a
series of Securities is required:
(1) the Company shall forthwith place on file with the Trustee and any
Conversion Agent for such Securities a certificate of the Treasurer of the
Company, stating the adjusted Conversion Price determined as provided herein and
setting forth in reasonable detail such facts as shall be necessary to show the
reason for and the manner of computing such adjustment, such certificate to be
conclusive evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be given by the
Company, or at the Company's request, by the Trustee in the name and at the
expense of the Company. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice.
SECTION 13.6. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or conveyance to another Person or entity or group of Persons or entities
acting in concert as a partnership, limited partnership, syndicate or other
group (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of all or substantially all of the property and assets of the
Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Securities, and shall cause to be given, to
the Holders of record of applicable Securities, at least fifteen (15) days prior
to the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of any distribution or grant of
rights or warrants triggering an adjustment to the Conversion Price pursuant to
this Article, or, if a record is
90
not to be taken, the date as of which the holders of record or Jacor Common
Stock or Jacor Preferred Stock entitled to such distribution, rights or warrants
are to be determined, or (y) the date on which any reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up
triggering an adjustment to the Conversion Price pursuant to this Article is
expected to become effective, and the date as of which it is expected that
holders of Jacor Common Stock or Jacor Preferred Stock of record shall be
entitled to exchange their Jacor Common Stock or Jacor Preferred Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2), or (3) of
this Section.
SECTION 13.7. PARENT GUARANTOR TO RESERVE STOCK; REGISTRATION;
LISTING.
(a) The Parent Guarantor shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
shares of Jacor Common Stock or Jacor Preferred Stock, for the purpose of
effecting the conversion of the Securities, such number of its duly authorized
shares of Jacor Common Stock or Jacor Preferred Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Securities
into such Jacor Common Stock or Jacor Preferred Stock at any time (assuming
that, at the time of the computation of such number of shares or securities, all
such Securities would be held by a single holder); PROVIDED, HOWEVER, that
nothing contained herein shall preclude the Parent Guarantor from satisfying its
obligations in respect of the conversion of the Securities by delivery of
purchased shares of Jacor Common Stock or Jacor Preferred Stock which are held
in the treasury of the Parent Guarantor. The Parent Guarantor shall from time
to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Jacor Common Stock or Jacor
Preferred Stock to be increased if the aggregate of the authorized amount of the
Jacor Common Stock or Jacor Preferred Stock remaining unissued and the issued
shares of such Jacor Common Stock or Jacor Preferred Stock in its treasury
(other than any such shares reserved for issuance in any other connection) shall
not be sufficient to permit the conversion of all Securities.
(b) If any shares of Jacor Common Stock or Jacor Preferred Stock
which would be issuable upon conversion of Securities hereunder require
registration with or approval of any governmental authority before such shares
or securities may be issued upon such conversion, the Parent Guarantor will in
good faith and as expeditiously as possible endeavor to cause such shares or
securities to be duly registered or approved, as the case may be. The Parent
Guarantor will endeavor to list the shares of Jacor Common Stock or Jacor
Preferred Stock required to be delivered upon conversion of the Securities prior
to such delivery upon the principal national securities exchange upon which the
outstanding Jacor Common Stock or Jacor Preferred Stock is listed at the time of
such delivery.
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SECTION 13.8. TAXES ON CONVERSION.
The Parent Guarantor shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Jacor Common Stock or Jacor Preferred Stock on conversion
of Securities pursuant hereto. The Parent Guarantor shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Jacor Common Stock or Jacor
Preferred Stock or the portion, if any, of the Securities which are not so
converted in a name other than that in which the Securities so converted were
registered (in case of Registered Securities), and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Parent Guarantor the amount of such tax or has established to the satisfaction
of the Parent Guarantor that such tax has been paid.
SECTION 13.9. CONVERSION AFTER RECORD DATE.
If any Securities are surrendered for conversion subsequent to the
record date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Securities called for redemption on a Redemption Date
between such record date and Interest Payment Date), the Holder of such
Securities at the close of business on such record date shall be entitled to
receive the interest payable on such Securities on such Interest Payment Date
notwithstanding the conversion thereof. Securities surrendered for conversion
during the period from the close of business on any record date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date shall (except in the case of Securities which have been called for
redemption on a Redemption Date within such period) be accompanied by payment in
New York Clearing House funds or other funds and in the currency acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the Securities being surrendered for conversion. Except as provided in
this Section 13.9, no adjustments in respect of payments of interest on
Securities surrendered for conversion or any dividends or distributions of
interest on the Jacor Common Stock or Jacor Preferred Stock issued upon
conversion shall be made upon the conversion of any Securities.
