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Exhibit 4.3
_____________________________________________________________________
INDENTURE
Dated as of March 15, 1997
among
SPANISH BROADCASTING SYSTEM, INC.,
as Issuer,
SPANISH BROADCASTING SYSTEM, INC.
(a New Jersey corporation),
SPANISH BROADCASTING SYSTEM OF CALIFORNIA, INC.,
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.,
SPANISH BROADCASTING SYSTEM NETWORK, INC.,
SBS PROMOTIONS, INC.,
ALARCON HOLDINGS, INC. and
SBS OF GREATER NEW YORK, INC.,
as Guarantors,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
________________
$413,930,000
14 1/4% Exchange Debentures due 2005
_____________________________________________________________________
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1)........................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10
(b)............................................. 7.08; 7.10
(c)............................................. N.A.
311(a).............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a).............................................. 2.05
(b)............................................. 11.03
(c)............................................. 11.03
313(a).............................................. 7.06
(b)(1).......................................... 7.06
(b)(2).......................................... 7.06; 7.07
(c)............................................. 7.05; 7.06;
11.02
(d)............................................. 7.06
314(a).............................................. 4.08; 4.10;
11.02
(b)............................................. N.A.
(c)(1).......................................... 4.08; 11.04
(c)(2).......................................... 11.04
(c)(3).......................................... 4.08; 11.04
(d)............................................. N.A.
(e)............................................. 11.05
(f)............................................. N.A.
315(a).............................................. 7.01(b)
(b)............................................. 7.05; 11.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
316(a)(last sentence)............................... 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07; 9.04
(c)............................................. 9.04
317(a)(1)........................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318(a).............................................. 11.01
(c)............................................. 11.01
______________________
"N.A." means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions...................................... 1
Section 1.02 Incorporation by Reference of TIA................ 24
Section 1.03 Rules of Construction............................ 25
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating.................................. 25
Section 2.02 Execution and Authentication..................... 26
Section 2.03 Registrar and Paying Agent....................... 27
Section 2.04 Paying Agent To Hold Assets in
Trust......................................... 27
Section 2.05 Securityholder Lists............................. 28
Section 2.06 Transfer and Exchange............................ 28
Section 2.07 Replacement Securities........................... 29
Section 2.08 Outstanding Securities........................... 29
Section 2.09 Treasury Securities.............................. 29
Section 2.10 Temporary Securities............................. 30
Section 2.11 Cancellation..................................... 30
Section 2.12 Defaulted Interest............................... 31
Section 2.13 CUSIP Number..................................... 31
Section 2.14 Deposit of Moneys................................ 31
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee............................... 32
Section 3.02 Selection of Securities To Be
Redeemed...................................... 32
Section 3.03 Notice of Redemption............................. 33
Section 3.04 Effect of Notice of Redemption................... 34
Section 3.05 Deposit of Redemption Price...................... 34
Section 3.06 Securities Redeemed in Part...................... 34
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities............................ 34
Section 4.02 Maintenance of Office or Agency.................. 35
Section 4.03 Limitation on Additional
Indebtedness.................................. 35
Section 4.04 Limitation on Restricted Payments................ 36
Section 4.05 Corporate Existence.............................. 38
Section 4.06 Payment of Taxes and Other Claims................ 39
Section 4.07 Maintenance of Properties and
Insurance..................................... 39
Section 4.08 Compliance Certificate; Notice of
Default....................................... 40
Section 4.09 Compliance with Laws............................. 41
Section 4.10 SEC Reports...................................... 41
Section 4.11 Waiver of Stay, Extension or Usury
Laws.......................................... 42
Section 4.12 Limitation on Certain Asset Sales................ 42
Section 4.13 Limitation on Investments........................ 45
Section 4.14 Limitation on Preferred Stock of
Restricted Subsidiaries....................... 46
Section 4.15 Limitation on Liens.............................. 46
Section 4.16 Limitation on Other Senior
Subordinated Debt............................. 46
Section 4.17 Sale of AM Stations.............................. 47
Section 4.18 Limitations on Transactions with
Affiliates.................................... 49
Section 4.19 Limitation on Creation of
Subsidiaries.................................. 50
Section 4.20 Limitation on Capital Stock of
Restricted Subsidiaries....................... 51
Section 4.21 Lines of Business................................ 51
Section 4.22 Payments for Consent............................. 51
Section 4.23 Limitation on Sale and Lease-Back
Transactions.................................. 52
Section 4.24 Change of Control................................ 52
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Mergers, Consolidations and Sales
of Assets..................................... 55
Section 5.02 Successor Corporation Substituted................ 57
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default................................ 58
Section 6.02 Acceleration..................................... 60
Section 6.03 Other Remedies................................... 61
Section 6.04 Waiver of Past Defaults.......................... 61
Section 6.05 Control by Majority.............................. 62
Section 6.06 Limitation on Suits.............................. 62
Section 6.07 Rights of Holders To Receive
Payment....................................... 63
Section 6.08 Collection Suit by Trustee....................... 63
Section 6.09 Trustee May File Proofs of Claim................. 63
Section 6.10 Priorities....................................... 64
Section 6.11 Undertaking for Costs............................ 65
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee................................ 65
Section 7.02 Rights of Trustee................................ 67
Section 7.03 Individual Rights of Trustee..................... 68
Section 7.04 Trustee's Disclaimer............................. 68
Section 7.05 Notice of Default................................ 68
Section 7.06 Reports by Trustee to Holders.................... 69
Section 7.07 Compensation and Indemnity....................... 69
Section 7.08 Replacement of Trustee........................... 70
Section 7.09 Successor Trustee by Merger, Etc................. 72
Section 7.10 Eligibility; Disqualification.................... 72
Section 7.11 Preferential Collection of Claims
Against Company............................... 72
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Legal Defeasance and Covenant
Defeasance.................................... 73
Section 8.02 Satisfaction and Discharge....................... 77
Section 8.03 Survival of Certain Obligations.................. 77
Section 8.04 Acknowledgment of Discharge by
Trustee....................................... 78
Section 8.05 Application of Trust Assets...................... 78
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Section 8.06 Repayment to the Company or
Guarantors; Unclaimed Money................... 78
Section 8.07 Reinstatement.................................... 79
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders....................... 80
Section 9.02 With Consent of Holders.......................... 80
Section 9.03 Compliance with TIA.............................. 82
Section 9.04 Revocation and Effect of Consents................ 82
Section 9.05 Notation on or Exchange of
Securities.................................... 83
Section 9.06 Trustee To Sign Amendments, Etc.................. 83
ARTICLE TEN
GUARANTEES
Section 10.01 Unconditional Guarantee.......................... 84
Section 10.02 Severability..................................... 85
Section 10.03 Release of a Guarantor........................... 85
Section 10.04 Limitation of a Guarantor's
Liability..................................... 86
Section 10.05 Contribution..................................... 86
Section 10.06 Waiver of Subrogation............................ 86
Section 10.07 Execution of Guarantees.......................... 87
Section 10.08 Waiver of Stay, Extension or Usury
Laws.......................................... 88
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls..................................... 88
Section 11.02 Notices.......................................... 88
Section 11.03 Communications by Holders with
Other Holders................................. 89
Section 11.04 Certificate and Opinion as to
Conditions Precedent.......................... 90
Section 11.05 Statements Required in Certificate
or Opinion.................................... 90
Section 11.06 Rules by Trustee, Paying Agent,
Registrar..................................... 91
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Section 11.07 Legal Holidays................................... 91
Section 11.08 Governing Law.................................... 91
Section 11.09 No Adverse Interpretation of Other
Agreements.................................... 91
Section 11.10 No Recourse Against Others....................... 91
Section 11.11 Successors....................................... 91
Section 11.12 Duplicate Originals.............................. 92
Section 11.13 Severability..................................... 92
ARTICLE TWELVE
SUBORDINATION
Section 12.01 Securities Subordinated to Senior
Debt; Guarantees Subordinated to
Guarantor Senior Debt......................... 92
Section 12.02 No Payment on Securities in
Certain Circumstances......................... 93
Section 12.03 Payment Over of Proceeds upon
Dissolution, Etc.............................. 95
Section 12.04 Payments May Be Paid Prior to
Dissolution................................... 97
Section 12.05 Subrogation...................................... 97
Section 12.06 Obligations of the Company
Unconditional................................. 98
Section 12.07 Notice to Trustee................................ 98
Section 12.08 Reliance on Judicial Order or
Certificate of Liquidating Agent.............. 99
Section 12.09 Trustee's Relation to Senior Debt
or Guarantor Senior Debt...................... 99
Section 12.10 Subordination Rights Not Impaired
by Acts or Omissions of the
Company or a Guarantor or
Holders of Senior Debt........................ 100
Section 12.11 Holders Authorize Trustee To
Effectuate Subordination of
Securities.................................... 101
Section 12.12 This Article Twelve Not To Prevent
Events of Default............................. 101
Section 12.13 Trustee's Compensation Not
Prejudiced.................................... 102
Signatures........................................................... 103
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Exhibit A - Form of Exchange Debenture
Exhibit B - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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INDENTURE dated as of March 15, 1997, among SPANISH
BROADCASTING SYSTEM, INC., a Delaware corporation (the
"Company"), as Issuer, SPANISH BROADCASTING SYSTEM, INC., a New
Jersey corporation, SPANISH BROADCASTING SYSTEM OF CALIFORNIA,
INC., a California corporation, SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC., a Florida corporation, SPANISH BROADCASTING
SYSTEM NETWORK, INC., a New York corporation, SBS PROMOTIONS,
INC., a New York corporation, ALARCON HOLDINGS, INC., a New
York corporation, and SBS OF GREATER NEW YORK, INC., a New York
corporation, as Guarantors, and UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee (the "Trustee").
Each party hereto agrees as follows for the benefit
of each other party and for the equal and ratable benefit of
the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a
Person (including an Unrestricted Subsidiary) existing at the
time such Person becomes a Restricted Subsidiary or assumed in
connection with the acquisition of assets from such Person.
"Acquisition Indebtedness" means Indebtedness
incurred by the Company or by a Restricted Subsidiary the
proceeds of which are used for the acquisition of a media
business and related facilities and assets or for the
construction of a facility pursuant to a construction permit
issued by the FCC.
"Adjusted Net Assets" of a Guarantor at any date
shall mean the lesser of the amount by which (x) the fair value
of the property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the
Guarantee, of such Guarantor at such date and (y) the present
fair ratable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect
to all other fixed and contingent liabilities and after giving
effect to any collection from any Subsidiary of such Guarantor
in respect of
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the obligations of such Subsidiary under the
Guarantee), excluding Indebtedness in respect of the Guarantee,
as they become absolute and matured.
"Affiliate" of any specified Person means any other
Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under
common control with, such specified Person. For the purposes
of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by," and "under
common control with"), as used with respect to any Person,
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; provided that
(a) beneficial ownership of at least 10% of the voting
securities of a Person shall be deemed to be control and
(b) for purposes of Section 4.18, for so long as Raul Alarcon
Sr., Raul Alarcon Jr. or Jose Grimalt are directors, officers
or shareholders of the Company, they, their respective spouses,
lineal descendants and any Person controlled by any of them
shall be Affiliates of the Company and its Subsidiaries.
"Affiliate Transaction" has the meaning provided in
Section 4.18.
"Agent" means any Registrar or Paying Agent.
"AM Stations Asset Sale Date" means April 1, 1998;
provided that if, on April 1, 1998, the Company shall have
entered into a legally binding sale agreement or agreements for
the sale of the FCC broadcast licenses of WXLX-AM, KXMG-AM and
WCMQ-AM, and the only condition to the closing of such Asset
Sales is the granting by the FCC of final approval of the
transfer of such licenses, the AM Stations Asset Sale Date
shall be the earlier of (a) the 60th day after the FCC approves
the transfer of such license or (b) the day the FCC denies
approval of any such transfer or any such sale agreement shall
have been terminated or ceased to be a legally binding
agreement of the parties thereto.
"Asset Sale" means the sale, transfer or other
disposition (other than to the Company or any of its Restricted
Subsidiaries) in any single transaction or series of
transactions of (a) any Capital Stock of or other equity
interest in any Restricted Subsidiary of the Company, (b) all
or substantially all of the assets of the Company or of any
Restricted
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Subsidiary thereof, or (c) all or substantially all
of the assets of any radio station, or part thereof, owned by
the Company or any Restricted Subsidiary thereof, or a
division, line of business or comparable business segment of
the Company or any Restricted Subsidiary thereof; provided that
Asset Sales shall not include sales, leases, conveyances,
transfers or other dispositions to the Company or to a
Restricted Subsidiary or to any other Person if after giving
effect to such sale, lease, conveyance, transfer or other
disposition such other Person becomes a Restricted Subsidiary.
"Asset Sale Proceeds" means, with respect to any
Asset Sale, (i) cash received by the Company or any Restricted
Subsidiary of the Company from such Asset Sale (including cash
received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset
Sale), after (a) provision for all income or other taxes
measured by or resulting from such Asset Sale, (b) payment of
all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary of the Company as
a result of such Asset Sale and (d) deduction of appropriate
amounts to be provided by the Company or any such Restricted
Subsidiary as a reserve, in accordance with GAAP, against any
liabilities associated with the assets sold or disposed of in
such Asset Sale and retained by the Company or any such
Restricted Subsidiary after such Asset Sale, including, without
limitation, pension and other post employment benefit
liabilities and liabilities related to environmental matters or
against any indemnification obligations associated with the
assets sold or disposed of in such Asset Sale, and
(ii) promissory notes and other noncash consideration received
by the Company or any such Restricted Subsidiary from such
Asset Sale or other disposition upon the liquidation or
conversion of such notes or noncash consideration into cash.
"Attributable Debt" in respect of a Sale and Lease-
Back Transaction means, as at the time of determination, the
greater of (i) the fair value of the property subject to such
arrangement (as determined by the Board of Directors of the
Company) and (ii) the present value (discounted at the interest
rate implicit in such transaction) of the total obligations of
the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
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"Available Asset Sale Proceeds" means, with respect
to any Asset Sale, the aggregate Asset Sale Proceeds from such
Asset Sales that have not been applied in accordance with
clauses (iii)(a) or (iii)(b), and that have not been the basis
for an Excess Proceeds Offer in accordance with clause (iii)(b)
of the first paragraph of Section 4.12.
"Bank Indebtedness" means (i) Indebtedness of the
Company incurred in accordance with this Indenture owing to one
or more commercial banking institutions that are members of the
Federal Reserve System and (ii) any guarantee by a Guarantor of
any Indebtedness of the Company of the type set forth in
clause (i) of this definition.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of
debtors.
"Board of Directors" means, as to any Person, the
Board of Directors of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person,
a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly adopted by
the Board of Directors of such Person and to be in full force
and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means any day other than a Saturday,
Sunday or any other day on which banking institutions in the
City of New York are required or authorized by law or other
governmental action to be closed.
"Capital Stock" means, with respect to any Person,
any and all shares or other equivalents (however designated) of
capital stock, partnership interests or any other
participation, right or other interest in the nature of an
equity interest in such Person or any option, warrant or other
security convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness
represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with
GAAP, and the amount of such Indebtedness shall be the
capitalized amount of such obligations determined in accordance
with GAAP.
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"Certificate of Designation" means the Certificate of
Designation creating the Senior Preferred Stock, as in effect
on the Issue Date, and any certificate of designation creating
Exchange Preferred Stock (as defined in such Certificate of
Designation) and Private Exchange Preferred Stock (as defined
in such Certificate of Designation).
A "Change of Control" of the Company will be deemed
to have occurred at such time as (i) any Person (including a
Person's Affiliates and associates), other than a Permitted
Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of 50% or more of the total voting
power of the Company's Common Stock, (ii) prior to a Public
Equity Offering, Permitted Holders shall cease to own
beneficially at least 40% of the total voting power of the
Company's Common Stock, (iii) any Person (including a Person's
Affiliates and associates), other than a Permitted Holder,
becomes the beneficial owner of more than 30% of the total
voting power of the Company's Common Stock, and the Permitted
Holders beneficially own, in the aggregate, a lesser percentage
of the total voting power of the Common Stock of the Company
than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company,
(iv) there shall be consummated any consolidation or merger of
the Company in which the Company is not the continuing or
surviving corporation or pursuant to which the Common Stock of
the Company would be converted into cash, securities or other
property, other than a merger or consolidation of the Company
in which the holders of the Common Stock of the Company
outstanding immediately prior to the consolidation or merger
hold, directly or indirectly, at least a majority of the Common
Stock of the surviving corporation immediately after such
consolidation or merger, or (v) during any period of two
consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board
of Directors or whose nomination for election by the
shareholders of the Company has been approved by 66 2/3% of the
directors then still in office who either were directors at the
beginning of such period or whose election or recommendation
for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company.
"Change of Control Offer" has the meaning provided in
Section 4.24.
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"Change of Control Payment Date" has the meaning
provided in Section 4.24.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" of any Person means all Capital Stock
of such Person that is generally entitled to (i) vote in the
election of directors of such Person or (ii) if such Person is
not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in the
preamble to this Indenture until a successor replaces it
pursuant to this Indenture and thereafter means such successor.
"Company Request" means any written request signed in
the name of the Company by any two of the following: the Chief
Executive Officer, Chief Operating Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer, the
Secretary, any Assistant Treasurer or Assistant Secretary, but
not both of the Secretary and any Assistant Secretary of the
Company.
"Consolidated Interest Expense" means, with respect
to any Person, for any period, the aggregate amount of interest
which, in conformity with GAAP, would be set forth opposite the
caption "interest expense" or any like caption on an income
statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, cash
dividends paid on Preferred Stock, imputed interest included in
Capitalized Lease Obligations, all commissions, discounts and
other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, the net costs associated
with hedging obligations, amortization of other financing fees
and expenses, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and
all other non-cash interest expense (other than interest
amortized to cost of sales)) plus, without duplication, all net
capitalized interest for such period and all interest incurred
or paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of
any Person, plus the amount of all dividends or distributions
paid on Disqualified Capital Stock (other than dividends paid
or payable in shares of Capital Stock of the Company).
