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EXHIBIT 4.5
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INDENTURE
Dated as of June 17, 1997
Between
CAPSTAR BROADCASTING PARTNERS, INC., as Issuer,
and
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
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12% Subordinated Exchange Debentures due 2009
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 11.02
(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) . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . 4.07; 4.09; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . N.A.
(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
317(a)(1) . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . . . 11.01
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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 . . . . . . . . . . . . . 21
Section 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . 22
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . 23
Section 2.04 Paying Agent To Hold Assets in Trust . . . . . . . . . . . . 24
Section 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . . . 24
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . 25
Section 2.07 Replacement Securities . . . . . . . . . . . . . . . . . . . 25
Section 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . . . 26
Section 2.09 Treasury Securities . . . . . . . . . . . . . . . . . . . . 26
Section 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . 27
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 27
Section 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . 28
Section 3.02 Selection of Securities To Be Redeemed . . . . . . . . . . . 29
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . 29
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . 30
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . 30
Section 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . 31
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . 31
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . 31
Section 4.03 Limitation on Restricted Payments . . . . . . . . . . . . . 32
Section 4.04 Corporate Existence . . . . . . . . . . . . . . . . . . . . 36
Section 4.05 Payment of Taxes and Other Claims . . . . . . . . . . . . . 36
Section 4.06 Maintenance of Properties and Insurance . . . . . . . . . . 37
Section 4.07 Compliance Certificate; Notice of Default . . . . . . . . . 37
Section 4.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . . 38
Section 4.09 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.10 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . 39
Section 4.11 Limitation on Transactions with Affiliates . . . . . . . . . 39
Section 4.12 Limitation on Incurrence of Additional Indebtedness
and Issuance of Preferred Stock of Subsidiaries . . . . . . 40
Section 4.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries . . . . . . . . . . . . 41
Section 4.14 Change of Control . . . . . . . . . . . . . . . . . . . . . 42
Section 4.15 Limitation on Asset Sales . . . . . . . . . . . . . . . . . 44
Section 4.16 Limitation on Asset Swaps . . . . . . . . . . . . . . . . . 46
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Merger, Consolidation and Sale of Assets . . . . . . . . . . 46
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . . . 48
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . 48
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 51
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . 51
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 52
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Section 6.07 Rights of Holders To Receive Payment . . . . . . . . . . . 52
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . 52
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . 53
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 54
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 54
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 56
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . 57
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . 57
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . 58
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . 58
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . 59
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . 60
Section 7.09 Successor Trustee by Merger, Etc. . . . . . . . . . . . . . 61
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . 61
Section 7.11 Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's Obligations . . . . . . . . . . 62
Section 8.02 Acknowledgment of Discharge by Trustee . . . . . . . . . . . 65
Section 8.03 Application of Trust Money . . . . . . . . . . . . . . . . . 65
Section 8.04 Repayment to the Company . . . . . . . . . . . . . . . . . . 65
Section 8.05 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . 66
Section 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . 67
Section 9.03 Compliance with TIA . . . . . . . . . . . . . . . . . . . . 68
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . 68
Section 9.05 Notation on or Exchange of Securities . . . . . . . . . . . 69
Section 9.06 Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . 69
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ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 10.01 Securities Subordinate to Senior Debt . . . . . . . . . . . 70
Section 10.02 Payment Over of Proceeds upon Dissolution, etc. . . . . . . 70
Section 10.03 Suspension of Payment When Senior Debt in Default . . . . . 72
Section 10.04 Trustee's Relation to Senior Debt . . . . . . . . . . . . . 73
Section 10.05 Subrogation to Rights of Holders of Senior Debt . . . . . . 74
Section 10.06 Provisions Solely to Define Relative Rights . . . . . . . . 75
Section 10.07 Trustee to Effectuate Subordination . . . . . . . . . . . . 75
Section 10.08 No Waiver of Subordination Provisions . . . . . . . . . . . 76
Section 10.09 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . 77
Section 10.10 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . . . . 78
Section 10.11 Rights of Trustee as a Holder of Senior Debt;
Preservation of Trustee's Rights . . . . . . . . . . . . . . 78
Section 10.12 Article Applicable to Paying Agents . . . . . . . . . . . . 79
Section 10.13 No Suspension of Remedies . . . . . . . . . . . . . . . . . 79
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.03 Communications by Holders with Other Holders . . . . . . . . 80
Section 11.04 Certificate and Opinion as to Conditions Precedent . . . . . 81
Section 11.05 Statements Required in Certificate or Opinion . . . . . . . 81
Section 11.06 Rules by Trustee, Paying Agent, Registrar . . . . . . . . . 82
Section 11.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.09 No Adverse Interpretation of Other Agreements . . . . . . . 82
Section 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . 82
Section 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . 83
Section 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . 83
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Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited Investors
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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INDENTURE, dated as of June 17, 1997, between Capstar
Broadcasting Partners, Inc., a Delaware corporation (the "Company"), and U.S.
Trust Company of Texas, N.A., a national banking association, as trustee (the
"Trustee").