SECTION 13.10. COMPANY AND PARENT GUARANTOR DETERMINATION FINAL.
Any determination that the Company, the Parent Guarantor, or the
respective Boards of Directors must make pursuant to this Article is conclusive.
SECTION 13.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities. The Trustee shall not be responsible for
the Company's or the Parent Guarantor's failure to comply with this Article.
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Each Conversion Agent other than the Company and the Parent Guarantor shall have
the same protection under this Section as the Trustee.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. 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.
SECTION 14.2. 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
50 East RiverCenter Boulevard
12th Floor
Covington, Kentucky 41011
Attention: Treasurer
Telephone: (606) 655-2276
Telecopy: (606) 655-9348
if to the Trustee:
Attention: Corporate Trust Trustee
Administration
Telephone:
Telecopy:
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
93
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 Security holder 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 Security holder or any
defect in it shall not affect its sufficiency with respect to other
Security holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 14.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Security holders may communicate pursuant to TIA Section 312(b) with
other Security holders 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).
SECTION 14.4. 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 14.4.
SECTION 14.5. 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:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
94
(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 14.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Security holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 14.7. 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 14.8. 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 SECURITY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
95
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY
AND THE GUARANTORS IN ANY OTHER JURISDICTION.
SECTION 14.9. 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 14.10. 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 Security holder 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 14.11. 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 14.12. 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.
SECTION 14.13. 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 14.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents 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.
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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:
------------------------------------
Name:
Title:
PARENT GUARANTOR:
JACOR COMMUNICATIONS, INC.
By:
------------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
BROADCAST FINANCE, INC.
By:
------------------------------------
Name:
Title:
CINE FILMS, INC.
By:
------------------------------------
Name:
Title:
97
CINE GUARANTORS, INC.
By:
------------------------------------
Name:
Title:
CINE GUARANTORS II, INC.
By:
------------------------------------
Name:
Title:
CINE GUARANTORS II, LTD.
By:
------------------------------------
Name:
Title:
CINE MOBILE SYSTEMS INT'L N.V.
By:
------------------------------------
Name:
Title:
CINE MOVIL S.A. DE C.V.
By:
------------------------------------
Name:
Title:
98
CITICASTERS CO.
By:
------------------------------------
Name:
Title:
EFM PROGRAMMING, INC.
By:
------------------------------------
Name:
Title:
F.M.I. PENNSYLVANIA, INC.
By:
------------------------------------
Name:
Title:
GACC-N26LB, INC.
By:
------------------------------------
Name:
Title:
GACC-340, INC.
By:
------------------------------------
Name:
Title:
GEORGIA NETWORK EQUIPMENT, INC.
By:
------------------------------------
Name:
Title:
99
GREAT AMERICAN MERCHANDISING GROUP, INC.
By:
------------------------------------
Name:
Title:
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By:
------------------------------------
Name:
Title:
INMOBILIARIA RADIAL, S.A. DE C.V.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING CORPORATION
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF ATLANTA, INC.
By:
------------------------------------
Name:
Title:
100
JACOR BROADCASTING OF COLORADO, INC.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF FLORIDA, INC.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF KNOXVILLE, INC.
By:
------------------------------------
Name:
Title:
101
JACOR BROADCASTING OF SAN DIEGO, INC.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF SARASOTA, INC.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF ST. LOUIS, INC.
By:
------------------------------------
Name:
Title:
JACOR BROADCASTING OF TAMPA BAY, INC.
By:
------------------------------------
Name:
Title:
102
JACOR CABLE, INC.
By:
------------------------------------
Name:
Title:
LOCATION PRODUCTIONS, INC.
By:
------------------------------------
Name:
Title:
LOCATION PRODUCTIONS II, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST CENTER, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST GROUP, INC.
By:
------------------------------------
Name:
Title:
103
NOBLE BROADCAST HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST LICENSES, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST OF COLORADO, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST OF SAN DIEGO, INC.
By:
------------------------------------
Name:
Title:
NOBLE BROADCAST OF ST. LOUIS, INC.
By:
------------------------------------
Name:
Title:
104
NOBLE BROADCAST OF TOLEDO, INC.
By:
------------------------------------
Name:
Title:
NOBRO, S.C.
By:
------------------------------------
Name:
Title:
NOVA MARKETING GROUP, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF CHARLESTON, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF KANSAS CITY, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF LAS VEGAS, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF LAS VEGAS II, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF LOUISVILLE, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF LOUISVILLE II, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF SALT LAKE CITY, INC.