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"Consolidated Net Income" means, with respect to any
Person, for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided, however,
that (a) the Net Income of any Person (the "other Person") in
which the Person in question or any of its Subsidiaries has
less than a 100% interest (which interest does not cause the
net income of such other Person to be consolidated into the net
income of the Person in question in accordance with GAAP) shall
be included only to the extent of the amount of dividends or
distributions paid to the Person in question or the Subsidiary,
(b) the Net Income of any Subsidiary of the Person in question
that is subject to any restriction or limitation on the payment
of dividends or the making of other distributions (other than
pursuant to the Securities or this Indenture) shall be excluded
to the extent of such restriction or limitation, (c) (i) the
Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such
acquisition and (ii) any net gain (but not loss) resulting from
an Asset Sale by the Person in question or any of its
Subsidiaries other than in the ordinary course of business
shall be excluded, and (d) extraordinary gains and losses shall
be excluded.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution of this Indenture is located at 114 West 47th
Street, New York, New York 10036, Attention: Corporate Trust
and Agency Division.
"Covenant Defeasance" has the meaning provided in
Section 8.01.
"Credit Facility" means Indebtedness of the Company
and its Restricted Subsidiaries under a revolving credit
facility in an aggregate principal amount not to exceed the
greater of (a) $10,000,000 or (b) 75% of the net book value of
the Company's accounts receivable.
"Current Market Value" of a Contingent Class A Share
as of any date means the value thereof as determined by a
nationally recognized investment bank and set forth in a
written opinion of such investment bank mailed to each Holder
with the notice of redemption, notice of Change of Control
Offer, notice of Excess Proceeds Offer or on the Final Maturity
Date, as the case may be.
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"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any
Bankruptcy Law.
"Default" means an event or condition the occurrence
of which is, or with the lapse of time or the giving of notice
or both would be, an Event of Default.
"Designated Senior Debt" means any Indebtedness
constituting Senior Debt or Guarantor Senior Debt which, at the
time of determination, has an aggregate principal amount of at
least $10,000,000 (or accreted value in the case of
Indebtedness issued at a discount) and is specifically
designated in the instrument evidencing such Senior Debt or
Guarantor Senior Debt as "Designated Senior Debt" by the
Company.
"Disqualified Capital Stock" means any Capital Stock
of the Company or a Restricted Subsidiary thereof which, by its
terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of
the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the maturity date
of the Securities, for cash or securities constituting
Indebtedness. Without limitation of the foregoing,
Disqualified Capital Stock shall be deemed to include (i) any
Preferred Stock of a Restricted Subsidiary of the Company and
(ii) any Preferred Stock of the Company, with respect to either
of which, under the terms of such Preferred Stock, by agreement
or otherwise, such Restricted Subsidiary or the Company is
obligated to pay current dividends or distributions in cash
during the period prior to March 15, 2005; provided, however,
that Preferred Stock of the Company or any Restricted
Subsidiary thereof that is issued with the benefit of
provisions requiring a change of control offer to be made for
such Preferred Stock in the event of a change of control of the
Company or such Restricted Subsidiary, which provisions have
substantially the same effect as the provisions of
Section 4.24, shall not be deemed to be Disqualified Capital
Stock solely by virtue of such provisions; and provided,
further, that the Senior Preferred Stock shall be deemed not to
be Disqualified Capital Stock.
"EBITDA" means, for any Person, for any period, an
amount equal to (a) the sum of (i) Consolidated Net Income for
such period, plus (ii) the provision for taxes for such period
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based on income or profits to the extent such income or profits
were included in computing Consolidated Net Income and any
provision for taxes utilized in computing net loss under
clause (i) hereof, plus (iii) Consolidated Interest Expense for
such Period (but only including Redeemable Dividends in the
calculation of such Consolidated Interest Expense to the extent
that such Redeemable Dividends have not been excluded in the
calculation of Consolidated Net Income), plus (iv) depreciation
for such period on a consolidated basis, plus (v) amortization
of intangibles for such period on a consolidated basis, plus
(vi) any other non-cash items reducing Consolidated Net Income
for such period, minus (b) all non-cash items increasing
Consolidated Net Income for such period, all for such Person
and its Subsidiaries determined in accordance with GAAP, except
that with respect to the Company each of the foregoing items
shall be determined on a consolidated basis with respect to the
Company and its Restricted Subsidiaries only, provided,
however, that, for purposes of calculating EBITDA during any
fiscal quarter, cash income from a particular Investment of
such Person shall be included only (x) if cash income has been
received by such Person with respect to such Investment during
each of the previous four fiscal quarters, or (y) if the cash
income derived from such Investment is attributable to
Temporary Cash Investments.
"Event of Default" has the meaning provided in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor statute or statutes thereto.
"fair market value" means, with respect to any asset
or property, the price which could be negotiated in an arm's-
length, free market transaction, for cash, between a willing
seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair
market value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Company delivered to the
Trustee.
"FCC" means the Federal Communications Commission.
"Final Maturity Date" means March 15, 2005
"Fully Diluted Basis" means, as of any date of
determination, in determining the number of shares of Common
Stock
18
-10-
deemed to be outstanding as of such date, the sum of
(i) the number of shares of Class A Common Stock outstanding as
of such date, (ii) the number of shares of Class A Common Stock
into which the outstanding shares of Class B Common Stock
outstanding as of such date may be converted and (iii) the
number of shares of Class A Common Stock and Class B Common
Stock (assuming conversion of such shares of Class B Common
Stock into shares of Class A Common Stock) into or for which
rights, options, warrants or other securities outstanding as of
such date are exercisable or convertible, after giving effect
to any anti-dilution adjustment pursuant to any agreement
governing any such right, option, warrant or security relating
to any issuance of Class A Common Stock pursuant to Section
4.17 hereof on such date.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the
accounting profession of the United States, which are in effect
as of the Issue Date.
"Guarantee" has the meaning provided in Section 4.19.
"Guarantor" means (i) each of Spanish Broadcasting
System, Inc., a New Jersey corporation, Spanish Broadcasting
System Of California, Inc., a California corporation, Spanish
Broadcasting System Of Florida, Inc., a Florida corporation,
Spanish Broadcasting System Network, Inc., a New York
corporation, SBS Promotions, Inc., a New York corporation,
Alarcon Holdings, Inc., a New York corporation, and SBS of
Greater New York, Inc., a New York corporation, and (ii) each
Person that in the future executes a Guarantee pursuant to
Section 4.19 or otherwise; provided that any Person
constituting a Guarantor as described above shall cease to
constitute a Guarantor when its Guarantee is released in
accordance with the terms of this Indenture.
"Guarantor Senior Debt" of any Guarantor means, the
principal of and premium, if any, and interest (including,
without limitation, interest accruing or that would have
accrued but for the filing of a bankruptcy, reorganization or
other insolvency proceeding whether or not such interest
constitutes an allowed claim in such proceeding) on, and any
and all other fees, expense reimbursement obligations,
indemnities
19
-11-
and other amounts due pursuant to their terms of all agreements,
documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all
obligations of such Guarantor with respect to any Interest Rate
Agreement, (b) all obligations of such Person to reimburse any
bank or other Person in respect of amounts paid under letters of
credit, acceptances or other similar instruments, (c) all other
Indebtedness of such Guarantor which does not provide that it is
to rank pari passu with or subordinate to the Guarantee of such
Guarantor and (d) all deferrals, renewals, extensions and refundings
of, and amendments, modifications and supplements to, any of the
Guarantor Senior Debt described above. Notwithstanding anything to
the contrary in the foregoing, Guarantor Senior Debt will not
include (i) Indebtedness of such Guarantor to the Company to any of
its Subsidiaries, (ii) Indebtedness represented by the Guarantees,
(iii) any Indebtedness which by the express terms of the agreement
or instrument creating, evidencing or governing the same is junior
or subordinate in right of payment to any item of Guarantor Senior
Debt, (iv) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business
or (v) Indebtedness incurred in violation of this Indenture.
"Holder" or "Securityholder" means a Person in whose
name a Security is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue, incur (by
conversion, exchange or otherwise), assume, guarantee or
otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on
the balance sheet of such Person (and "incurrence," "incurred,"
"incurrable," and "incurring" shall have meanings correlative
to the foregoing); provided that a change in GAAP that results
in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such
Indebtedness.
"Indebtedness" means (without duplication), with
respect to any Person, any indebtedness at any time
outstanding, secured or unsecured, contingent or otherwise,
which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to
a portion thereof), or evidenced by bonds, notes, debentures or
similar instruments or representing the balance deferred and
20
-12-
unpaid of the purchase price of any property (excluding,
without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the
extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared in
accordance with GAAP, and shall also include, to the extent not
otherwise included (i) any Capitalized Lease Obligations,
(ii) obligations secured by a lien to which the property or
assets owned or held by such Person is subject, whether or not
the obligation or obligations secured thereby shall have been
assumed, (iii) guarantees of items of other Persons which would
be included within this definition for such other Persons
(whether or not such items would appear upon the balance sheet
of the guarantor), (iv) all obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (v) in the case of the Company,
Disqualified Capital Stock of the Company or any Restricted
Subsidiary thereof, and (vi) obligations of any such Person
under any Interest Rate Agreement applicable to any of the
foregoing (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP). The amount of
Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations,
the maximum liability upon the occurrence of the contingency
giving rise to the obligation, provided (i) that the amount
outstanding at any time of any Indebtedness issued with
original issue discount, including the Old Notes, is the
principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for
federal, state, local or other taxes. Notwithstanding any
other provision of the foregoing definition, any trade payable
arising from the purchase of goods or materials or for services
obtained in the ordinary course of business shall not be deemed
to be "Indebtedness" of the Company or any Restricted
Subsidiaries for purposes of this definition. Furthermore,
guarantees of (or obligations with respect to letters of credit
supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture, as amended or
supplemented from time to time in accordance with the terms
hereof.
21
-13-
"Independent" when used with respect to any specified
Person means such a Person who (a) is in fact independent;
(b) does not have any direct financial interest or any material
indirect financial interest in the Company or any of its
Subsidiaries, or in any Affiliate of the Company or any of its
Subsidiaries; and (c) is not an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing
similar functions for the Company or any of its Subsidiaries.
Whenever it is provided in this Indenture that any Independent
Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by the Company, and
such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within
the meaning hereof.
"Independent Financial Advisor" means a firm
(a) which does not, and whose directors, officers and employees
or Affiliates do not, have a direct or indirect financial
interest in the Company and (b) which, in the judgment of the
Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Infinity Note" means the $3,000,000 aggregate
principal amount of Indebtedness issued by the Company to
Infinity Holding Corp. of Orlando on the Issue Date.
"Interest Payment Date" means the stated maturity of
an installment of interest on the Securities.
"Interest Rate Agreement" means, for any Person, any
interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement
designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, directly or indirectly, any
advance, account receivable (other than an account receivable
arising in the ordinary course of business), loan or capital
contribution to (by means of transfers of property to others,
payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes,
debentures, partnership or joint venture interests or other
securities of, the acquisition, by purchase or otherwise, of
all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the
making of any investment in any Person. Investments shall
22
-14-
exclude extensions of trade credit on commercially reasonable
terms in accordance with normal trade practices.
"Issue Date" means the date of original issuance of
the Senior Preferred Stock.
"Legal Defeasance" has the meaning provided in
Section 8.01.
"Lien" means with respect to any property or assets
of any Person, any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including without limitation, any
Capitalized Lease Obligation, conditional sales, or other title
retention, agreement having substantially the same economic
effect as any of the foregoing).
"Net Income" means, with respect to any Person for
any period, the net income (loss) of such Person determined in
accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of
Capital Stock by the Company or any of its Restricted
Subsidiaries, the aggregate net proceeds received by the
Company or such Restricted Subsidiary, after payment of
expenses, commissions and the like incurred in connection
therewith, whether such proceeds are in cash or in property
(valued at the fair market value thereof, as determined in good
faith by the Board of Directors of the Company, at the time of
receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind
for or into shares of Capital Stock of the Company or any of
its Restricted Subsidiaries which is not Disqualified Capital
Stock, the net book value of such outstanding securities on the
date of such exchange, exercise, conversion or surrender (plus
any additional amount required to be paid by the holder to the
Company or such Restricted Subsidiary upon such exchange,
exercise, conversion or surrender, less any and all payments
made to the holders, e.g., on account of fractional shares and
less all expenses incurred by the Company in connection
therewith). For the avoidance of doubt, the issuance of Senior
Preferred Stock as payment of dividends on Senior Preferred
Stock shall be deemed to result in no Net Proceeds received by
the Company from any such issuance.
23
-15-
"Non-Payment Event of Default" means any event (other
than a Payment Default) the occurrence of which entitles one or
more Persons to accelerate the maturity of any Designated
Senior Debt.
"Notes" means the $75,000,000 aggregate principal
amount of 11% Senior Notes issued by the Company on the Issue
Date.
"Obligations" means all obligations for principal,
premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing, or otherwise relating to, any
Indebtedness.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by the Chairman of the Board of
Directors, the President or any Vice President and the
Treasurer or any assistant Treasurer of such Person that shall
comply with applicable provisions of this Indenture.
"Old Notes" means the $107,059,000 aggregate
principal amount of 12>% Senior Notes due 2002 of the Company.
"Old Warrants" means Warrants issued pursuant to the
Warrant Agreement dated as of June 29, 1994 between the Company
and IBJ Schroder Bank & Trust Company, as Warrant Agent.
"Opinion of Counsel" means a written opinion from
legal counsel which and who are acceptable to the Trustee.
"Paying Agent" has the meaning provided in Section
2.03.
"Payment Default" means any default, whether or not
any requirement for the giving of notice, the lapse of time or
both, or any other condition to such default becoming an event
of default has occurred, in the payment of principal of (or
premium, if any) or interest on or any other amount payable in
connection with Designated Senior Debt.
"Permitted Holders" means (i) Raul Alarcon Jr.,
(ii) the heirs, executors, administrators testamentary,
trustees, legatees or beneficiaries of the Person described in
(i) and (iii) a trust, the beneficiaries of which include only
Persons described in (i) and (ii) and their respective spouses
and lineal descendants.
24
-16-
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted
Subsidiary arising under or in connection with the Credit
Facility;
(ii) Indebtedness under the Notes and the guarantees
thereof;
(iii) Indebtedness not covered by any other clause of
this definition which is outstanding on the Issue Date
(including the Old Notes and guarantees thereof and the
Infinity Note);
(iv) Indebtedness of the Company to any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary
to the Company or another Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized
Lease Obligations incurred to acquire property in the
ordinary course of business which Indebtedness and
Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets;
(vi) Refinancing Indebtedness;
(vii) Indebtedness represented by any guarantee by a
Guarantor of Indebtedness of the Company permitted to be
incurred under this Indenture;
(viii) other Indebtedness of the Company not to exceed
$2,000,000 at any one time outstanding; and
(ix) Indebtedness under the Securities and the
Guarantees.
"Permitted Investments" means, for any Person,
Investments made on or after the date of the Issue Date
consisting of
(i) Investments by the Company, or by a Restricted
Subsidiary thereof, in the Company or a Restricted
Subsidiary;
(ii) Temporary Cash Investments;
25
-17-
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such
Investment (a) such Person becomes a Restricted Subsidiary
of the Company or (b) such Person is merged, consolidated
or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary thereof;
(iv) an Investment that is made by the Company or a
Restricted Subsidiary thereof in the form of any stock,
bonds, notes, debentures, partnership or joint venture
interests or other securities that are issued by a third
party to the Company or Restricted Subsidiary solely as
partial consideration for the consummation of an Asset
Sale that is otherwise permitted under Section 4.12;
(v) Investments by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to
the terms of a "local marketing agreement" or similar
arrangement relating to a radio station owned or licensed
by such Person; and
(vi) other Investments not to exceed $3,000,000 at
any one time outstanding.
"Permitted Liens" means (i) Liens on property or
assets of, or any shares of stock of or secured debt of, any
corporation existing at the time such corporation becomes a
Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries; provided that such Liens are not incurred in
connection with, or in contemplation of, such corporation
becoming a Restricted Subsidiary of the Company or merging into
the Company or any of its Restricted Subsidiaries, (ii) Liens
securing Refinancing Indebtedness, provided that any such Lien
does not extend to or cover any Property, shares or debt other
than the Property, shares or debt securing the Indebtedness so
refunded, refinanced or extended, (iii) Liens in favor of the
Company or any of its Restricted Subsidiaries, (iv) Liens
securing industrial revenue bonds, (v) Liens to secure Purchase
Money Indebtedness that is otherwise permitted under this
Indenture, provided that (a) any such Lien is created solely
for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and
other direct costs of, and other direct expenses paid or
charged in connection with, such purchase or construction) of
such Property, (b) the
26
-18-
principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such costs, and (c) such Lien does not
extend to or cover any Property other than such item of Property
and any improvements on such item, (vi) Liens on Capital
Stock of Restricted Subsidiaries and accounts receivable,
the proceeds thereof and related records to secure the
Credit Facility, (vii) statutory liens or landlords',
carriers', warehouseman's, mechanics', suppliers', materialmen's,
repairmen's or other like Liens arising in the ordinary
course of business, which do not secure any Indebtedness
and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings, if
a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have
been made therefor, (viii) Liens securing Bank Indebtedness,
(ix) other Liens securing obligations incurred
in the ordinary course of business which obligations
do not exceed $500,000 in the aggregate at any one time
outstanding, (x) Liens securing Acquisition Indebtedness,
provided that such Liens do not extend to or cover any
Property other than the Property acquired with the
proceeds of such Acquisition Indebtedness and any
improvements thereto, and (xi) any extensions, substitutions,
replacements or renewals of the foregoing, and (xii) Liens on
Property or assets of the Company and its Restricted
Subsidiaries acquired after the Issue Date.
"Person" means an individual, partnership,
corporation, unincorporated organization, trust or joint
venture, or a governmental agency or political subdivision
thereof.
"Preferred Stock" means any Capital Stock of a
Person, however designated, which entitles the holder thereof
to a preference with respect to dividends, distributions or
liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"pro forma" means, with respect to any calculation
made or required to be made pursuant to the terms of this
Indenture, a calculation in accordance with Article 11 of
Regulation S-X under the Securities Act as interpreted by the
Company's Board of Directors in consultation with its
independent certified public accountants.
"Property" of any Person means all types of real,
Personal, tangible, intangible or mixed property owned by such
Person whether or not included in the most recent consolidated
balance sheet of such Person and its Subsidiaries under GAAP.
27
-19-
"Purchase Money Indebtedness" means any Indebtedness
incurred in the ordinary course of business by a Person to
finance the cost (including the cost of construction) of an
item of property, the principal amount of which Indebtedness
does not exceed the sum of (i) 100% of such cost and
(ii) reasonable fees and expenses of such Person incurred in
connection therewith.