By:
------------------------------------
Name:
Title:
REGENT BROADCASTING OF SALT LAKE CITY II, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF CHARLESTON, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF KANSAS CITY, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF LAS VEGAS, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF LAS VEGAS II, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF LOUISVILLE, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF LOUISVILLE II, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF SALT LAKE CITY, INC.
By:
------------------------------------
Name:
Title:
REGENT LICENSEE OF SALT LAKE CITY II, INC.
By:
------------------------------------
Name:
Title:
SPORTS RADIO BROADCASTING, INC.
By:
------------------------------------
Name:
Title:
SPORTS RADIO, INC.
By:
------------------------------------
Name:
Title:
105
TAFT-TCI SATELLITE SERVICES, INC.
By:
------------------------------------
Name:
Title:
THE SY FISCHER COMPANY AGENCY, INC.
By:
------------------------------------
Name:
Title:
VTTV PRODUCTIONS
By:
------------------------------------
Name:
Title:
WHOK, INC.
By:
------------------------------------
Name:
Title:
as Trustee
---------------------------,
By:
------------------------------------
Name:
Title:
106
Annex I
SELECTED DEFINITIONS AND SECTIONS
FROM THE 1994 9 3/4% NOTE 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 1994 9 3/4% Notes.
"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 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 1994 9 3/4% Note 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
A-1
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, 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.
"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.
A-2
"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 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
A-3
(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 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 1994 9 3/4% Notes under the
circumstances PROVIDED in Article 3 and in Sections 11.2 and 4.14 of this
Indenture.
"1994 9 3/4% NOTE ASSET SALE OFFER" means an offer to purchase the 1994
9 3/4% Notes in accordance with the following procedures:
(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 1994 9 3/4% Notes) 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
A-4
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 Indebtedness 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
$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
A-5
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 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 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 Sec-
A-6
tion 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 1994
9 3/4% Notes 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 1994 9 3/4% Notes (if any) to be redeemed in an
Asset Sale Redemption 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.
A-7
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 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 1994 9 3/4% Notes 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 1994 9 3/4% Notes 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 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
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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 1994 9 3/4% Note Asset Sale Offer;
and (b) any interest, penalties, fees, indemnifications, reimbursements, damages
and other similar charges (including, but not limited to, all fees and expenses
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 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
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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 1994 9 3/4% Notes 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 thereunder), in each case prior to the final stated maturity
of the 1994 9 3/4% Notes 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 1994 9 3/4% Notes, 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 1994 9 3/4% Note 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' 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.
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"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 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
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Incurred, other than the 1994 9 3/4% Notes; 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 1994 9 3/4% Notes 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 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 1994 9 3/4%
Notes, (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.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Citicasters which is
subordinated or junior in right of payment to the 1994 9 3/4% Notes.
"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.
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"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.
"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.
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.1. NOTICES TO TRUSTEE.
If Citicasters elects to redeem 1994 9 3/4% Notes 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 1994 9 3/4% Notes pursuant to Section 3.7, the
date notice of redemption is to be mailed to Holders, the Redemption Date, the
aggregate principal amount of 1994 9 3/4% Notes to be redeemed, the Redemption
Price for such 1994 9 3/4% Notes, the amount of accrued and unpaid interest on
such 1994 9 3/4% Notes as of the Redemption Date and the manner in which 1994
9 3/4% Notes are to be selected for redemption if less than all outstanding 1994
9 3/4% Notes 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 1994 9 3/4% Notes held by each Holder.
If Citicasters is required to offer to purchase 1994 9 3/4% Notes
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 1994 9 3/4% Notes Citicasters is offering to purchase
pursuant to the Offer, the purchase price for such 1994 9 3/4% Notes, and the
amount of accrued and unpaid interest on such 1994 9 3/4% Notes as of the
Purchase Date.
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Citicasters will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
SECTION 3.2. SELECTION OF 1994 9 3/4% NOTES TO BE REDEEMED OR
PURCHASED.