"Ratio Indebtedness" means (i) Indebtedness of the
Company incurred pursuant to the first paragraph of Sec-
tion 4.03 which is not Refinancing Indebtedness and (ii) any
guarantee by a Guarantor of any Indebtedness of the Company of
the type set forth in clause (i) of this definition.
"Record Date" means the Record Dates specified in the
Securities.
"Redeemable Dividend" means, for any dividend or
distribution with regard to Disqualified Capital Stock, the
quotient of the dividend or distribution divided by the
difference between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such
redemption pursuant to this Indenture and the Securities.
"Redemption Price," when used with respect to any
Security to be redeemed, means the price fixed for such
redemption, payable in immediately available funds, pursuant to
this Indenture and the Securities.
"Refinancing Indebtedness" means Indebtedness that
refunds, refinances or extends any Indebtedness of the Company
outstanding on the Issue Date or other Indebtedness permitted
to be incurred by the Company or its Restricted Subsidiaries
(other than pursuant to clause (iv) of the definition of
"Permitted Indebtedness") pursuant to the terms of this
Indenture, but only to the extent that (i) the Refinancing
Indebtedness is subordinated to the Securities to at least the
same extent as the Indebtedness being refunded, refinanced or
extended, if at all, (ii) the Refinancing Indebtedness is
scheduled to mature either (a) no earlier than the Indebtedness
being refunded, refinanced or extended, or (b) after the
maturity date of the Securities, (iii) the portion, if any, of
the Refinancing Indebtedness that is scheduled to mature on or
prior to the
28
-20-
maturity date of the Securities has a weighted
average life to maturity at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the
weighted average life to maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the
Securities, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the
sum of (a) the aggregate principal amount then outstanding
under the Indebtedness being refunded, refinanced or extended,
(b) the amount of accrued and unpaid interest, if any, and
premiums owed, if any, not in excess of preexisting prepayment
provisions on such Indebtedness being refunded, refinanced or
extended and (c) the amount of customary fees, expenses and
costs related to the incurrence of such Refinancing
Indebtedness, and (v) such Refinancing Indebtedness is incurred
by the same Person that initially incurred the Indebtedness
being refunded, refinanced or extended, except that the Company
may incur Refinancing Indebtedness to refund, refinance or
extend Indebtedness of any Wholly-Owned Subsidiary of the
Company.
"Registrar" has the meaning provided in Section 2.03.
"Responsible Officer" shall mean, when used with
respect to the Trustee, any officer in the Corporate Trust
Department of the Trustee including any vice president,
assistant vice president, assistant secretary, treasurer,
assistant treasurer, or any other officer of the Trustee who
customarily performs functions similar to those performed by
the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Payment" means any of the following:
(i) the declaration or payment of any dividend or any other
distribution or payment on Capital Stock of the Company or any
Restricted Subsidiary of the Company or any payment made to the
direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Restricted Subsidiary of
the Company (other than (x) dividends or distributions payable
solely in Capital Stock (other than Disqualified Capital Stock)
or in options, warrants or other rights to purchase Capital
Stock (other than Disqualified Capital Stock), and (y) in the
case of Restricted Subsidiaries of the Company, dividends or
distributions payable to the Company or to a Wholly-Owned
Restricted Subsidiary of the Company), (ii) the purchase,
29
-21-
redemption or other acquisition or retirement for value of any
Capital Stock of the Company or any of its Restricted
Subsidiaries (other than (i) Senior Preferred Stock and (ii)
Capital Stock owned by the Company), (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior
to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, of any Indebtedness which is subordinated
in right of payment to the Securities or a Guarantee (other
than any such subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation,
principal installment or final maturity, in each case due
within one year of the date of acquisition), (iv) the making of
any Investment or guarantee of any Investment in any Person
other than a Permitted Investment, (v) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary and
(vi) forgiveness of any Indebtedness of an Affiliate of the
Company to the Company or a Restricted Subsidiary existing on
the Issue Date.
"Restricted Subsidiary" means a Subsidiary of the
Company other than an Unrestricted Subsidiary and includes all
of the Subsidiaries of the Company existing as of the Issue
Date. The Board of Directors of the Company may designate any
Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after
giving effect to such action (and treating any Acquired
Indebtedness as having been incurred at the time of such
action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.03.
"Sale and Leaseback Transaction" means any
arrangement with any Person providing for the leasing by the
Company or any Restricted Subsidiary of the Company of any real
or tangible Personal property, which property has been or is to
be sold or transferred by the Company or such Restricted
Subsidiary to such Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Secondary Securities" has the meaning provided in
the Securities.
"Securities" means the Company's 14 1/4% Exchange
Debentures due 2005, including any Secondary Securities, as
amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to this Indenture.
30
-22-
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"Senior Debt" of the Company means, the principal of
and premium, if any, and interest (including, without
limitation, interest accruing or that would have accrued but
for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes
an allowed claim in such proceeding) on, and any and all other
fees, expense reimbursement obligations, indemnities and other
amounts due pursuant to their terms of all agreements,
documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all
obligations of the Company with respect to any Interest Rate
Agreement, (b) all obligations of the Company to reimburse any
bank or other Person in respect of amounts paid under letters
of credit, acceptances or other similar instruments, (c) all
other Indebtedness of the Company which does not provide that
it is to rank pari passu with or subordinate to the Securities,
and (d) all deferrals, renewals, extensions and refundings of,
and amendments, modifications and supplements to, any of the
Senior Debt described above. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (i)
Indebtedness of the Company to any of its Subsidiaries, (ii)
Indebtedness represented by the Securities, (iii) any
Indebtedness which by the express terms of the agreement or
instrument creating, evidencing or governing the same is junior
or subordinate in right of payment to any item of Senior Debt,
(iv) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of
business or (v) Indebtedness incurred in violation of this
Indenture.
"Senior Preferred Stock" means the 14 1/4% Senior
Exchangeable Preferred Stock of the Company and any Exchange
Preferred Stock and Private Exchange Preferred Stock.
"Subsidiary" of any specified Person means any
corporation, partnership, joint venture, association or other
business entity, whether now existing or hereafter organized or
acquired, (i) in the case of a corporation, of which more than
50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote
in the election of directors, officers or trustees thereof is
held by such first-named Person or any of its Subsidiaries; or
(ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such
31
-23-
first-named Person or any of its Subsidiaries has the power to
direct or cause the direction of the management and policies of
such entity by contract or otherwise or if in accordance with
generally accepted accounting principles such entity is
consolidated with the first-named Person for financial
statement purposes.
"Surviving Entity" has the meaning provided in
Section 5.01.
"Temporary Cash Investments" means (i) Investments in
marketable, direct obligations issued or guaranteed by the
United States of America, or of any governmental agency or
political subdivision thereof, maturing within 365 days of the
date of purchase; (ii) Investments in certificates of deposit
issued by a bank organized under the laws of the United States
of America or any state thereof or the District of Columbia, in
each case having capital, surplus and undivided profits
totaling more than $500,000,000 and rated at least A by
Standard & Poor's Corporation and A-2 by Moody's Investors
Service, Inc. maturing within 365 days of purchase; or
(iii) Investments not exceeding 365 days in duration in money
market funds that invest substantially all of such funds'
assets in the Investments described in the preceding
clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15
U.S.C. {{ 77aaa-77bbbb), as amended, as in effect on the date
of the execution of this Indenture until such time as this
Indenture is qualified under the TIA, and thereafter as in
effect on the date on which this Indenture is qualified under
the TIA, as amended from time to time, except as otherwise
provided in Section 9.03.
"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.
"Unrestricted Subsidiary" means (a) any Subsidiary of
an Unrestricted Subsidiary and (b) any Subsidiary of the
Company which is classified after the Issue Date as an
Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of the Company; provided that a Subsidiary organized
or acquired after the Issue Date may be so classified as an
Unrestricted Subsidiary only if such classification is in
compliance with Section 4.04. The Trustee shall be given
prompt notice by the Company of each resolution adopted by the
Board
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of Directors of the Company under this provision,
together with a copy of each such resolution adopted.
"U.S. Government Obligations" shall have the meaning
provided in Section 8.01.
"U.S. Legal Tender" 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.
"Warrants" means the Warrants issued pursuant to the
Warrant Agreement dated as of March 15, 1997 between the
Company and IBJ Schroder Bank & Trust Company, as Warrant
Agent.
"Wholly Owned Restricted Subsidiary" means any
Restricted Subsidiary which is a Wholly-Owned Subsidiary.
"Wholly Owned Subsidiary" means any Subsidiary of the
Company, all of the outstanding voting securities (other than
directors' qualifying shares) of which are owned, directly or
indirectly, by the Company.
SECTION 1.02. 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 security holder" 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, any 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
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or defined by SEC rule and not otherwise defined herein have
the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of
Exhibit A annexed hereto, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements (including notations
relating to any Guarantees, stock exchange rule or usage). The
Company and the Trustee shall approve the form of the
Securities and any notation, legend or endorsement (including
notations relating to any Guarantees) on them. Each Security
shall be dated the date of its issuance and shall show the date
of its authentication.
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SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant
Secretary, shall sign, or one Officer shall sign and one
Officer or an Assistant Secretary (each of whom shall, in each
case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by
manual or facsimile signature. The Company's seal shall also
be reproduced on the Securities.
If an Officer or Assistant Secretary whose signature
is on a Security was an Officer or Assistant Secretary 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. Each Guarantor shall execute its
Guarantee in the manner set forth in Section 10.07.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for
original issue in the aggregate principal amount not to exceed
$413,930,000 upon receipt of a Company Request in the form of
an Officers' Certificate. The Company Request shall specify
the amount of Securities to be authenticated, the date on which
the Securities are to be authenticated and that such Securities
have either been registered under the Securities Act or may
issued by the Company without registration under the Securities
Act pursuant to an available exemption therefrom, provided that
if such issuance is being made pursuant to an exemption from
the registration requirements of the Securities Act, the
Trustee shall be entitled to receive an Opinion of Counsel with
respect to the availability of such exemption prior to any
authentication of Securities. The aggregate principal amount
of Securities outstanding at any time may not exceed
$413,930,000, except as provided in Section 2.07. Upon receipt
of a Company Request in the form of an Officers' Certificate,
the Trustee shall authenticate Securities in substitution for
Securities originally issued to reflect any name change of the
Company.
The Trustee may appoint an authenticating agent
reasonably 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
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Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent
to deal with the Company and Affiliates of the Company.
The Securities shall be issuable in fully registered
form only, without coupons, in denominations of $1,000 and any
integral multiple thereof; provided, however, that Securities
may be issued in denominations of less than $1,000 (but not
less than $1.00) upon the exchange of the Senior Preferred
Stock for the Securities such that each holder of Senior
Preferred Stock shall receive Securities in a principal amount
equal to the full liquidation preference of the Senior
Preferred Stock on the date of exchange; provided, further,
however, that Secondary Securities may be issued in
denominations of less than $1,000 (but not less than $1.00).
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where (a) Secu-
rities may be presented or surrendered for registration of
transfer or for exchange ("Registrar"), (b) Securities may be
presented or surrendered for payment ("Paying Agent") and
(c) notices and demands in respect of the Securities and this
Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The
Company, upon written notice to the Trustee, may have one or
more additional Paying Agents reasonably acceptable to the
Trustee. The term "Paying Agent" includes any additional
Paying Agent. The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has
resigned or a successor has been appointed.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that each 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, or interest on, the Securities, and shall notify
the Trustee in writing of any Default by the Company in making
any such payment. To the extent the Company makes such
payments directly to the Holders, the Company shall
simultaneously notify the Trustee thereof in writing. 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
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Trustee may at any time, but shall be under
no obligation to, during the continuance of any payment
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 shall have no
further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee before each
Record Date and at such other times as the Trustee may request
in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the
Trustee.
SECTION 2.06. Transfer and Exchange.
When Securities are presented to the Registrar with a
request to register the transfer of such Securities or to
exchange such Securities for an equal principal amount of
Securities of other authorized denominations of the same
series, the Registrar shall register the transfer or make the
exchange as requested; provided, however, that the Securities
surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Securities at
the Registrar's written request. No service charge shall be
made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
other governmental charge payable upon exchanges or transfers
pursuant to Section 2.02, 2.10, 3.06, 4.12, 4.24 or 9.05). The
Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of business on
the day of such mailing and (ii) selected for redemption in
whole or in part pursuant to Article Three, except the
unredeemed portion
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of any Security being redeemed in part.
Neither the Trustee nor the Registrar shall have any duty to
monitor the Company's or any Guarantor's compliance with any
Federal or state securities laws.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee
or if the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate upon written notice
from the Company a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and
the Trustee, to protect the Company, the Trustee and any Agent
from any loss which any of them may suffer if a Security is
replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every
replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the
Securities that have been authenticated by the Trustee except
those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds
the Security.
If a Security is replaced pursuant to Section 2.07
(other than a mutilated Security surrendered for replacement),
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or the Final Maturity Date
the Paying Agent holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest
due on the Securities payable on that date, then on and after
that date such Securities cease to be outstanding and interest
on them ceases to accrue.
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SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company, any
Guarantor or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a
Responsible Officer of the Trustee actually knows are so owned
shall be disregarded.
The Trustee may require an Officers' Certificate
listing Securities owned by the Company, any Guarantor or any
of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate
temporary Securities upon receipt of a written order of the
Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Securities to
be authenticated and the date on which the temporary Securities
are to be authenticated. Temporary Securities shall be
substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate upon receipt of a
written order of the Company pursuant to Section 2.02
definitive Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of
the Company, the Trustee shall destroy all Securities
surrendered for transfer, exchange, payment or cancellation and
deliver a certificate of destruction. Subject to Section 2.07,
the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
If the Company or any Guarantor shall acquire any of the
Securities, such acquisition shall not operate as a redemption
or satisfaction of the Indebtedness represented by such
Securities
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unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on
the Securities, it shall pay interest on overdue principal and
on overdue installments of interest (without grace periods)
from time to time on demand at the rate of 2% per annum in
excess of the rate shown on the Security.
The Company shall fix the special record date and
payment date in a manner satisfactory to the Trustee and
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provide the Trustee at least 20 days' notice of the proposed
amount of defaulted interest to be paid and the special payment
date, and at the same time the Company shall deposit with the
Trustee funds in an amount or deliver to the Trustee Secondary
Securities in principal amount, as the case may be, equal to
the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit or delivery prior to the date of
the proposed payment, such payment when deposited or delivered
to be held in trust for the benefit of the persons entitled to
such defaulted interest as provided in this Section.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a
"CUSIP" number, and if so, the Trustee shall use the CUSIP
number in notices of redemption or exchange as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification
numbers printed on the Securities.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 a.m. New York City time on each
Interest Payment Date and the Final Maturity Date, the Company
shall have either delivered by wire transfer or check such
interest or principal and interest, as the case may be to
Holders at such Holders registered address or deposited with
the Paying Agent in immediately available funds money or
Secondary Securities, as the case may be, sufficient to make
cash payments, if any, due on such Interest Payment Date or the
Final Maturity
40
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Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment or Secondary
Securities, as the case may be, to the Holders on such Interest
Payment Date or the Final Maturity Date, as the case may be.
If the Company is to deliver funds by wire transfer, it shall
give the Trustee fifteen (15) days prior written notice.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant
to Paragraph 5 of the Securities, it shall notify the Trustee
in writing of the Redemption Date, the Redemption Price and the
principal amount of Securities to be redeemed. The Company
shall give, or cause to be given, notice of redemption to
Trustee at least 30 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be agreed to by
the Trustee in writing), together with an Officers' Certificate
stating that such redemption will comply with the conditions
contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be
redeemed, the Trustee shall select the Securities to be
redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed on a national
securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate. If the
Securities are listed on any national securities exchange, the
Company shall notify the Trustee in writing of the requirements
of such exchange in respect of any redemption. The Trustee
shall make the selection from the Securities outstanding and
not previously called for redemption and shall promptly notify
the Company 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 less than $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.
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Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company at its own expense shall mail or
cause to be mailed a notice of redemption by first-class mail,
postage prepaid, to each Holder whose Securities are to be
redeemed. At the Company's written request, the Trustee 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 and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest, if any;
(5) that, unless the Company defaults in making the
redemption payment, 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
and accrued interest, if any, to the Redemption Date upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the
portion of the principal amount 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; and
(7) if fewer 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 Securities to be redeemed
and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
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SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance
with Section 3.03, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price
plus accrued interest, if any. Upon surrender to the Paying
Agent, such Securities called for redemption shall be paid at
the Redemption Price (which shall include accrued interest
thereon to the Redemption Date), but installments of interest,
the maturity of which is on or prior to the Redemption Date,
shall be payable to Holders of record at the close of business
on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all
Securities to be redeemed on that date.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price plus accrued interest, if any, interest on the
Securities to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Securities are
presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed
in part, the Trustee shall upon written instruction from the
Company authenticate for the Holder a new Security or
Securities equal in principal amount to the unredeemed portion
of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest
on the Securities in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall
be considered paid on the date it is due if the Trustee or
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Paying Agent holds on that date U.S. Legal Tender designated
for and sufficient to pay the installment or, if interest is to
be paid in Secondary Securities, if the Trustee or Paying Agent
holds on that date duly authenticated Secondary Securities in
an aggregate principal amount equal to the applicable
installment of interest.
The Company shall pay, to the extent such payments
are lawful, interest on overdue principal and it shall pay
interest on overdue installments of interest (without regard to
any applicable grace periods) from time to time on demand at
the rate borne by the Securities plus 2% per annum. Interest
will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of
Manhattan, The City of New York, the office or agency required
under Section 2.03. The Company shall give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section
11.02. The Company hereby initially designates the office of
the Trustee at 114 West 47th Street, New York, New York 10036,
Attention: Corporate Trust and Agency Division, as its office
or agency in the Borough of Manhattan, The City of New York.
SECTION 4.03. Limitation on Additional Indebtedness.
The Company will not, and will not permit any
Restricted Subsidiary of the Company to, directly or
indirectly, incur (as defined) any Indebtedness (including
Acquired Indebtedness), provided that the Company may incur
Indebtedness and any Restricted Subsidiary created after the
Issue Date may incur Acquisition Indebtedness if (a) after
giving effect to the incurrence of such Indebtedness and the
receipt and application of the proceeds thereof, the ratio of
the Company's total consolidated Indebtedness to the Company's
EBITDA (determined on a pro forma basis for the last four
fiscal quarters of the Company for which financial statements
are available at the date of determination) is less than 7.0 to
1; provided, however, that if the Indebtedness which is the
subject of a determination under this provision is Acquired
Indebtedness or
44
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Acquisition Indebtedness, then such ratio shall
be determined by giving effect to (on a pro forma basis as if
the transaction had occurred at the beginning of the
four-quarter period) to both the incurrence or assumption of
such Acquired Indebtedness or Acquisition Indebtedness by the
Company or a Restricted Subsidiary, as the case may be, and the
inclusion in the Company's EBITDA of the EBITDA of the acquired
Person, business, property or assets, and (b) no Default or
Event of Default shall have occurred and be continuing at the
time or as a consequence of the incurrence of such
Indebtedness.
Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries may incur Permitted Indebtedness;
provided that the Company shall not incur any Permitted
Indebtedness that ranks junior in right of payment to the
Securities that has a maturity or mandatory sinking fund
payment prior to the maturity of the Securities.
SECTION 4.04. Limitation on Restricted Payments.
The Company will not make, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, make,
any Restricted Payment, unless:
(a) no Default or Event of Default shall have
occurred and be continuing at the time of or after giving
effect to such Restricted Payment;
(b) immediately after giving effect to such
Restricted Payment, (i) the Company could incur $1.00 of
additional Indebtedness (other than Permitted
Indebtedness) under Section 4.03 and (ii) the ratio of the
Company's EBITDA (as determined on a pro forma basis for
the last four fiscal quarters of the Company for which
financial statements are available at the date of
determination) to the Company's Consolidated Interest
Expense (determined on a pro forma basis for the last four
fiscal quarters of the Company for which financial
statements are available) is equal to or greater than 1.4
to 1: and
(c) immediately after giving effect to such
Restricted Payment, the aggregate of all Restricted
Payments declared or made after the Issue Date does not
exceed the sum of (1) 100% of the Company's EBITDA from
the Issue Date to the date of determination minus 1.4
times the Company's Consolidated Interest Expense from the
Issue Date to the date of determination (or in the event
45
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such amount shall be a deficit, minus 100% of such
deficit), (2) 100% of the aggregate Net Proceeds and the
fair market value of marketable securities or other
property received by the Company from the issue or sale,
after the Issue Date, of Capital Stock (other than
Disqualified Capital Stock, Capital Stock of the Company
issued to any Subsidiary of the Company and the proceeds
from the issuance of Capital Stock pursuant to the
Warrants or the Old Warrants) of the Company or any
Indebtedness or other securities of the Company
convertible into or exercisable or exchangeable for
Capital Stock (other than Disqualified Capital Stock) of
the Company which has been so converted or exercised or
exchanged, as the case may be. For purposes of
determining under this clause (c) the amount expended for
Restricted Payments, cash distributed shall be valued at
the face amount thereof and property other than cash shall
be valued at its fair market value.
The provisions of this covenant shall not prohibit
(i) the payment of any distribution within 60 days after the
date of declaration thereof, if at such date of declaration
such payment would comply with the provisions of this
Indenture, (ii) so long as no Default or Event of Default shall
have occurred and be continuing, the retirement of any shares
of Capital Stock of the Company or Indebtedness subordinated to
the Securities by conversion into, or by or in exchange for,
shares of Capital Stock (other than Disqualified Capital Stock)
of the Company, or out of, the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of
the Company) of other shares of Capital Stock of the Company
(other than Disqualified Capital Stock), (iii) so long as no
Default or Event of Default shall have occurred and be
continuing, the redemption or retirement of Indebtedness of the
Company subordinated to the Securities in exchange for, by
conversion into, or out of the Net Proceeds of, a substantially
concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary) of the Company that is
contractually subordinated in right of payment to the
Securities to at least the same extent as the subordinated
Indebtedness being redeemed or retired, (iv) so long as no
Default or Event of Default shall have occurred and be
continuing, the retirement of any shares of Disqualified
Capital Stock by conversion into, or by exchange for, shares of
Disqualified Capital Stock, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of
the Company) of other shares of Disqualified Capital Stock;
provided that (a) such Disqualified Capital Stock is not
subject to mandatory redemption earlier
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than the maturity of the Securities, (b) such Disqualified
Capital Stock is in an aggregate liquidation preference
that is equal to or less than the sum of (x) the aggregate
liquidation preference of the Disqualified Capital Stock
being retired, (y) the amount of accrued and unpaid
dividends, if any, and premiums owed, ifany, on the
Disqualified Capital Stock being retired and (z) the
amount of customary fees, expenses and costs related to
the incurrence of such Disqualified Capital Stock and (c) such
Disqualified Capital Stock is incurred by the same Person that
initially incurred the Disqualified Capital Stock being
retired, except that the Company may incur Disqualified Capital
Stock to refund or refinance Disqualified Capital Stock of any
Wholly-Owned Restricted Subsidiary of the Company, (v) the
payment of dividends (whether or not in cash) on the Senior
Preferred Stock in the manner provided in the Certificate of
Designation and (vi) so long as no Default or Event of Default
shall have occurred and by continuing, the payment of dividends
and distributions to the stockholders and warrantholders of the
Company on or after the Issue Date in an amount not to exceed
$4,000,000 (vii) the exchange of Senior Preferred Stock for
Securities and (viii) so long as no Default or Event of Default
shall have occurred and be continuing, other Restricted
Payments in an aggregate amount not to exceed $3,000,000. In
determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (c) of
the immediately preceding paragraph, amounts expended pursuant
to clauses (i), (ii) and (viii) shall be included in such
calculation.
Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted
and setting forth the basis upon which the calculations
required by Section 4.04 were computed, which calculations may
be based upon the Company's latest available financial
statements, and that no Default or Event of Default will result
from making the Restricted Payment.
SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of
each of the Restricted Subsidiaries in accordance with the
respective organizational documents of each Restricted
Subsidiary and the rights (charter and statutory) and material
franchises of
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the Company and each of its Restricted Subsidiaries;
provided, however, that the Company shall not be
required to preserve any such right or franchise, or the
corporate existence of any Restricted Subsidiary, if the Board
of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges
levied or imposed upon it or any of the Restricted Subsidiaries
or upon the income, profits or property of it or any of the
Restricted Subsidiaries and (ii) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by
law become a material liability or Lien upon the property of it
or any of the Restricted Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for
which appropriate provision has been made.
SECTION 4.07. Maintenance of Properties and Insurance.
(1) The Company shall cause all material properties
owned by or leased by it or any of the Restricted Subsidiaries
used or useful to the conduct of its business or the business
of any of the Restricted Subsidiaries to be improved or
maintained and kept in normal condition, repair and working
order and supplied with all necessary equipment and shall cause
to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in its judgment
may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 4.07
shall prevent the Company or any of the Restricted Subsidiaries
from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of
Directors of the Company or of the Board of Directors of any
Restricted Subsidiary, or of an officer (or other agent
employed by the Company or of any of the Restricted
Subsidiaries) of the Company or any
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of its Restricted Subsidiaries having managerial
responsibility for any such property, desirable in the conduct
of the business of the Company or any Restricted Subsidiary,
and if such discontinuance or disposal is not adverse in
any material respect to the Holders.
(2) The Company shall maintain, and shall cause the
Restricted Subsidiaries to maintain, insurance with responsible
carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance
provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers'
compensation and interruption of business insurance.
SECTION 4.08. Compliance Certificate; Notice of Default.
(1) The Company shall deliver to the Trustee, within
100 days after the close of each fiscal year and within 50 days
after the close of each of its first three fiscal quarters an
Officers' Certificate stating that a review of the activities
of the Company has been made under the supervision of the
signing officers with a view to determining whether it has
kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the
Company during such preceding fiscal year or fiscal quarter, as
the case may be, has kept, observed, performed and fulfilled
each and every such covenant and no Default or Event of Default
occurred during such fiscal year or fiscal quarter, as the case
may be, and at the date of such certificate no Default or Event
of Default has occurred and is continuing or, if such signers
do know of such Default or Event of Default, the certificate
shall describe its status with particularity. The Officers'
Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year
end.
(2) The annual financial statements delivered
pursuant to Section 4.10 shall be accompanied by a written
report of the Company's independent accountants (who shall be a
firm of established national reputation) that in conducting
their audit of such financial statements nothing has come to
their attention that would lead them to believe that the
Company has violated any provisions of Article Four, Five or
Six of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood
that such
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accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of
any such violation.
(3) The Company shall deliver to the Trustee, within
ten days of becoming aware of any Default or Event of Default
in the performance of any covenant, agreement or condition
contained in this Indenture, an Officers' Certificate
specifying the Default or Event of Default and describing its
status with particularity.
SECTION 4.09. Compliance with Laws.
The Company shall comply, and shall cause each of the
Restricted Subsidiaries to comply, with all applicable
statutes, rules, regulations, orders and restrictions of the
United States of America, all states and municipalities
thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties,
except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or
results of operations of the Company and the Restricted
Subsidiaries taken as a whole.
SECTION 4.10. SEC Reports.
(1) The Company will file with the SEC all
information documents and reports to be filed with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, whether or
not the Company is subject to such filing requirements so long
as the SEC will accept such filings. The Company (at its own
expense) will file with the Trustee within 15 days after it
files them with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company files with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. Upon
qualification of this Indenture under the TIA, the Company
shall also comply with the provisions of TIA { 314(a).
(2) At the Company's expense, regardless of whether
the Company is required to furnish such reports to its
stockholders pursuant to the Exchange Act, the Company shall
cause its consolidated financial statements, comparable to that
which would have been required to appear in annual or quarterly
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reports, to be delivered to the Trustee and the Holders. The
Company will also make such reports available to prospective
purchasers of the Securities, securities analysts and
broker-dealers upon their request.
(3) For so long as any of the Securities remain
outstanding the Company will make available to any prospective
purchaser of the Securities or beneficial owner of the
Securities in connection with any sale thereof the information
required by Rule 144A(d)(4) under the Securities Act during any
period when the Company is not subject to Section 13 or 15(d)
under the Exchange Act. The delivery of such reports,
information and documents to the Trustee is for informational
purposes and the Trustee's receipt of such shall not constitute
constructive or actual notice of any information contained
therein or determination from information contained therein,
including, without limitation, the Company's or the Guarantors'
compliance with any of their covenants or agreements herein, as
to which the Trustee is entitled to conclusively rely on an
Officers' Certificate.
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from
paying all or any portion of the principal of and/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) the Company hereby expressly
waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had
been enacted.
SECTION 4.12. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless
(i) the Company or its Restricted Subsidiary, as the case may
be, receives consideration at the time of such sale or other
disposition at least equal to the fair market value thereof (as
determined in good faith by the Company's Board of Directors,
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and evidenced by a Board resolution); (ii) not less than 85% of
the consideration received by the Company or its Restricted
Subsidiaries, as the case may be, is in the form of cash or
cash equivalents (those equivalents allowed under "Temporary
Cash Investments"); and (iii) the Asset Sale Proceeds received
by the Company or any such Restricted Subsidiary are applied
(a) to the extent the Company elects, (x) to an investment in
assets (including Capital Stock or other securities purchased
in connection with the acquisition of Capital Stock or property
of another person) used or useful in media businesses, provided
that such investment occurs or the Company or a Restricted
Subsidiary enters into contractual commitments to make such
investment, subject only to customary conditions (other than
the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the
"Reinvestment Date") and Asset Sale Proceeds contractually
committed are so applied within 360 days following the receipt
of such Asset Sale Proceeds or (y) to repay any Senior Debt of
the Company or a Guarantor Senior Debt of a Guarantor, and (b)
to the extent not applied pursuant to clause (iii)(a), if on
the Reinvestment Date with respect to any Asset Sale, the
Available Asset Sale Proceeds exceed $5 million, the Company
shall apply an amount equal to such Available Asset Sale
Proceeds to an offer to repurchase the Securities, at a
purchase price in cash equal to 100% of the principal amount
thereof, plus (x) accrued and unpaid interest, if any, to the
date of repurchase and (y) an amount in cash equal to the
Current Market Value on the date the notice of the Excess
Proceeds Offer is mailed of the issuable but unissued
Contingent Class A Shares (including Contingent Class A Shares
not issued as a result of an FCC Deferral or an Authorization
Deferral) with respect thereto, (an "Excess Proceeds Offer").
If an Excess Proceeds Offer is not fully subscribed, the
Company may retain the portion of the Available Asset Sale
Proceeds not required to repurchase Securities.
In the event of the transfer of substantially all
(but not all) of the property and assets of the Company and the
Restricted Subsidiaries as an entirety to a Person in a
transaction permitted under Section 5.01, the successor
corporation shall be deemed to have sold the properties and
assets of the Company and the Restricted Subsidiaries not so
transferred for purposes of this covenant, and shall comply
with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or
the Restricted Subsidiaries deemed to be sold shall be deemed
to be Asset Sale Proceeds for purposes of this covenant.
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Notice of each Excess Proceeds Offer pursuant to this
Section 4.12 will be mailed or caused to be mailed, by first
class mail, by the Company within 30 days following the
Reinvestment Date to all Holders at their last registered
addresses, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Excess Proceeds
Offer and shall state the following terms:
(1) that the Excess Proceeds Offer is being made
pursuant to this Section 4.12 and that all Securities
tendered in whole or in part in integral multiples of
$1,000 will be accepted for payment; provided, however,
that if the principal amount of Securities tendered in an
Excess Proceeds Offer exceeds the aggregate amount of the
Available Asset Sale Proceeds, the Company shall select
the Securities to be purchased on a pro rata basis;
(2) the purchase price (including the amount of
accrued interest and amounts payable with respect to
Contingent Class A Shares, if any) and the purchase date
(which shall be no earlier than 30 days and not later than
60 days from the date of mailing of notice of such Excess
Proceeds Offer, or such longer period as required by law);
(3) that any Security not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making
payment therefor, any Security accepted for payment
pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the purchase date;
(5) that Holders electing to have a Security
purchased pursuant to an Excess Proceeds Offer will be
required to surrender the Security, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on
the purchase date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the
third Business Day prior to the purchase date, a facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder
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delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only
in part will be issued new Securities in a principal
amount equal to the unpurchased portion of the Securities
surrendered; and
(8) the calculation used in determining the amount
of Available Asset Sale Proceeds to be applied to the
repurchase of Securities.
On or before the purchase date, the Company shall
(i) accept for payment Securities or portions thereof tendered
pursuant to the Excess Proceeds Offer which are to be purchased
in accordance with item (1) above, (ii) deposit with the Paying
Agent in accordance with Section 2.14 U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest and
amounts payable with respect to Contingent Class A Shares, if
any, of all Securities to be purchased and (iii) deliver to the
Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail
to the Holders of Securities so accepted payment in an amount
equal to the purchase price plus accrued interest and amounts
payable with respect to Contingent Class A Shares, if any. For
purposes of this Section 4.12, the Trustee shall act as the
Paying Agent.
The Company shall and shall cause its Subsidiaries to
comply with all tender offer rules under state and Federal
securities laws, including, but not limited to, Section 14(e)
under the Exchange Act and Rule 14e-1 thereunder, to the extent
applicable to such offer. To the extent that the provisions of
any securities laws or regulations conflict with the foregoing
provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be
deemed to have breached its obligations under the foregoing
provisions of this Indenture by virtue thereof.
SECTION 4.13. Limitation on Investments.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Investment other than
(i) a Permitted Investment or (ii) an Investment that is made
as a Restricted Payment in compliance with Section 4.04, after
the Issue Date.
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SECTION 4.14. Limitation on Preferred Stock
of Restricted Subsidiaries.
The Company will not permit any Restricted Subsidiary
of the Company to issue any Preferred Stock (except Preferred
Stock to the Company or a Restricted Subsidiary) or permit any
Person (other than the Company or a Restricted Subsidiary) to
hold any such Preferred Stock unless the Company or such
Restricted Subsidiary would be entitled to incur or assume
Indebtedness under Section 4.03 in the aggregate principal
amount equal to the aggregate liquidation value of the
Preferred Stock to be issued.
SECTION 4.15. Limitation on Liens.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause or
suffer to exist or become effective any Liens of any kind upon
any property or asset of the Company or any of its Restricted
Subsidiaries or any shares of stock or debt of any of its
Restricted Subsidiaries which owns property or assets, now
owned or hereafter acquired, other than Liens securing Senior
Debt and Guarantor Senior Debt and Permitted Liens.
SECTION 4.16. Limitation on Other Senior Subordinated Debt.
The Company will not, and will not permit any
Guarantor to, directly or indirectly, incur, contingently or
otherwise, any Indebtedness that is both (i) subordinate in
right of payment to any Senior Debt of the Company or Guarantor
Senior Debt of such Guarantor, as the case may be, and (ii)
senior in right of payment to the Securities or the Guarantee
of such Guarantor, as the case may be. For purposes of this
Section 4.16, Indebtedness is deemed to be senior in right of
payment to the Securities and a Guarantee, as the case may be,
if it is not explicitly subordinate in right of payment to
Senior Debt or Guarantor Senior Debt at least to the same
extent as the Securities or the applicable Guarantee, as the
case may be, are subordinate to Senior Debt or Guarantor Senior
Debt.
SECTION 4.17. Sale of AM Stations.
(a) If the Company has not (x) consummated Asset
Sales including the FCC broadcast licenses of WXLX-AM, New
York, KXMG-AM, Los Angeles, and WCMQ-AM, Miami, and applied the
lesser of (1) $15.0 million of the Asset Sale Proceeds with
respect to such Asset Sales or (2) the excess of the Asset Sale
55
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Proceeds with respect to such Asset Sales above $25.0 million,
to repurchase, repay or redeem Notes or Old Notes, (y) received
Net Proceeds from issuances of its Capital Stock (other than
Disqualified Capital Stock) after the Issue Date in an amount
equal to or greater than $45.0 million or (z) utilized $40.0
million of Asset Sale Proceeds from any Asset Sale(s) after the
Issue Date to repurchase, repay or redeem Notes or Old Notes,
in each case on or prior to the AM Stations Asset Sale Date,
then, subject to clauses (c), (d) and (e) of this Section 4.17,
the Company shall issue to the Holders of record of the then
outstanding Securities on the AM Stations Asset Sale Date
validly issued, fully paid and non-assessable shares of Class A
Common Stock, par value $0.01 per share ("Class A Common
Stock"), of the Company at a rate per $1,000 principal amount
of Securities equal to (I) that number of shares Class A Common
Stock equal to 1.5% of Class A Common Stock and Class B Common
Stock, par value $0.01 per share (the "Class B Common Stock"
and together with the Class A Common Stock, the "Corporation
Common Stock"), of the Company on a Fully Diluted Basis as of
the AM Stations Asset Sale Date divided by (II) the number
obtained by dividing (aa) the sum of (xx) the aggregate
liquidation preference of shares of Senior Preferred Stock
outstanding on the AM Stations Asset Sale Date and (yy) the
aggregate principal amount of Securities outstanding on the AM
Stations Asset Sale Date by (bb) $1,000.