If less than all outstanding 1994 9 3/4% Notes are to be redeemed or
if less than all 1994 9 3/4% Notes tendered pursuant to an Offer are to be
accepted for payment, Citicasters shall select the outstanding 1994 9 3/4%
Notes to be redeemed or accepted for payment in compliance with the
requirements of the principal national securities exchange, if any, on which
the 1994 9 3/4% Notes are listed or, if the 1994 9 3/4% Notes 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 1994 9 3/4% Notes 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 1994 9 3/4% Notes and the ratio of the
outstanding principal amount of Additional 1994 9 3/4% Notes, respectively,
to the sum of the outstanding principal amount of the Initial 1994 9 3/4%
Notes and Additional 1994 9 3/4% Notes 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 1994 9 3/4% Notes to be
redeemed from 1994 9 3/4% Notes outstanding not previously called for
redemption, and (ii) promptly notify Citicasters of the names of each Holder
of 1994 9 3/4% Notes selected for redemption, the principal amount of 1994
9 3/4% Notes held by each such Holder and the principal amount of such Holder's
1994 9 3/4% Notes that are to be redeemed. If less than all 1994 9 3/4%
Notes tendered pursuant to an Offer are to be accepted for payment, the
Trustee shall select on or prior to the Purchase Date for such Offer the 1994
9 3/4% Notes to be accepted for payment; PROVIDED, HOWEVER, that if any
Additional 1994 9 3/4% Notes 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 1994 9 3/4% Notes and the ratio of the
outstanding principal amount of Additional 1994 9 3/4% Notes, respectively,
to the sum of the outstanding principal amount of the Initial 1994 9 3/4%
Notes and Additional 1994 9 3/4% Notes prior to such selection is equal to
such ratios after such selection. The Trustee shall select for redemption or
purchase 1994 9 3/4% Notes or portions of 1994 9 3/4% Notes in principal
amounts of $1,000 or integral multiples of $1,000; except that if all of the
1994 9 3/4% Notes of a Holder are selected for redemption or purchase, the
aggregate principal amount of the 1994 9 3/4% Notes held by such Holder, even
if not a multiple of $1,000, may be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply
to 1994 9 3/4% Notes called for redemption or tendered pursuant to an Offer
also apply to portions of 1994 9 3/4% Notes called for redemption or tendered
pursuant to an Offer.
SECTION 3.3. 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 1994 9 3/4%
Notes or portions thereof that are to be redeemed. With respect to any
redemption of 1994 9 3/4% Notes, the notice shall identify the 1994 9 3/4% Notes
or portions
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thereof to be redeemed and shall state: (1) the Redemption Date; (2) the
Redemption Price for the 1994 9 3/4% Notes and the amount of unpaid and
accrued interest on such 1994 9 3/4% Notes 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 1994 9 3/4% Notes in principal amount equal to
the unredeemed portion will be issued; (4) the name and address of the Paying
Agent; (5) that 1994 9 3/4% Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price for, and any accrued and
unpaid interest on, such 1994 9 3/4% Notes; (6) that, unless Citicasters
defaults in making such redemption payment, interest on 1994 9 3/4% Notes
called for redemption ceases to accrue on and after the Redemption Date and
the only remaining right of the Holders of such 1994 9 3/4% Notes is to
receive payment of the Redemption Price upon surrender to the Paying Agent of
the 1994 9 3/4% Notes redeemed; and (7) if fewer than all the 1994 9 3/4%
Notes are to be redeemed, the identification of the particular 1994 9 3/4%
Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of 1994 9 3/4% Notes to be redeemed and the aggregate principal amount
of 1994 9 3/4% Notes to be outstanding after such partial redemption.
(b) At Citicasters' request, the Trustee shall (at
Citicasters' 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 1994 9 3/4% Notes 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 Trustee may rely) setting forth the
name of, the address of, and the aggregate principal amount of 1994 9 3/4%
Notes held by, each Holder; PROVIDED FURTHER that any such Officers'
Certificate may be delivered to the Trustee on a date later than permitted
under this Section 3.3(b) if such later date is acceptable to the Trustee.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed to the Holders, 1994 9 3/4% Notes
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 1994
9 3/4% Notes called for redemption shall be paid at the Redemption Price.
SECTION 3.5. 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 1994 9 3/4% Notes 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
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the Paying Agent in excess of the amounts necessary to pay the Redemption Price
of, and accrued interest on, all 1994 9 3/4% Notes to be redeemed.
(b) If Citicasters complies with the preceding paragraph,
unless Citicasters defaults in the payment of such Redemption Price interest
on the 1994 9 3/4% Notes to be redeemed will cease to accrue on such 1994 9
3/4% Notes on the applicable Redemption Date, whether or not such 1994 9 3/4%
Notes are presented for payment. If a Note is redeemed on or after an
interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business 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 1994 9 3/4% Notes
and Section 4.1.
SECTION 3.6. 1994 9 3/4% NOTES 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' expense a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) Except as otherwise provided in this Section 3.7 or in
paragraph (b) of the 1994 9 3/4% Note Asset Sale Offer with respect to the New
World Station Sale, the 1994 9 3/4% Notes may not be redeemed at the option of
Citicasters prior to February 15, 1999. Thereafter, the 1994 9 3/4% Notes 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
1994 9 3/4% Notes) 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%
Notwithstanding the foregoing, up to 25% in aggregate principal amount
of 1994 9 3/4% Notes 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
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any simultaneous redemptions pursuant to Section 3.7(b) or Section 3.7(c), at
least $75,000,000 in principal amount of Initial 1994 9 3/4% Notes will remain
outstanding.