(b) If, as of any anniversary of the AM Stations
Asset Sale Date, the Company shall not have either (x) received
Net Proceeds from issuances of its Capital Stock (other than
Disqualified Capital Stock) after the Issue Date in an amount
equal to or greater than $45.0 million or (y) utilized $40.0
million of Asset Sale Proceeds from any Asset Sale(s) after the
Issue Date to repurchase, redeem or repay Notes or Old Notes,
then, subject to clauses (c), (d) and (e) of this Section 4.17,
the Company shall issue to the Holders of record of the then
outstanding Securities on such anniversary of the AM Stations
Asset Sale Date validly issued, fully paid and non-assessable
shares of Class A Common Stock at a rate per $1,000 principal
amount of Securities equal to (I) that number of shares of
Class A Common Stock equal to 1.5% of the Corporation Common
Stock on a Fully Diluted Basis as of such anniversary of AM
Stations Asset Sale Date divided by (II) the number obtained by
dividing (aa) the sum of (xx) the aggregate liquidation
preference of shares of Senior Preferred Stock outstanding as
of such anniversary of the AM Stations Asset Sale Date and (yy)
the aggregate principal amount of Securities outstanding as of
such anniversary of the AM Stations Asset Sale Date by (bb)
$1,000.
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(c) If, in the opinion of counsel for the Company,
approval of the FCC is required before the Company may issue
shares of Class A Common Stock pursuant to the provisions in
clause (a) or (b) of this Section 4.17 ("Contingent Class A
Shares"), the Company may defer the issuance of such Contingent
Class A Shares (an "FCC Deferral") until such time as approval
of the FCC is obtained or no longer required. The Company
shall promptly mail notice to the Holders of any event which
requires it to suspend the issuance of Contingent Class A
Shares and of the termination of any such suspension. Upon
receipt of any such approval, or such approval no longer being
required, the Company shall promptly issue to the Holders all
Contingent Class A Shares to which they are entitled pursuant
to clauses (a) and (b) of this Section 4.17. The Company
agrees to promptly commence any proceedings before the FCC is
required to permit the issuance of Contingent Class A Shares
and to use its best efforts to obtain any order of the FCC or
similar approval necessary to permit the issuance of Contingent
Class A Shares and maintain such approval in full force and
effect.
(d) If, at any time, the Company shall not have
sufficient authorized shares of Class A Common Stock to permit
it to issue Contingent Class A Shares, the Company may defer
the issuance of such Contingent Class A Shares (an
"Authorization Deferral") until such time as it has sufficient
authorized shares of Class A Common Stock. The Company shall
use its best efforts (including, without limitation, calling
special meetings of its stockholders to increase its authorized
shares of Class A Common Stock) to reserve and keep available
shares of Class A Common Stock, free from preemptive rights,
out of its authorized but unissued shares of Class A Common
Stock or its authorized and issued Class A Common Stock held in
its treasury, for the purposes of enabling it to satisfy any
obligation to issue Contingent Class A Shares which may be
issuable in respect of outstanding Securities.
(e) If, at any time, the Company shall have issued
4,000,000 shares of Class A Common Stock in the aggregate
pursuant to this Section 4.17 or pursuant to the provisions of
the Certificate of Designation, the Company shall mail notice
of such event to the Holders (by first class mail, postage pre-
paid) and their respective addresses in the Securities
register, which notice shall state that prior to the Company
being obligated to issue any additional Contingent Class A
Shares pursuant to this Section 4.17, each Holder must pay to
the Company the par value of the Contingent Class A Shares to
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which each such Holder is thereafter entitled. In addition,
the Company shall use its best efforts to legend each
certificate representing Securities to the effect of such
notice. If, after the Company shall have issued such 4,000,000
shares of Class A Common Stock, an event occurs which entitles
the Holders to receive additional Contingent Class A Shares,
the Company shall mail a notice of such event (an "Issuance
Notice") to each Holder (by first class mail, postage pre-paid)
within one day of such event setting forth the number of
Contingent Class A Shares issuable to such Holder, the par
value of such Contingent Class A Shares and stating that the
Company agrees to issue to such Holder such Contingent Class A
Shares upon payment to the Company of the par value of such
Contingent Class A Shares, at its principal place of business
to be set forth in such notice, in cash or by certified check
to the order of the Company. Notwithstanding any other
provisions of this Indenture, the right of the Holders to
receive Contingent Class A Shares pursuant to, and in the
manner contemplated by, any Issuance Notice shall remain in
effect and shall not be terminated by redemption, repurchase or
retirement of the Securities or otherwise. Upon receipt of any
payment of such par value, the Company shall promptly issue to
the applicable Holder the applicable number of the Contingent
Class A Shares, which issuance shall satisfy and be deemed to
have paid in full the applicable obligation to issue Contingent
Class A Shares. For the avoidance of doubt, Contingent Class A
Shares subject to purchase pursuant to an Issuance Notice shall
not be deemed "issuable but unissued Contingent Class A Shares"
for any purpose of this Indenture or the Securities. The
Company shall not increase the par value of the Class A Common
Stock so long as any Contingent Class A Shares are issuable
pursuant to this Section 4.17 or may be purchased pursuant to
an Issuance Notice.
SECTION 4.18. Limitations on Transactions with Affiliates.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into
any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of
assets, property or services) with any Affiliate (including
entities in which the Company or any of its Restricted
Subsidiaries own a minority interest) or holder of 10% or more
of the Company's Common Stock (an "Affiliate Transaction") or
extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date
unless (i) such Affiliate Transaction is between or among the
Company
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and its Wholly-Owned Subsidiaries; or (ii) the terms of
such Affiliate Transaction are fair and reasonable to the
Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as
favorable as the terms which could be obtained by the Company
or such Restricted Subsidiary, as the case may be, in a
comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction involving
an amount or having a value in excess of $1,000,000 which is
not permitted under clause (i) above, such Affiliate
Transaction(s) must be approved by a majority of the Board of
Directors of the Company (including a majority of the
disinterested directors). In transactions with a value in
excess of $3,000,000 which are not permitted under clause (i)
above, in addition to the requirements set forth in the
immediately preceding sentence, the Company must obtain a
written opinion as to the fairness of such a transaction from a
nationally recognized expert with experience in appraising the
terms of conditions of the type of business or transaction or
series of transactions for which approval is required.
The foregoing provisions will not apply to (i) any
Restricted Payment that is not prohibited by the provisions of
Section 4.04 or (ii) any transaction approved by the Board of
Directors of the Company, with an officer or director of the
Company or of any Subsidiary of the Company in his or her
capacity as officer or director entered into in the ordinary
course of business, including compensation and employee benefit
arrangements with any officer or director of the Company or of
any Subsidiary of the Company that are customary for public
companies in the radio broadcasting industry.
SECTION 4.19. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, nor permit
any of its Restricted Subsidiaries to create or acquire, any
Subsidiary other than (i) a Restricted Subsidiary existing as
of the Issue Date, (ii) a Restricted Subsidiary that is
acquired in connection with the acquisition by the Company of a
radio station or radio broadcast license (and which Restricted
Subsidiary was not expressly created in contemplation of such
acquisition); (iii) a Restricted Subsidiary created after the
Issue Date; or (iv) an Unrestricted Subsidiary; provided,
however, that each Restricted Subsidiary acquired or created
pursuant to clause (ii) or (iii) shall have executed an
unconditional guarantee (a "Guarantee") of all of the Company's
obligations under the Securities and this Indenture on the
terms set forth in Article Ten, satisfactory in form and
substance to
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the Trustee (and with such documentation relating
thereto as the Trustee shall require, including, without
limitation a supplement or amendment to this Indenture and
Opinions of Counsel as to the enforceability of such
Guarantee), pursuant to which such Restricted Subsidiary shall
become a Guarantor.
SECTION 4.20. Limitation on Capital Stock of
Restricted Subsidiaries.
The Company will not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Capital Stock of a
Restricted Subsidiary of the Company, other than Capital Stock
of a Restricted Subsidiary of the Company which owns or holds
only property or assets acquired by the Company and its
Restricted Subsidiaries after the Issue Date, or (ii) permit
any of its Restricted Subsidiaries to issue any Capital Stock,
other than to the Company or a Wholly-Owned Restricted
Subsidiary of the Company. The foregoing restrictions shall
not apply to (a) an Asset Sale made in compliance with
Section 4.12, (b) the issuance of Preferred Stock in compliance
with Section 4.14 or (c) a pledge or hypothecation or other
Lien on Capital Stock of a Restricted Subsidiary pursuant to a
Permitted Lien securing Bank Indebtedness.
SECTION 4.21. Lines of Business.
The Company and the Restricted Subsidiaries will not
engage in any businesses which are not either (i) the same,
similar or related to the businesses in which the Company and
the Restricted Subsidiaries are engaged on the Issue Date or
(ii) Permitted Investments.
SECTION 4.22. Payments for Consent.
Neither the Company nor any of its Subsidiaries
shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to
any holder of any Securities for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions
of this Indenture, the Securities or any Guarantees unless such
consideration is offered to be paid or agreed to be paid to all
holders of the Securities who so consent, waive or agree to
amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
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SECTION 4.23. Limitation on Sale and
Lease-Back Transactions.
The Company will not, and will not permit any
Restricted Subsidiary of the Company to, enter into any Sale
and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold, as
determined by a board resolution of the Company and (ii) the
Company could incur the Attributable Debt in respect of such
Sale and Lease-Back Transaction in compliance with
Section 4.03.
SECTION 4.24. Change of Control.
Within 20 days of the occurrence of a Change of
Control, the Company shall notify the Trustee in writing of
such occurrence and shall make an offer to purchase (the
"Change of Control Offer") the outstanding Securities at a
purchase price equal to 101% of the principal amount thereof
plus (x) any accrued and unpaid interest thereon to the Change
of Control Payment Date and (y) an amount in cash equal to the
Current Market Value on the date of the occurrence of the
Change of Control of the issuable but unissued Contingent Class
A Shares (including Contingent Class A Shares not issued as a
result of an FCC Deferral or an Authorization Deferral) with
respect thereto (such applicable purchase price being
hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this
Section 4.24.
Within 20 days of the occurrence of a Change of
Control, the Company also shall (i) cause a notice of the
Change of Control Offer to be sent at least once to the Dow
Jones News Service or similar business news service in the
United States and (ii) send by first-class mail, postage
prepaid, to the Trustee and to each holder of the Securities,
at the address appearing in the register maintained by the
Registrar of the Securities, a notice stating:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.24 and that all Securities
tendered will be accepted for payment, and otherwise
subject to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the
purchase date (which shall be a Business Day no earlier
than 20 business days from the date such notice is mailed
(the "Change of Control Payment Date"));
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(3) that any Securities not tendered will continue
to accrue interest;
(4) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Securities
accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that holders accepting the offer to have their
Securities purchased pursuant to a Change of Control Offer
will be required to surrender the Securities to the Paying
Agent at the address specified in the notice prior to the
close of business on the Business Day preceding the Change
of Control Payment Date;
(6) that holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than
the close of business on the third Business Day preceding
the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of
the holder, the principal amount of the Securities
delivered for purchase, and a statement that such holder
is withdrawing his election to have such Securities
purchased;
(7) that holders whose Securities are being
purchased only in part will be issued new Securities equal
in principal amount to the unpurchased portion of the
Securities surrendered, provided that each Security
purchased and each such new Security issued shall be in an
original principal amount in denominations of $1,000 and
integral multiples thereof;
(8) any other procedures that a holder must follow
to accept a Change of Control Offer or effect withdrawal
of such acceptance; and
(9) the name and address of the Paying Agent.
On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent in accordance with
Section 2.14 U.S. Legal Tender sufficient to pay the Change of
Control Purchase Price, of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together
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with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. Upon receipt
by the Paying Agent of the monies specified in clause (ii)
above and a copy of the Officers' Certificate specified in
clause (iii) above, the Paying Agent shall promptly mail to the
Holders of Securities so accepted payment in an amount equal to
the purchase price plus accrued but unpaid interest, if any,
and the Trustee shall promptly authenticate and mail to such
Holders new Securities equal in principal amount to any
unpurchased portion of the Securities surrendered; provided
that only such new Security shall be issued in an original
principal amount in denominations of $1,000 and integral
multiples thereof. Any Securities not so accepted shall be
promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.24, the Trustee shall act as the
Paying Agent.
Any amounts remaining after the purchase of all
validly tendered and not validly withdrawn Securities pursuant
to a Change of Control Offer shall be returned by the Trustee
to the Company.
If the Company or any Restricted Subsidiary thereof
has issued any outstanding (i) Indebtedness that is
subordinated in right of payment to the Securities or any
Guarantee or (ii) Preferred Stock (other than Senior Preferred
Stock), and the Company or such Subsidiary is required to
repay, repurchase, redeem or to make a distribution with
respect to such subordinated Indebtedness or Preferred Stock
(other than Senior Preferred Stock) in the event of a Change of
Control, the Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate any such repayment,
repurchase, redemption or distribution with respect to such
subordinated Indebtedness or Preferred Stock (other than Senior
Preferred Stock) until such time as the Company shall have paid
the Change of Control Purchase Price in full to the holders of
Securities that have accepted the Company's Change of Control
Offer and shall otherwise have consummated the Change of
Control Offer made to holders of the Securities.
Prior to the mailing of the notice referred to above,
but in any event within 20 days following the date on which a
Change of Control occurs, the Company covenants that, if the
purchase of the Securities would violate or constitute a
default or be prohibited under any instrument governing
Indebtedness of the Company or any of its Subsidiaries
outstanding at the time, then the Company will, to the extent
needed to permit such purchase of Securities, either (i) repay
in full all
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Indebtedness under any such instrument, or (ii)
obtain the requisite consents under any such instrument, to
permit the purchase of the Securities as provided above. The
Company will first comply with the covenant in the preceding
sentence before it will be required to purchase Securities
pursuant to the provisions described above.
The Company shall and shall cause its Subsidiaries to
comply with all tender offer rules under state and Federal
securities laws, including, but not limited to, Section 14(e)
under the Exchange Act and Rule 14e-1 thereunder, to the extent
applicable to such offer. To the extent that the provisions of
any securities laws or regulations conflict with this Section
4.24, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached
its obligations under this Section 4.24 by virtue thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sales of Assets.
(a) The Company will not, in a single transaction or
series of related transactions, consolidate or merge with or
into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted
Subsidiary to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's
assets (determined on a consolidated basis for the Company and
the Company's Restricted Subsidiaries), whether as an entirety
or substantially as an entirety, to any Person unless:
(i) either (1) the Company shall be the surviving or continuing
corporation or (2) the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties
and assets of the Company and of the Restricted Subsidiaries
substantially as an entirety (the "Surviving Entity") (x) shall
be a corporation organized and validly existing under the laws
of the United States or any state thereof or the District of
Columbia and (y) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest
on all of the
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Securities and the performance of every covenant
of the Securities, this Indenture and the Registration Rights
Agreement on the part of the Company to be performed or
observed; (ii) immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y)
above (including giving effect to any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of
such transaction), the Company or such Surviving Entity, as the
case may be, shall be able (on a pro forma basis) to incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.03 hereof;
(iii) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause
(i)(2)(y) above (including, without limitation, giving effect
to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred and any Lien granted in connection
with or in respect of the transaction) no Default or Event of
Default shall have occurred or be continuing; and (iv) the
Company or the Surviving Entity, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and
that all conditions precedent in this Indenture relating to
such transaction have been satisfied and that such Supplemental
Indenture constitutes the legal, valid and binding agreement of
the Surviving Entity, subject to customary exceptions.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the
properties or assets of one or more Restricted Subsidiaries,
the Capital Stock of which constitutes all or substantially all
of the properties and assets of the Company, shall be deemed to
be the transfer of all or substantially all of the properties
and assets of the Company.
(c) No Guarantor (other than any Guarantor whose
Guarantee is to be released in accordance with the terms of the
Guarantee and this Indenture in connection with any transaction
complying with the provisions of Section 4.12) will, and the
Company will not cause or permit any Guarantor to, consolidate
with or merge with or into any Person other than the Company or
any other Guarantor unless: (i) the entity formed by or
surviving any such consolidation or merger (if other than the
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Guarantor) is a corporation organized and existing under the
laws of the United States or any State thereof or the District
of Columbia; (ii) such entity assumes by supplemental indenture
all of the obligations of the Guarantor on the Guarantee;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; (iv) immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro
forma basis, the Company could satisfy the provisions of clause
(a)(ii) of this Section 5.01; and (v) the Company shall have
delivered to the Trustee an Officers' Certificate and Opinion
of Counsel, each stating that such consolidation or merger and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with the
applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have
been satisfied. Any merger or consolidation of a Guarantor
with and into the Company (with the Company being the surviving
entity) or another Guarantor need only comply with subclause
(v) of this clause (c).
SECTION 5.02. Successor Corporation Substituted.
In accordance with the foregoing, upon any such
consolidation, merger, conveyance, lease or transfer of all or
substantially all of the assets of the Company in which the
Company is not the continuing corporation, the Surviving Entity
formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made
shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and
the Securities with the same effect as if such successor had
been named as the Company herein, and thereafter (except in the
case of a sale, assignment, transfer, lease, conveyance or
other disposition) the predecessor corporation will be relieved
of all further obligations and covenants under this Indenture,
the Securities and the Registration Rights Agreement; provided
that solely for purposes of computing amounts described in
subclause (iii) of Section 4.04, any such Surviving Entity
shall only be deemed to have succeeded to and be substituted
for the Company with respect to periods subsequent to the
effective time of such merger, consolidation or transfer of
assets.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any
Security for a period of 30 days after the same becomes
due and payable (whether or not such payment shall be
prohibited by Article Twelve); or
(2) the Company fails to pay the principal of any
Security, when such principal becomes due and payable,
whether at maturity, upon redemption or otherwise
(including the failure to make a payment to purchase
Securities tendered pursuant to a Change of Control Offer
or Excess Proceeds Offer) (whether or not such payment
shall be prohibited by Article Twelve); or
(3) the Company or any Guarantor defaults in the
observance or performance of any other covenant or
agreement contained in this Indenture, the Securities or
any Guarantee, which default continues for a period of
60 days after (x) the Company receives written notice
specifying the default and requiring the Company to remedy
the same from the Trustee or (y) the Company and the
Trustee receive such a notice from Holders of at least 25%
in principal amount of outstanding Securities (except in
the case of a default with respect to Article Five, which
will constitute an Event of Default with such notice
requirement but without such passage of time requirement);
or
(4) the Company or a Restricted Subsidiary defaults
under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or of any
Restricted Subsidiary (or the payment of which is
guaranteed by the Company or any Restricted Subsidiary)
which default (a) is caused by a failure to pay interest,
premium or principal of such Indebtedness which failure
shall not be cured, waived or postponed pursuant to an
agreement with the holders of such Indebtedness within 30
days after notice of such Default is given hereunder (a
"payment default"), or (b) results in the acceleration of
such
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Indebtedness prior to its express maturity and such
acceleration shall not be rescinded or annulled within 10
days after notice of such Default is given hereunder and,
in each case, the principal amount of any such
Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a
payment default or the maturity of which has been so
accelerated, aggregates at least $3,000,000; or
(5) the Company or any of its Restricted
Subsidiaries (A) admits in writing its inability to pay
its debts generally as they become due, (B) commences a
voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (C) consents to the entry of a
judgment, decree or order for relief against it in an
involuntary case or proceeding under any Bankruptcy Law,
(D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or
acquiesces in the institution of a bankruptcy or an insol-
vency proceeding against it, (F) makes a general assign-
ment for the benefit of its creditors, or (G) takes any
corporate action to authorize or effect any of the
foregoing; or
(6) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the
Company or any Restricted Subsidiary in an involuntary
case or proceeding under any Bankruptcy Law, which shall
(A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in
respect of the Company or any Restricted Subsidiary, (B)
appoint a Custodian of the Company or any Restricted
Subsidiary or for substantially all of any of their
property or (C) order the winding-up or liquidation of its
affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive
days; or
(7) one or more judgments, orders or decrees of any
court or regulatory or administrative agency of competent
jurisdiction for the payment of money in excess of
$3,000,000, either individually or in the aggregate, shall
be entered against the Company or any Restricted
Subsidiary of the Company or any of their respective
properties and shall not be discharged or fully bonded and
there shall have been a period of 60 days after the date
on which any period for appeal has expired and during
which a stay of enforcement of such judgment, order or
decree shall not be in effect; or
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(8) any Guarantee ceases to be in full force and
effect, or any Guarantee is declared to be null and void
and unenforceable or any Guarantee is found to be invalid
or any Guarantor denies its liability under its Guarantee
(other than by reason of release of a Guarantor in
accordance with the terms of this Indenture).
The Trustee shall, within 30 days after receipt of
written notice of the occurrence of any Default by a
Responsible Officer of the Trustee, give to the holders of
Securities notice of such Default; provided that, except in the
case of a Default in the payment of principal of or interest on
any of the Securities, the Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer
of the Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders of Securities.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of
Default specified in clause (5) or (6) above) occurs and is
continuing, then the Trustee or the Holders of not less than
25% in aggregate principal amount of the then outstanding
Securities may declare the unpaid principal of, premium, if
any, and accrued and unpaid interest on, all the Securities
then outstanding to be immediately due and payable, by a notice
in writing to the Company (and to the Trustee, if given by
Holders) specifying the respective Event(s) of Default and that
it is a "notice of acceleration" and upon such declaration such
principal amount, premium, if any, and accrued and unpaid
interest will become immediately due and payable. If an Event
of Default specified in clause (5) or (6) above occurs, all
unpaid principal of, and premium, if any, and accrued and
unpaid interest on, the Securities then outstanding will ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration with
respect to the Securities as described in the preceding
paragraph, the Holders of a majority in principal amount of the
Securities then outstanding may rescind and cancel such
declaration and its consequences (a) if the rescission would
not conflict with any judgment or decree, (b) if all existing
Events of Default have been cured or waived except nonpayment
of principal or interest that has become due solely because of
the acceleration, (c) to the extent the payment of such
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interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (d) if
the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and
advances and (e) in the event of the cure or waiver of an Event
of Default of the type described in clauses (5) and (6) of the
description of Events of Default above, the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on
the Securities or to enforce the performance of any provision
of the Securities, this Indenture or any Guarantee.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of not
less than a majority in principal amount of the outstanding
Securities by written notice to the Trustee may waive an
existing Default or Event of Default and its consequences,
except a Default in the payment of principal of, premium or
interest on any Security as specified in clauses (1) and (2) of
Section 6.01. The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of
such consents upon which the Trustee may conclusively rely.
When a Default or Event of Default is waived, it is cured and
ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal
amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on it. Subject to Section 7.01, however, the Trustee
may refuse to follow any direction that conflicts with any law
or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Securityholder, or that
may involve the Trustee in Personal liability; provided that
the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows
any direction pursuant to this Indenture, the Trustee shall be
entitled to indemnification from the Company satisfactory to it
in its sole discretion against any loss, liability, cost or
expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with
respect to this Indenture, the Securities or any Guarantee
unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holder or Holders of at least 25% in
principal amount of the outstanding Securities make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request
within 30 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(5) during such 30-day period the Holder or Holders
of a majority in principal amount of the outstanding
Securities do not give the Trustee a direction which, in
the opinion of the Trustee, is inconsistent with the
request.
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A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a
preference or priority over such other Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of
principal of, premium and interest on a Security, on or after
the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal,
premium or interest specified in clause (1) or (2) of
Section 6.01 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for
the whole amount of principal and accrued interest remaining
unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, legal fees, disbursements
and advances of the Trustee, its agents, nominees, custodians,
counsel, accountants and experts) and the Securityholders
allowed in any judicial proceedings relating to the Company,
its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other securities
or property payable or deliverable upon conversion or exchange
of the Securities or on any such claims and to distribute the
same, and any Custodian in any such judicial proceedings is
hereby authorized by each Securityholder 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 Securityholders,
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to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, legal fees, disbursements and advances
of the Trustee, its agents, nominees, custodians and counsel,
and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property
pursuant to this Article Six, it shall pay out the money or
property in the following order:
First: to the Trustee for amounts due under
Section 7.07;
Second: if the Holders are forced to proceed against
the Company, a Guarantor or any other obligor on the
Securities directly without the Trustee, to Holders for
their collection costs;
Third: to Holders for amounts due and unpaid on the
Securities for principal, premium and interest, ratably,
without preference or priority of any kind, according to
the amounts due and payable on the Securities for
principal, premium and interest, respectively; and
Fourth: to the Company or any Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Company, may
fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in
its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including
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reasonable attorneys' fees and expenses, against any
party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by a Holder or Holders of more than 10% in principal amount of
the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing and a Responsible Officer of the Trustee receives
written notice that such Event of Default has occurred, 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.
Subject to such provisions, the Trustee shall be under no
obligation to exercise any of its rights or powers under this
Indenture at the request of any of the holders of Securities,
unless they shall have offered to the Trustee security and
indemnity satisfactory to it in its sole discretion.
(b) Except during the continuance of an Event of
Default actually known to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties as
are specifically set forth herein and no others and no
implied covenants or obligations shall be read into this
Indenture against the Trustee.
(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 and such other
documents delivered to it pursuant to Section 11.04 hereof
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture.
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(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of
the Trustee, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(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 take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that
repayment of such funds is not assured to it or it does not
receive an indemnity satisfactory to it in its sole discretion
against such risk, liability, loss, fee or expense which might
be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to this Section 7.01.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be
protected in acting or refraining from acting 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.
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(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate and an Opinion of
Counsel, which shall conform to the provisions of Section
11.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys,
agents, custodians and nominees and shall not be
responsible for the misconduct or negligence of any
attorney, agent, custodian or nominee (other than such a
Person who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
reasonably believes to be authorized or within its rights
or powers.
(e) The Trustee may consult with counsel and the
advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(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) The Trustee shall not be deemed to have notice
or knowledge of any matter unless a Responsible Officer
assigned to and working in the Trustee's Corporate Trust
Administration has actual knowledge thereof or unless
written notice thereof is received by the Trustee,
attention: Corporate Trust and Agency Division and such
notice references the Securities generally, the Company or
this Indenture.
SECTION 7.03. 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, its Subsidiaries, any Guarantors and
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their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Securities, 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 of the Company in this
Indenture or any document issued in connection with the sale of
Securities, the Guarantees or any statement in the Securities
other than the Trustee's certificate of authentication. The
Trustee makes no representations with respect to the
effectiveness or adequacy of this Indenture. The Trustee shall
not be responsible for independently ascertaining or
maintaining such validity, if any, and shall be fully protected
in relying upon certificates and opinions delivered to it in
accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is
continuing and a Responsible Officer of the Trustee receives
actual notice of such event, the Trustee shall mail to each
Securityholder, as their names and addresses appear on the
Securityholder list described in Section 2.05, notice of the
uncured Default or Event of Default within 30 days after the
Trustee receives such notice. Except in the case of a Default
or an Event of Default in payment of principal of, premium or
interest on, any Security, including the failure to make
payment on (i) the Change of Control Payment Date pursuant to a
Change of Control Offer or (ii) the Excess Proceeds Payment
Date pursuant to an Asset Sale Offer, the Trustee may withhold
the notice if and so long as the Board of Directors, the
executive committee, or a trust committee of directors, of the
Trustee in good faith determines that withholding the notice is
in the interest of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of
this Indenture until this Indenture is qualified under the TIA,
and, until such qualification, this Indenture shall be
construed as if this Section 7.06 were not contained herein.
Within 60 days after each May 15 of each year beginning
with 1997, the Trustee shall, to the extent that any of
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the events described in TIA { 313(a) occurred within the
previous twelve months, but not otherwise, mail to each
Securityholder a brief report dated as of such date that
complies with TIA { 313(a). The Trustee also shall comply with
TIA {{ 313(b), 313(c) and 313(d).
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 securities exchange, if any, on which the
Securities are listed.
The Company shall notify a Responsible Officer of the
Trustee if the Securities become listed on any securities
exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company and the Guarantors, on a joint and
several basis, shall pay to the Trustee from time to time
reasonable compensation for its services hereunder. The
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and
the Guarantors, on a joint and several basis, shall reimburse
the Trustee upon request for all reasonable disbursements,
expenses and advances (including reasonable fees and expenses
of counsel) incurred or made by it in addition to the
compensation for its services, except any such disbursements,
expenses and advances as may be attributable to the Trustee's
negligence or bad faith. Such expenses shall include the
reasonable compensation, legal fees, disbursements and expenses
of the Trustee and its agents, accountants, experts, nominees,
custodians and counsel and any taxes or other expenses incurred
by a trust created pursuant to Section 8.01 hereof.
The Company and the Guarantors, on a joint and
several basis, shall indemnify the Trustee and its agents,
directors, officers and employees and each predecessor trustee
for, and hold it harmless against, any loss, liability or
expense incurred by the Trustee without negligence or bad faith
on its part arising out of or in connection with the
administration of this trust and its duties under this
Indenture, including the reasonable expenses and attorneys'
fees of defending itself against any claim of liability arising
hereunder. The Trustee shall notify the Company promptly of
any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations
hereunder. The Company
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shall defend the claim and the Trustee shall
[cooperate in the defense (and may employ its own counsel)
at the Company's expense. The Company need not pay for any
settlement made without its written consent, which consent
shall not be unreasonably withheld or delayed. The Company
need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation
of this Indenture by the Trustee if such violation arose from
the Trustee's negligence or bad faith.
To secure the Company's and the Guarantors' payment
obligations in this Section 7.07, the Trustee shall have a
senior claim prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as
Trustee.
When the Trustee incurs expenses or renders services
after an Event of Default specified in clause (5) or (6) of
Section 6.01 occurs, the expenses (including the reasonable
fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the
status of the Holders in a proceeding under any Bankruptcy Law
and are intended to constitute expenses of administration under
any Bankruptcy Law. The Company's and the Guarantors'
obligations under this Section 7.07 and any claim arising
hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's and the Guarantors'
obligations pursuant to Article Eight and any rejection or
termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying
the Company in writing. The Holders of a majority in 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:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
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(4) the Trustee becomes legally incapable of acting
with respect to its duties hereunder.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall notify each Holder of such event and shall promptly
appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the 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, the retiring Trustee
shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided
in Section 7.07, 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; provided, however, that no Trustee under this
Indenture shall be liable for any act or omission of any
successor Trustee. A successor Trustee shall mail notice of
its succession to each Securityholder.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor Trustee.
Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee and
the Company shall pay to any such replaced or removed Trustee
all amounts owed under Section 7.07 upon such replacement or
removal.
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SECTION 7.09. 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. In
case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirement of TIA {{ 310(a)(1) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA
{ 310(b); provided, however, that there shall be excluded from
the operation of TIA { 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if the requirements for such exclusion set forth
in TIA { 310(b)(1) are met.
SECTION 7.11. Preferential Collection of
Claims Against Company.___
The Trustee, in its capacity as Trustee hereunder,
shall comply with TIA { 311(a), excluding any creditor
relationship listed in TIA { 311(b). A Trustee who has
resigned or been removed shall be subject to TIA { 311(a) to
the extent indicated.
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ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board
Resolution, at any time, with respect to the Securities, elect
to have either paragraph (b) or paragraph (c) below be applied
to the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (b), the Company
shall be deemed to have been released and discharged from its
obligations with respect to the 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 the Sections and matters
under this Indenture referred to in (i) and (ii) below, and to
have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned,
except for the following, which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of the
Holders of outstanding Securities to receive payment in respect
of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's
obligations to issue temporary Securities, register the
transfer or exchange of any Securities, replace mutilated,
destroyed, lost or stolen Securities and maintain an office or
agency for payments in respect of the Securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustee,
and (iv) the defeasance provisions of this Indenture. The
Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (c), the Company
shall be released and discharged from its obligations under any
covenant contained in Article Five and in Sections 4.03 through
4.24 with respect to the outstanding Securities on and after
the date the conditions set forth below are satisfied
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(hereinafter, "Covenant Defeasance"), and the Securities shall
thereafter be deemed to be not "outstanding" for the purpose 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 and any Guarantor may omit to comply
with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01(3), nor shall
any event referred to in Section 6.01(4) or (7) thereafter
constitute a Default or an Event of Default thereunder but,
except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to
application of either paragraph (b) or paragraph (c) above to
the outstanding Securities:
(1) The Company shall have irrevocably deposited in
trust with the Trustee, pursuant to an irrevocable trust
and security agreement in form and substance satisfactory
to the Trustee, U.S. Legal Tender or direct non-callable
obligations of, or non-callable 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 ("U.S. Government
Obligations") maturing as to principal and interest in
such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and
principal and after payment of all Federal, state and
local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a
nationally recognized firm of Independent public
accountants expressed in a written certification thereof
(in form and substance reasonably satisfactory to the
Trustee) delivered to the Trustee, to pay the principal
of, premium, if any, and interest on all the outstanding
Securities on the dates on which any such payments are due
and payable in accordance with the terms of this Indenture
and of the Securities;
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(2) Such deposits shall not cause the Trustee to
have a conflicting interest as defined in and for purposes
of the TIA;
(3) The Trustee shall have received Officers'
Certificates stating that No Default of Event of Default
or event which with notice or lapse of time or both would
become a Default or an Event of Default with respect to
the Securities shall have occurred and be continuing on
the date of such deposit or, insofar as Section 6.01(5) or
(6) is concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed
satisfied until the expiration of such period);
(4) The Trustee shall have received Officers'
Certificates stating that such deposit will not result in
a Default under this Indenture or a breach or violation
of, or constitute a default under, any other material
instrument or agreement to which the Company or any of its
Subsidiaries is a party or by which it or its property is
bound;
(5) (i) In the event the Company elects paragraph
(b) hereof, the Company shall deliver to the Trustee an
Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee to the effect that (A) the
Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the
Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall state that
Holders of the Securities will not recognize income gain
or loss for Federal income tax purposes as a result of
such deposit and the defeasance contemplated hereby and
will be subject to Federal income taxes in the same manner
and at the same times as would have been the case of such
deposit and defeasance had not occurred, or (ii) in the
event the Company elects paragraph (c) hereof, the Company
shall deliver to the Trustee an Opinion of Counsel, in form
and substance reasonably satisfactory to the Trustee to the
effect that, Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit and the defeasance contemplated
hereby and will be subject to Federal income tax in the
same amounts and in the same manner and at the same
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times as would have been the case if such deposit and
defeasance had not occurred;
(6) The deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an
"investment company" under the Investment Company Act of
1940, as amended;
(7) The Company shall have delivered to the Trustee
an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that the deposit
under clause (1) was not made by the Company, a Guarantor
or any Subsidiary of the Company with the intent of
defeating, hindering, delaying or defrauding any other
creditors of the Company, a Guarantor, or any Subsidiary
of the Company or others;
(8) The Company shall have delivered to the Trustee
an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that, (A) the
trust funds will not be subject to the rights of holders
of Indebtedness of the Company or any Guarantor other than
the Securities and (B) assuming no intervening bankruptcy
of the Company between the date of deposit and the 91st
day following the deposit and that no Holder of Securities
is an insider of the Company, after the passage of 90 days
following the deposit, the trust funds will not be subject
to any applicable bankruptcy, insolvency, reorganization
or similar law affecting creditors' rights generally; and
(9) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent specified herein
relating to the defeasance contemplated by this Section
8.01 have been complied with; provided, however, that no
deposit under clause (1) above shall be effective to
terminate the obligations of the Company under the
Securities or this Indenture prior to 90 days following
any such deposit.
In the event all or any portion of the Securities are
to be redeemed through such irrevocable trust, the Company must
make arrangements satisfactory to the Trustee, at the time of
such deposit, for the giving of the notice of such redemption
or redemptions by the Trustee in the name and at the expense of
the Company.
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SECTION 8.02. Satisfaction and Discharge.