(b) Prior to February 15, 1999, the 1994 9 3/4% Notes 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 1994 9 3/4% Notes will remain outstanding,
unless such Change of Control Redemption is for all outstanding 1994 9 3/4%
Notes.
(c) Prior to December 31, 1996 the 1994 9 3/4% Notes 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 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 1994 9 3/4% Notes 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 1994 9 3/4% Note 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
1994 9 3/4% Notes will remain outstanding. In the event of an Asset Sale
Redemption, the 1994 9 3/4% Notes will be redeemable at the Redemption Prices
(expressed as percentages of the principal amount of the 1994 9 3/4% Notes) 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 3.8. 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
1994 9 3/4% Notes 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 1994 9 3/4% Note Asset Sale Offer, as
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the case may be, the length of time the Offer shall remain open, and the
maximum aggregate principal amount of 1994 9 3/4% Notes that Citicasters is
required to purchase pursuant to such Offer (2) the purchase price for the
1994 9 3/4% Notes, the amount of accrued and unpaid interest on such 1994 9
3/4% Notes 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 1994 9 3/4% Notes accepted for payment, interest
shall cease to accrue on such 1994 9 3/4% Notes 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 1994 9
3/4% Notes 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 1994 9 3/4% Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Note purchased; (7)
that Holders whose 1994 9 3/4% Notes are accepted for payment in part will be
issued new 1994 9 3/4% Notes equal in principal amount to the unpurchased
portion of 1994 9 3/4% Notes surrendered, PROVIDED that only 1994 9 3/4%
Notes 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.
(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 1994 9
3/4% Notes 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 1994 9 3/4% Notes 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 1994 9 3/4% Notes 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
1994 9 3/4% Notes or portions thereof accepted for payment and any accrued
and unpaid interest on such 1994 9 3/4% Notes as of the Purchase Date, and
(iii) deliver, or cause to be delivered, to the Trustee all 1994 9 3/4% Notes
tendered pursuant to the Offer, together with an Officers' Certificate
setting forth the name of each Holder of the tendered 1994 9 3/4% Notes and
the principal amount of the 1994 9 3/4% Notes or portions thereof tendered by
each such Holder. For purposes of this Section 3.8, the Trustee shall act as
the Paying Agent.
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(d) With respect to any Offer, (i) if less than all of the
1994 9 3/4% Notes 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 1994 9 3/4% Notes or portions
thereof to be accepted for payment pursuant to Section 3.2; PROVIDED,
HOWEVER, that if any Additional 1994 9 3/4% Notes 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 1994 9 3/4% Notes and the
ratio of the outstanding principal amount of Additional 1994 9 3/4% Notes,
respectively, to the sum of the outstanding principal amount of the Initial
1994 9 3/4% Notes and Additional 1994 9 3/4% Notes 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 1994 9 3/4% Notes accepted for payment, interest shall cease
to accrue on such 1994 9 3/4% Notes on the Purchase Date; PROVIDED, HOWEVER,
that if Citicasters fails to deposit an amount sufficient to purchase all
1994 9 3/4% Notes -accepted for payment, the deposited funds shall be used to
purchase on a pro rata basis all 1994 9 3/4% Notes accepted for payment and
interest shall continue to accrue on all 1994 9 3/4% Notes 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 1994 9 3/4% Notes or portions thereof accepted for payment
an amount equal to the purchase price for, plus any accrued and unpaid
interest on, such 1994 9 3/4% Notes, (ii) with respect to any tendered Note
not accepted for payment in whole or in part, the Trustee shall return such
Note to the Holder thereof, and (iii) with respect to any Note accepted for
payment in part, the Trustee shall authenticate and mail to each such Holder
a new Note equal in principal amount to the unpurchased portion of the
tendered Note.
(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.
ARTICLE IV
SELECTED COVENANTS
* * *
SECTION 4.5. 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
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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 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 1994 9 3/4% Notes under the
circumstances provided in Article 3 and pursuant to a Change of Control Offer
and a 1994 9 3/4% Note Asset Sale Offer.
* * *
SECTION 4.7. 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 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
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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 1994 9 3/4%
Notes;
(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 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
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refunded; (3) not permit redemption 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 1994 9 3/4%
Notes 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).
* * *
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. 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 1994
9 3/4% Notes (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 1994 9 3/4% Notes
(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 1994 9 3/4% Notes to comply with any other provisions of this
Indenture or any 1994 9 3/4% Notes; (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
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(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 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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