In addition to the Company's rights under Section
8.01, the Company may terminate all of its obligations under
this Indenture (subject to Section 8.03) when:
(1) all Securities theretofore authenticated and
delivered (other than Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.07) have been delivered to
the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the
Trustee for cancellation (except lost, stolen or destroyed
Securities which have been replaced or paid) have been
called for redemption pursuant to the terms of the
Securities or have otherwise become due and payable and
the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and
interest on the Securities to the date of deposit together
with irrevocable instructions from the Company directing
the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be; and
(3) the Company has paid or caused to be paid all
other sums payable hereunder and under the Securities by
the Company; and
(4) there exists no Default or Event of Default
under this Indenture; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of
this Indenture and of the Securities referred to in Section
8.01 or 8.02, the respective obligations of the Company and the
Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.10, 2.12, 2.13, 4.01, 4.02 and 6.07, Article Seven and
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Sections 8.05, 8.06 and 8.07 shall survive until the Securities
are no longer outstanding, and thereafter the obligations of
the Company and the Trustee under Sections 7.07, 8.05, 8.06 and
8.07 shall survive. Nothing contained in this Article Eight
shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of
Section 8.01 or 8.02 have been satisfied, (ii) the Company has
paid or caused to be paid all other sums payable hereunder by
the Company and (iii) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent referred to in clause (i)
above relating to the satisfaction and discharge of this
Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S.
Government Obligations deposited with it in the irrevocable
trust established pursuant to Section 8.01. The Trustee shall
apply the deposited U.S. Legal Tender or the U.S. Government
Obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the
irrevocable trust agreement established pursuant to Section
8.01, to the payment of principal of and interest on the
Securities. The U.S. Legal Tender or U.S. Government
Obligations so held in trust and deposited with the Trustee in
compliance with Section 8.01 shall not be part of the trust
estate under this Indenture, but shall constitute a separate
trust fund for the benefit of all Holders entitled thereto.
SECTION 8.06. Repayment to the Company or
Guarantors; Unclaimed Money.
Subject to Sections 7.07 and 8.01, the Trustee shall
promptly pay to the Company, or if deposited with the Trustee
by any Guarantor, to such Guarantor, upon receipt by the
Trustee of an Officers' Certificate, any excess money, determined
in accordance with Section 8.01, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company or any
Guarantor, as the case may be, upon receipt by the Trustee or
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the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed
for two years after payment to the Holders is required;
provided, however, that the Trustee and the Paying Agent before
being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified
therein, which shall be at least 2 years from the date of such
publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to
the Company or any Guarantor, as the case may be, Security
holders entitled to money must look solely to the Company for
payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of
the Trustee or Paying Agent with respect to such money shall
thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this
Indenture by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's and each
Guarantor's, if any, obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit
had been made pursuant to this Indenture until such time as the
Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided,
however, that if the Company or the Guarantors, as the case may
be, have made any payment of principal of, premium, if any, or
interest on any Securities because of the reinstatement of
their obligations, the Company or the Guarantors, as the case
may be, shall be, subrogated to the rights of the holders of
such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and any Guarantors (when authorized by
Board Resolutions), and the Trustee, together, may amend or
supplement this Indenture or the Securities without notice to
or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with
Article Five hereof of another Person to the Company or a
Guarantor and the assumption by any such successor of the
covenants of the Company or a Guarantor herein and in the
Securities or a Guarantee, as the case may be;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(4) to make any other change that does not
materially adversely affect the rights of any
Securityholders hereunder; or
(5) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under
the TIA; or
(6) to add or release any Guarantor pursuant to the
terms of this Indenture;
provided that each of the Company and any Guarantors has
delivered to the Trustee an Opinion of Counsel and an Officers'
Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and any
Guarantors (when authorized by Board Resolutions) and the
Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of
the outstanding Securities, may amend or supplement this
Indenture, the Securities and any Guarantees without notice to
any other
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Securityholders. Subject to Section 6.07, the Holder
or Holders of a majority in aggregate principal amount of the
outstanding Securities may waive compliance by the Company with
any provision of this Indenture or the Securities without
notice to any other Securityholder. Without the consent of
each Securityholder affected, however, no amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver
of any provision of this Indenture, the Securities or any
Guarantees;
(2) reduce the rate or change or have the effect of
changing the time for payment of interest, including
default interest, on any Security;
(3) reduce the principal amount, of or premium on
any Security;
(4) change or have the effect of changing the Final
Maturity Date of any Security, change the amount or time
of any payment required by the Securities or reduce the
premium payable upon any redemption of Securities, or
change the time when any such redemption may be made or
otherwise alter the redemption or repurchase provisions
contained in this Indenture or the Securities in a manner
adverse to any Holder;
(5) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of
principal of and interest on such Security on or after the
due date thereof or to bring suit to enforce such payment,
or permitting Holders of a majority in principal amount of
the Securities to waive Defaults or Events of Default;
(6) make any changes in Section 6.04, 6.07 or this
Section 9.02;
(7) make the principal of, premium or the interest
on any Security payable in money other than as provided
for in this Indenture as in effect on the date hereof or
change the place of payment from New York, New York;
(8) affect the ranking of the Securities or any
Guarantee, in each case in a manner adverse to the
Holders;
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(9) amend, modify or change the obligation of the
Company to make or consummate a Change of Control Offer,
an Excess Proceeds Offer or waive any default in the
performance thereof or modify any of the provisions or
definitions with respect to any such offers; or
(10) release any Guarantor from any of its
obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this
Indenture.
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to 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.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified
under the TIA, every amendment, waiver or supplement of this
Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. 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 notice to the Trustee or the Company
received 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
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to consent to any amendment, supplement or waiver. 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 (or their duly designated proxies), and
only those Persons, 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 (10) of
Section 9.02, 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 of and interest on a Security, on or after
the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the
terms of a Security, the Trustee may in accordance with the
specific direction of the Company require the Holder of the
Security to deliver it to the Trustee. 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.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement
or waiver authorized pursuant to this Article Nine; 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 and
an Officers' Certificate each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this
Article Nine is authorized or permitted by this Indenture and
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constituted the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion
of Counsel shall be at the expense of the Company, and the
Trustee shall have a lien under Section 7.07 for any such
expense.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor agrees to unconditionally, jointly and
severally, guarantee to each Holder of a Security authenticated
and delivered by the Trustee, and to the Trustee and its
successors and assigns, that: (i) the principal of, premium
and interest on the Securities will be promptly paid in full
when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise and interest on the
overdue principal, if any, and interest on any interest, to the
extent lawful, of the Securities and all other Obligations of
the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any
Securities or of any such other Obligations, the same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in
Section 10.03. Each Guarantor agrees that its obligations
hereunder 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
waiver or consent by any Holder of the Securities with respect
to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a Guarantor. Each
Guarantor waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations
contained in the Securities, this Indenture and each Guarantee.
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If any Securityholder or the Trustee is required by any court
or otherwise to return to the Company, any Guarantor or any
custodian, trustee, liquidator or other similar official acting
in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such
Securityholder, each Guarantee to the extent theretofore
discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on
the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article Six for the purposes of
each Guarantee notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the
purpose of its Guarantee.
SECTION 10.02. Severability
In case any provision of a Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 10.03. Release of a Guarantor.
If all of the assets of any Guarantor or all of the
Capital Stock of any Guarantor is sold (including by issuance
or otherwise) by the Company or any of its Subsidiaries in a
transaction constituting an Asset Sale, and if the Net Cash
Proceeds from such Asset Sale are used in accordance with
Section 4.12, then such Guarantor (in the event of a sale or
other disposition of all of the Capital Stock of such
Guarantor) or the corporation or other entity acquiring such
assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be
released and discharged of its Obligations under its Guarantee.
The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate and Opinion of
Counsel certifying as to the compliance with this Section
10.03. Any Guarantor not so released remains liable for the
full amount of principal of an interest on the Securities as
provided in this Article Ten.
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SECTION 10.04. Limitation of a Guarantor's Liability.
Each Guarantor and, by its acceptance hereof, each
Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance
for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing
intention, the Holders and each Guarantor irrevocably agree
that the obligations of each Guarantor under its Guarantee
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 Section 10.05, result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent
transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable
contribution among the Guarantors, the Guarantors agree, inter
se, that in the event any payment or distribution is made by
any Guarantor (a "Funding Guarantor") under its Guarantee, such
Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's obligations with respect
to the Securities or any other Guarantor's obligations with
respect to its Guarantee.
SECTION 10.06. Waiver of Subrogation.
Until all Guarantee Obligations are paid in full,
each Guarantor hereby irrevocably waives any claims or other
rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under its Guarantee
and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and
any right to participate in any claim or remedy of any Holder
of Securities against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or
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receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or
security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the
preceding sentence and the Securities shall not have been paid
in full, such amount shall have been deemed to have been paid
to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, in accordance with
the terms of this Indenture. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver
set forth in this Section 10.06 is knowingly made in
contemplation of such benefits.
SECTION 10.07. Execution of Guarantees.
To evidence its guarantee to the Securityholders set
forth in this Article Ten, each Guarantor shall execute a
Guarantee in substantially the form of Exhibit B attached
hereto, which shall be endorsed on each Security ordered to be
authenticated and delivered by the Trustee. Each Guarantor
agrees that its Guarantee set forth in this Article Ten shall
remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guarantee. Each
such Guarantee shall be signed on behalf of each Guarantor by
two Officers, or an Officer and an Assistant Secretary or one
Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by
all requisite corporate actions) shall attest to such Guarantee
prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee,
after the authentication thereof hereunder, shall constitute
due delivery of such Guarantee on behalf of such Guarantor.
Such signatures upon the Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such
officer who shall have signed the Guarantee shall cease to be
such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of
as though the Person who signed the Guarantee had not ceased to
be such officer of the Guarantor.
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SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Guarantor convenants (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 that would prohibit or forgive each such Guarantor
from performing its Guarantee 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 such Guarantor
hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with the duties imposed by operation of Section
318(c) of the TIA, the imposed duties shall control.
SECTION 11.02. Notices.
Any notices or other communications required or
permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by
telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company or a Guarantor:
Spanish Broadcasting System, Inc.
26 West 56th Street
New York, New York 10019
Attention: Joseph Garcia
Facsimile: (212) 541-9200
Telephone: (212) 541-9236
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if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust and Agency Division
Facsimile: (212) 852-1625
Telephone: (212) 852-1661
Each of the Company and the Trustee by written notice
to each other such Person may designate additional or different
addresses for notices to such Person. Any notice or
communication to the Company or a Guarantor or the Trustee,
shall be deemed to have been given or made as of the date so
delivered if Personally delivered; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five
(5) calendar 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
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA
{ 312(b) with other Securityholders with respect to their
rights under this Indenture, the Securities or any Guarantees.
The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA { 312(c).
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SECTION 11.04. Certificate and Opinion
as to Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate, in form and substance
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 complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent
have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture, other than the Officers' Certificate required by
Section 4.08, shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is
necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
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SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may
be made on the next succeeding day that is a Business Day with
the same force and effect as if made on such payment date.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES
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, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto
agrees to submit to the jurisdiction of the courts of the State
of New York in any action or proceeding arising out of or
relating to this Indenture.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of any of the Company or any
of its Subsidiaries or any Guarantor. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or
incorporator, as such, of the Company or any of its
Subsidiaries or any Guarantor shall not have any liability for
any obligations of the Company or any Guarantor under the
Securities, this Indenture or any Guarantee or for any claim
based on, in respect of or by reason of such obligations or
their creations. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the
Securities.
SECTION 11.11. Successors.
All agreements of the Company and any Guarantors in
this Indenture, the Securities and any Guarantees shall bind
their respective successors. All agreements of the Trustee in
this Indenture shall bind its successor.
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SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this
Indenture. Each signed copy or counterpart shall be an
original, but all of them together shall represent the same
agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this
Indenture, in the Securities or in any Guarantee 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.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior
Debt; Guarantees Subordinated to
Guarantor Senior Debt.
The Company and each Guarantor covenants and agrees,
and each Holder of the Securities, by its acceptance thereof,
likewise covenants and agrees, that all Securities and
Guarantees shall be issued subject to the provisions of this
Article Twelve; and each Person holding any Security, whether
upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations
on the Securities and Guarantees by the Company and any
Guarantors shall, to the extent and in the manner herein set
forth, be subordinated and junior in right of payment to the
prior payment in full in cash or Cash Equivalents (or such
payment shall be duly provided for to the satisfaction of the
holders of the Senior Debt and Guarantor Senior Debt, as the
case may be) of all Obligations on the Senior Debt and
Guarantor Senior Debt, as the case may be; that the
subordination is for the benefit of, and shall be enforceable
directly by, the holders of Senior Debt and Guarantor Senior
Debt, as the case may be, and that each holder of Senior Debt
and Guarantor Senior Debt, as the case may be, whether now
outstanding or hereafter
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created, incurred, assumed or guaranteed shall be deemed to have
acquired Senior Debt and Guarantor Senior Debt, as the case may be,
in reliance upon the covenants and provisions contained in this
Indenture.
SECTION 12.02. No Payment on Securities in
Certain Circumstances._____
(a) If any default occurs and is continuing in the
payment when due, whether at maturity, upon any redemption, by
declaration or otherwise, of any principal of, interest on,
unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Senior Debt or
Guarantor Senior Debt, no payment of any kind or character
shall be made by or on behalf of the Company or any other
Person on its or their behalf with respect to any Obligations
on the Securities or to acquire any of the Securities for cash
or property or otherwise. In addition, if a Non-Payment Event
of Default occurs and is continuing with respect to any
Designated Senior Debt, and if the Representative for the
respective issue of Designated Senior Debt gives written notice
of the event of default to the Trustee (a "Default Notice"),
then neither the Company nor any other Person on its behalf
shall (x) make any payment of any kind or character with
respect to any Obligations on the Securities or (y) acquire any
of the Securities for cash or property or otherwise for a
period of time (the "Blockage Period") terminating on the
earliest to occur of (1) the date all events of default have
been cured or waived or shall have ceased to exist and the
Company and the Trustee receive written notice thereof from the
Representative for the applicable issue of Designated Senior
Debt, (2) the Trustee receives written notice from the
Representative for the applicable issue of Designated Senior
Debt terminating the Blockage Period or the benefits of this
sentence are waived by the Representative for the applicable
issue of Designated Senior Debt, (3) the applicable issue of
Designated Senior Debt is discharged or paid in full in cash or
Cash Equivalents or (4) the expiration of the 180-day
consecutive period commencing on the date of the giving of such
Default Notice. Upon the termination of such Blockage Period,
the Company shall (to the extent not otherwise prohibited by
this Article Twelve) promptly resume making all payments on the
Securities, including all payments not made during such
Blockage Period. Notwithstanding any other provisions of this
Indenture, no Non-Payment Event of Default with respect to
Designated Senior Debt which existed or was continuing on the
date of the commencement of any Blockage Period initiated by
the Representative shall be, or be made,
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the basis for the commencement of a second Payment Blockage
Period initiated by the Representative unless such event of
default shall have been cured or waived for a period of not
less than 90 consecutive days. In no event shall a Blockage
Period extend beyond 179 days from the date of the receipt
by the Trustee of the Default Notice (the "Initial Blockage
Period"). Any number of additional Blockage Periods may be
commenced during the Initial Blockage Period; provided, however,
that no such additional Blockage Period shall extend beyond
the Initial Blockage Period. After the expiration of the
Initial Blockage Period, no Blockage Period may be commenced
until at least 180 consecutive days have elapsed from the last
day of the Initial Blockage Period.
(b) In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee or any
Holder when such payment is prohibited by Section 12.02(a),
such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt
or Guarantor Senior Debt, as the case may be, (pro rata to such
holders on the basis of the respective amount of Senior Debt or
Guarantor Senior Debt, as the case may be, held by such
holders) as their respective interests may appear. The Trustee
shall be entitled to rely on information regarding amounts then
due and owing on the Senior Debt or Guarantor Senior Debt, as
the case may be, if any, received from the holders of Senior
Debt (or their Representatives) or Guarantor Senior Debt, as
the case may be, or, if such information is not received from
such holders or their Representatives, from the Company and
only amounts included in the information provided to the
Trustee shall be paid to the holders of Senior Debt or
Guarantor Senior Debt, as the case may be. The Company shall
keep complete and accurate records of the names, addresses and
amounts owed to all holders of Senior Debt and Guarantor Senior
Debt, shall produce such records to the Trustee upon request
and the Trustee shall be absolutely protected in relying on
such records in paying over or delivering moneys pursuant to
this Article Twelve.
Nothing contained in this Article Twelve shall limit
or compromise the right of the Trustee or the Holders to take
any action to accelerate the maturity of the Securities
pursuant to Section 6.02 or to pursue any rights or remedies
hereunder or otherwise; provided, however, that all Senior Debt
and Guarantor Senior Debt thereafter due or declared to be due
shall first be paid in full in cash or Cash Equivalents before
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the Holders are entitled to receive any payment of any kind or
character with respect to Obligations on the Securities.
SECTION 12.03. Payment Over of Proceeds
upon Dissolution, Etc.__
(a) Upon any payment or distribution of assets of
the Company or a Guarantor of any kind or character, whether in
cash, property or securities to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of the Company or
a Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to the
Company or its property or a Guarantor or its property, whether
voluntary or involuntary, all Obligations due or to become due
upon all Senior Debt or Guarantor Senior Debt of such
Guarantor, as the case may be, shall first be paid in full in
cash or Cash Equivalents, or such payment shall be duly
provided for to the satisfaction of the holders of Senior Debt
or Guarantor Senior Debt of such Guarantor, as the case may be,
before any payment or distribution of any kind or character is
made on account of any Obligations on the Securities or the
Guarantee or such Guarantor, or for the acquisition of any of
the Securities for cash or property or otherwise. Upon any
such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution
of assets of the Company or a Guarantor of any kind or
character, whether in cash, property or securities, to which
the Holders or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by
the Company or such Guarantor or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the Holders or by the
Trustee under this Indenture if received by them, directly to
the holders of Senior Debt or Guarantor Senior Debt of such
Guarantor, as the case may be (pro rata to such holders on the
basis of the respective amounts of Senior Debt or Guarantor
Senior Debt of such Guarantor, as the case may be, held by such
holders) or their respective Representatives, or to the trustee
or trustees under any indenture pursuant to which any of such
Senior Debt or Guarantor Senior Debt of such Guarantor, as the
case may be, may have been issued, as their respective
interests may appear, for application to the payment of Senior
Debt or Guarantor Senior Debt of such Guarantor, as the case
may be, remaining unpaid until all such Senior Debt or
Guarantor Senior Debt of such Guarantor, as the case may be,
has been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment,
104
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distribution or provision therefor to or for the holders of
Senior Debt or Guarantor Senior Debt of such Guarantor, as
the case may be.
(b) To the extent any payment of Senior Debt or
Guarantor Senior Debt (whether by or on behalf of the Company
or a Guarantor, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other
similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person,
the Senior Debt or Guarantor Senior Debt or part thereof
originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the
foregoing, any payment or distribution of assets of the Company
or a Guarantor of any kind or character, whether in cash,
property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 12.03(a),
such payment or distribution shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders
of Senior Debt or Guarantor Senior Debt of such Guarantor, as
the case may be (pro rata to such holders on the basis of the
respective amount of Senior Debt or Guarantor Senior Debt of
such Guarantor, as the case may be, held by such holders) or
their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt
or Guarantor Senior Debt of such Guarantor, as the case may be,
may have been issued, as their respective interests may appear,
for application to the payment of Senior Debt or Guarantor
Senior Debt of such Guarantor, as the case may be, remaining
unpaid until all such Senior Debt or Guarantor Senior Debt of
such Guarantor, as the case may be, has been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the
holders of such Senior Debt or Guarantor Senior Debt of such
Guarantor, as the case may be.
(d) The consolidation of the Company with, or the
merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its
assets, to another corporation upon the terms and conditions
provided in
105
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Article Five hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if,
in the event the Company is not the surviving corporation, such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, assume the Company's obligations hereunder
in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid
Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere
in this Indenture shall prevent (i) the Company, except under
the conditions described in Sections 12.02 and 12.03, from
making payments at any time for the purpose of making payments
of principal of and interest on the Securities, or from
depositing with the Trustee any monies for such payments, or
(ii) in the absence of actual knowledge by the Trustee that a
given payment would be prohibited by Section 12.02 or 12.03,
the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of, and
interest on, the Securities to the Holders entitled thereto
unless at least one Business Day prior to the date upon which
such payment would otherwise become due and payable, the
Trustee shall have received the written notice provided for in
Section 12.02(a) or in Section 12.07. The Company shall give
prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash or Cash
Equivalents of all Senior Debt and Guarantor Senior Debt, the
Holders shall be subrogated to the rights of the holders of
Senior Debt and Guarantor Senior Debt to receive payments or
distributions of cash, property or securities of the Company
and such Guarantor applicable to the Senior Debt and Guarantor
Senior Debt until the Securities shall be paid in full; and,
for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt and Guarantor
Senior Debt by or on behalf of the Company or any Guarantor or
by or on behalf of the Holders by virtue of this Article Twelve
which otherwise would have been made to the Holders shall, as
between the Company or any Guarantor and the Holders, be deemed
to be a payment by the Company or any Guarantor to or on
account of the Senior Debt or Guarantor Senior Debt, as the
case may be, it being understood that the provisions of this
Article Twelve are
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and are intended solely for the purpose of defining the relative
rights of the Holders, on the one hand, and the holders of the
Senior Debt or Guarantor Senior Debt, as the case may be, on
the other hand.
SECTION 12.06. Obligations of the Company Unconditional.
Nothing contained in this Article Twelve or elsewhere
in this Indenture or in the Securities or Guarantees is
intended to or shall impair, as among the Company, any
Guarantor, their respective creditors other than the holders of
Senior Debt or Guarantor Senior Debt, and the Holders, the
obligation of the Company and any Guarantors, which is absolute
and unconditional, to pay to the Holders the principal of and
any interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders
and creditors of the Company and any Guarantors other than the
holders of any Senior Debt or Guarantor Senior Debt, nor shall
anything herein or therein prevent the Holder or the Trustee on
its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to
the rights, if any, under this Article Twelve of the holders of
Senior Debt or Guarantor Senior Debt in respect of cash,
property or securities of the Company or any Guarantor received
upon the exercise of any such remedy.
SECTION 12.07. Notice to Trustee.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the
provisions of this Article Twelve. Regardless of anything to
the contrary contained in this Article Twelve or elsewhere in
this Indenture, the Trustee shall not be charged with knowledge
of the existence of any default or event of default with
respect to any Senior Debt or Guarantor Senior Debt or of any
other facts which would prohibit the making of any payment to
or by the Trustee unless and until the Trustee shall have
received notice in writing from the Company, or from a holder
of Senior Debt or Guarantor Senior Debt or a Representative
therefor, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts exist.
107
-99-
In the event that the Trustee determines in good
faith that any evidence is required with respect to the right
of any Person as a holder of Senior Debt or Guarantor Senior
Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee
as to the amounts of Senior Debt or Guarantor Senior Debt held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this
Article Twelve, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 12.08. Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the
Company or Guarantor referred to in this Article Twelve, the
Trustee, subject to the provisions of Article Seven hereof, and
the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution,
delivered to the Trustee or the Holders, for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt or Guarantor
Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Twelve.
SECTION 12.09. Trustee's Relation to Senior Debt
or Guarantor Senior Debt.________
The Trustee and any agent of the Company or the
Trustee shall be entitled to all the rights set forth in this
Article Twelve with respect to any Senior Debt or Guarantor
Senior Debt which may at any time be held by it in it
individual or any other or Guarantor capacity to the same
extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee or any such agent of any of
its rights as such holder.
108
-100-
With respect to the holders of Senior Debt or
Guarantor Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are
specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of Senior
Debt or Guarantor Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Debt or Guarantor
Senior Debt.
Whenever a distribution is to be made or a notice
given to holders or owners of Senior Debt or Guarantor Senior
Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 12.10. Subordination Rights Not Impaired
by Acts or Omissions of the Company
or a Guarantor or Holders of
Senior Debt._______________________
No right of any present or future holders of any
Senior Debt or Guarantor Senior Debt to enforce subordination
as provided herein shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the
Company or a Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the
Company or a Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt or a Guarantor
may, at any time and from time to time, without the consent of
or notice to the Trustee, without incurring responsibility to
the Trustee or the Holders and without impairing or releasing
the subordination provided in this Article Twelve or the
obligations hereunder of the Holders to the holders of the
Senior Debt or Guarantor Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt
or Guarantor Senior Debt, or otherwise amend or supplement in
any manner Senior Debt or Guarantor Senior Debt, or any
instrument evidencing the same or any agreement under which
Senior Debt or Guarantor Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged,
mortgaged otherwise securing Senior Debt or Guarantor Senior
Debt; (iii) release any Person liable in any manner for the
109
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payment or collection of Senior Debt or Guarantor Senior Debt;
and (iv) exercise or refrain from exercising any rights against
the Company or a Guarantor or any other Person.
SECTION 12.11. Holders Authorize Trustee To
Effectuate Subordination of
Securities._________________
Each Holder by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action
as may be necessary or appropriate to effectuate, as between
the holders of Senior Debt or Guarantor Senior Debt and the
Holders, the subordination provided in this Article Twelve, and
appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company or a Guarantor
(whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company or a
Guarantor, the filing of a claim for the unpaid balance of its
Securities and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30
days before the expiration of the time to file such claim or
claims, then the holders of the Senior Debt or Guarantor Senior
Debt or their Representative are or is hereby authorized to
have the right to file and are or is hereby authorized to file
an appropriate claim for and on behalf of the Holders of said
Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt or
Guarantor Senior Debt or their Representative 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 or the holders of Senior Debt or
Guarantor Senior Debt or their Representative to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To
Prevent Events of Default.
The failure to make a payment on account of principal
of or interest on the Securities by reason of any provision of
this Article Twelve will not be construed as preventing the
occurrence of an Event of Default.
110
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SECTION 12.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve will apply to amounts
due to the Trustee pursuant to other Sections in this
Indenture.
111
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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.
SPANISH BROADCASTING SYSTEM, INC.,
a Delaware corporation
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
SPANISH BROADCASTING SYSTEM, INC.,
a New Jersey corporation
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
SPANISH BROADCASTING SYSTEM OF
CALIFORNIA, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
112
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SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
SPANISH BROADCASTING SYSTEM
NETWORK, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
SBS PROMOTIONS, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
113
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ALARCON HOLDINGS, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
SBS OF GREATER NEW YORK, INC.
By: /s/ Raul Alarcon Jr.
--------------------------------------------
Name: Raul Alarcon Jr.
Title: President and Chief Executive Officer
By: /s/ Joseph Garcia
-------------------------------------------
Name: Joseph Garcia
Title: Exec. VP and Chief Financial Officer
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Cynthia Chaney
--------------------------------------------
Name: Cynthia Chaney
Title: Assistant Vice President
114
EXHIBIT A
SPANISH BROADCASTING SYSTEM, INC.
0 14 1/4% Exchange Debentures
due March 15, 2005
CUSIP No.: [ ]
No. [ ] $[ ]
SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Company", which term includes any successor
corporation), for value received promises to pay to [ ]
or registered assigns, the principal sum of $[ ]
Dollars, together with an amount in cash equal to the Current
Market Value on the Maturity Date of the issuable but unissued
Contingent Class A Shares (including Contingent Class A Shares
not issued as a result of an FCC Deferral or an Authorization
Deferral) with respect to such principal sum, on March 15,
2005.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1
Reference is made to the further provisions of this
Security contained herein, which will for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this
Security to be signed manually or by facsimile by its duly
authorized officers.
Dated:
SPANISH BROADCASTING SYSTEM, INC.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
115
-2-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 14 1/4% Exchange Debentures due
2005, described in the within-mentioned Indenture.
Dated: UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By ____________________________
Authorized Signatory
116
-3-
(REVERSE OF SECURITY)
SPANISH BROADCASTING SYSTEM, INC.
14 1/4% Exchange Debentures
due March 15, 2005
1. Interest.
SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown
above. Interest on this Security will accrue and be payable at
a rate of 2% in excess of the rate per annum shown above so
long as a Default or Event of Default shall have occurred and
be continuing. The Company will pay interest semi-annually on
March 15 and September 15 of each year (an "Interest Payment
Date"), commencing the Interest Payment Date following the date
of issuance of this Security. Interest on the Securities will
accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of
issuance of this Security. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding anything herein to the contrary, on
each Interest Payment Date through and including March 15,
2002, the entire amount of the interest payment on the Securi-
ties may be paid, at the option of the Company, in additional
Securities ("Secondary Securities") (valued at 100% of the
principal amount thereof). The Company may, at its option, pay
cash in lieu of issuing any Secondary Security to the extent
the principal amount such Secondary Security is not an integral
multiple of $1,000. The Company shall notify the Trustee of
the Company's election to pay interest in Secondary Securities
not less than 10 days prior to the Record Date for an Interest
Payment Date. On each such Interest Payment Date, the Trustee
shall authenticate Secondary Securities for original issuance
to each holder of Securities on the preceding Record Date, as
shown on the register of the Securities, in the amount required
to pay such interest. For purposes of determining the
principal amount of Secondary Securities to be issued in
payment of interest, the Company shall be entitled to aggregate
as to each holder the principal amount of all Securities
(including Secondary Securities) held of record by such holder.
117
-4-
The Company shall pay interest on overdue principal
from time to time on demand at the rate borne by the Securities
plus 2% and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest (to the
extent not paid in Secondary Securities) in money of the United
States that at the time of payment is legal tender for payment
of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of
Federal funds, or interest by check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment
(including any indirect payment made in Secondary Securities)
to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York
(the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture,
dated as of March 15, 1997 (the "Indenture"), by and among the
Company, the Guarantors named therein and the Trustee.
Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. {{ 77aaa-77bbbb) (the "TIA"), as in effect on the
date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Securities
are subject to all such terms, and Holders of Securities are
referred to
118
-5-
the Indenture and the TIA for a statement of them. The Securities
are limited in aggregate principal amount to $413,930,000.
5. Optional Redemption.
The Securities will be redeemable, at the Company's
option, in whole at any time or in part from time to time on or
prior to March 15, 2000 at a redemption price in cash equal to
105% of the principal amount thereof, plus (x) accrued interest
thereon to the date of redemption and (y) an amount in cash
equal to the Current Market Value on the date the notice of
redemption is mailed of the issuable but unissued Contingent
Class A Shares (including Contingent Class A Shares not issued
as a result of an FCC Deferral or an Authorization Deferral)
with respect to the Securities redeemed. The Securities are
not redeemable after March 15, 2000 and prior to March 15,
2002. On and after March 15, 2002, the Securities will be
redeemable, at the Company's option, in whole at any time or in
part from time to time, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed
during the twelve-month period commencing on March 15 of the
years set forth below, plus, in each case, (x) accrued interest
thereon to the date of redemption and (y) an amount in cash
equal to the Current Market Value on the date the notice of
redemption is mailed of the issuable but unissued Contingent
Class A Shares (including Contingent Class A Shares not issued
as a result of an FCC Deferral or an Authorization Deferral)
with respect to the Securities redeemed:
Year Percentage
2002............................. 107.00%
2003............................. 105.00%
2004 and thereafter.............. 100.00%
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered
address. Securities in denominations of $1,000 or less 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.
119
-6-
If any Security is to be redeemed in part only, the
notice of redemption that relates to such Security shall state
the portion of the principal amount thereof to be redeemed. A
new Security in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and
after the Redemption Date, interest will cease to accrue on
Securities or portions thereof called for redemption.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, the
Company will be required, subject to certain limitations, to
offer to purchase all of the outstanding Securities at a
purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of
repurchase.
8. Limitation on Certain Asset Sales.
The Company is subject to certain conditions,
obligated to make an offer to purchase Securities at 100% of
their principal amount plus accrued and unpaid interest to the
date of repurchase with certain net cash proceeds of certain
sales or other dispositions of assets in accordance with the
Indenture.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without
coupons, in denominations of $1,000 and integral multiples of
$1,000; provided, however, that Secondary Securities and
Securities issued in exchange for the Senior Preferred Stock
may be issued in denominations of less than $1,000 (but not
less than $1.00). A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable
in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any
Securities during a period beginning 15 days before the mailing
of a redemption notice for any Securities or portions thereof
selected for redemption.
120
-7-
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated
as the owner of it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest
remain unclaimed for two years, the Trustee and the Paying Agent
will repay the funds to the Company at its request. After that,
all liability of the Trustee and such Paying Agent with respect
to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations
under the Indenture and the Securities except for certain
provisions thereof, and may be discharged from its obligations
to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount
of the Securities then outstanding, and any existing Default or Event
of Default or compliance with any provision may be waived with the
consent of the Holders of a majority in aggregate principal amount
of the Securities then outstanding. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture
or the Securities to, among other things, cure any ambiguity, defect
or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply
with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other
change that does not materially adversely affect the rights of
any Holder of a Security.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among
other things, limit the ability of the Company and certain of
its subsidiaries to make restricted payments, to incur
indebtedness, to create liens, to issue preferred or other
capital
121
-8-
stock of subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to
consolidate, merge or sell all or substantially all of its assets,
to engage in transactions with affiliates or to engage in certain
businesses. The limitations are subject to a number of important
qualifications and exceptions.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the
Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it
has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event
of Default (except a Default in payment of principal, premium
or interest, including an accelerated payment) if it determines
that withholding notice is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company, its
Subsidiaries, any Guarantor and their respective Affiliates as
if it were not the Trustee.
17. No Recourse Against Others.
No stockholder, director, officer, employee or
incorporator, as such, of the Company shall have any liability
for any obligation of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the
consideration for the issuance of the Securities.
122
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18. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on
this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a
Holder of a Security or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the Securities.
No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
21. Subordination.
The Indebtedness evidenced by the Securities and the
Guarantees is, to the extent and in the manner provided in the
Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Debt and Guarantor Senior
Debt, respectively, and this Security is issued subject to such
provisions. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture
and (c) appoints the Trustee attorney-in-fact of such Holder
for such purpose.
The Company will furnish to any Holder of a Security
upon written request and without charge a copy of the
Indenture. Requests may be made to: Spanish Broadcasting
System, Inc., 26 West 56th Street, New York, New York 10019,
Attn: Joseph Garcia.
123
GUARANTEE
Each undersigned Guarantor (as defined in the
Indenture referred to in the Security upon which this notation
is endorsed and each referred to as the "Guarantor," which term
includes any successor Person under the Indenture)
unconditionally guarantees on a senior subordinated basis as
set forth in Article Twelve of the Indenture (such guarantee by
the Guarantor being referred to herein as a "Guarantee")
(i) the due and punctual payment of the principal of and
interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the
Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or
any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
No stockholder, officer, director or incorporator, as
such, past, present or future, of the Guarantor shall have any
liability under the Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
The Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the
Securities upon which the Guarantee is noted shall have been
executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
SPANISH BROADCASTING SYSTEM, INC.,
a New York corporation
By: ______________________________
Name:
Title:
By: _____________________________
Name:
Title:
124
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SPANISH BROADCASTING SYSTEM OF
CALIFORNIA, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM
NETWORK, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
125
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SBS PROMOTIONS, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
ALARCON HOLDINGS, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
SBS OF GREATER NEW YORK, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
126
ASSIGNMENT FORM
I or we assign and transfer this Security to
___________________________________________________________________________
___________________________________________________________________________
(Print or type name, address and zip code of assignee or
transferee)
____________________________________________________________________________
(Insert Social Security or other identifying number of assignee
or transferee)
and irrevocably appoint ____________________________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated: __________________ Signed: ____________________
(Sign exactly as
name appears on the
other side of this
Security)
Signature Guarantee: __________________________________________________
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
127
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.12 or Section 4.24 of the
Indenture, check the appropriate box:
Section 4.12 [ ] Section 4.24 [ ]
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.12 or
Section 4.24 of the Indenture, state the amount:
$_____________
Date: _______________ Your Signature: ______________________
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee: ___________________________________________________
128
EXHIBIT B
[FORM OF GUARANTEE]
Each undersigned Guarantor (as defined in the
Indenture referred to in the Security upon which this notation
is endorsed and each referred to as the "Guarantor," which term
includes any successor Person under the Indenture)
unconditionally guarantees on a senior subordinated basis as
set forth in Article Twelve of the Indenture (such guarantee by
the Guarantor being referred to herein as a "Guarantee")
(i) the due and punctual payment of the principal of and
interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the
Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or
any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
No stockholder, officer, director or incorporator, as
such, past, present or future, of the Guarantor shall have any
liability under the Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
The Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the
Securities upon which the Guarantee is noted shall have been
executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.