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 12%
Subordinated Exchange Debentures due 2009 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Accreted Value" means, as of any date of determination, the sum
of (i) the initial offering price of each Discount Note and (ii) the portion of
the excess of the principal amount at maturity of each Discount Note over such
initial offering price that shall have been amortized through such date, such
amount to be so amortized on a daily basis and compounded semi-annually on each
February 1 and August 1 at the rate of 12 3/4% per annum from the date of
issuance of the Discount Notes through the date of determination, provided,
that the Accreted Value of the Discount Notes shall be 100% from February 1,
2002 to maturity of the Discount Notes.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquired Preferred Stock" means Preferred Stock of any Person at
the time such Person becomes a Subsidiary of the Company or at the time it
merges or consolidates with the Company or any of its Subsidiaries and not
issued by such Person
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in connection with, or in anticipation or contemplation of, such acquisition,
merger or consolidation.
"Affiliate" means a Person who, directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Company. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be consolidated or merged
with the Company or any Subsidiary of the Company or (ii) the acquisition by
the Company or any Subsidiary of the Company of assets of any Person comprising
a division or line of business of such Person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Subsidiaries (excluding any Sale and Leaseback
Transaction or any pledge of assets or stock by the Company or any of its
Subsidiaries) to any Person other than the Company or a Wholly Owned Subsidiary
of the Company of (i) any Capital Stock of any Subsidiary of the Company or
(ii) any other property or assets of the Company or any Subsidiary of the
Company other than in the ordinary course of business; provided, however, that
for purposes of Section 4.15, Asset Sales shall not include (a) a transaction
or series of related transactions in which the Company or its Subsidiaries
receive aggregate consideration of less than $1,000,000, (b) transactions
permitted under Section 4.16, or (c) transactions covered by Section 5.01.
"Asset Swap" means the execution of a definitive agreement,
subject only to the Federal Communications Commission (the "FCC") approval, if
applicable, and other customary closing conditions, that the Company in good
faith believes will be satisfied, for a substantially concurrent purchase and
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sale, or exchange, of Productive Assets between the Company or any of its
Subsidiaries and another Person or group of affiliated Persons; provided that
any amendment to or waiver of any closing condition that individually or in the
aggregate is material to the Asset Swap shall be deemed to be a new Asset Swap.
"Bankruptcy Law" means Title 11, United States Code or any
similar federal, state or foreign law for the relief of debtors.
"Blockage Period" shall have the meaning provided in Section
10.02.
"Board of Directors" means, with respect to any Person, the Board
of Directors (or any other equivalent governing body) of such Person or any
committee of the Board of Directors of such Person duly authorized, with
respect to any particular matter, to exercise the power of the Board of
Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and (ii) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP, and for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
"Capstar Broadcasting" means Capstar Broadcasting Corporation, a
Delaware corporation.
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"Capstar Radio" means Capstar Radio Broadcasting Partners, Inc.,
a Delaware corporation.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Moody's
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $200,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds that invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group") (whether or not
otherwise in compliance with the provisions of this Indenture), other than to
Hicks Muse, any of its affiliates (excluding Chancellor), officers and
directors or R. Steven Hicks (the "Permitted Holders"); or (ii) a majority of
the board of directors of the Company shall consist of Persons who are not
Continuing Directors; or (iii) the acquisition by any Person or Group (other
than the Permitted Holders) of the power, directly or indirectly, to vote or
direct the voting of securities
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having more than 50% of the ordinary voting power for the election of directors
of the Company.
"Change of Control Date" has the meaning provided in
Section 4.14.
"Change of Control Offer" has the meaning provided in
Section 4.14.
"Change of Control Payment Date" has the meaning provided in
Section 4.14.
"Change of Control Redemption" has the meaning specified in the
form of Security.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangements entered into by the
Company or any of its Subsidiaries designed to protect the Company or any of
its Subsidiaries against fluctuations in the price of commodities actually used
in the ordinary course of business of the Company and its Subsidiaries.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Securities.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable to
extraordinary or nonrecurring gains or losses), (B) Consolidated Interest
Expense and (C) Consolidated Non-Cash Charges, all as determined on a
consolidated basis for such Person and its Subsidiaries in conformity with
GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense of
such Person and its Subsidiaries for such period as determined on a
consolidated basis in
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accordance with GAAP, including, without limitation, (a) any amortization of
debt discount, (b) the net cost under Interest Swap Obligations (including any
amortization of discounts), (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owned
with respect to letters of credit, bankers' acceptance financing or similar
facilities, and (e) all accrued interest and (ii) the interest component of
Capitalized Lease Obligations paid or accrued by such Person and its
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period,
the aggregate net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (a) gains and
losses from Asset Sales (without regard to the $1,000,000 limitation set forth
in the definition thereof) or abandonments or reserves relating thereto and the
related tax effects, (b) items classified as extraordinary or nonrecurring
gains and losses, and the related tax effects according to GAAP, (c) the net
income (or loss) of any Person acquired in a pooling of interests transactions
accrued prior to the date it becomes a Subsidiary of such first referred to
Person or is merged or consolidated with it or any of its Subsidiaries, (d) the
net income of any Subsidiary to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by
contract, operation of law or otherwise, (e) the net income of any Person,
other than a Subsidiary, except to the extent of the lesser of (x) dividends or
distributions paid to such first referred to Person or its Subsidiary by such
Person and (y) the net income of such Person (but in no event less than zero),
and the net loss of such Person shall be included only to the extent of the
aggregate Investment of the first referred to Person or a consolidated
Subsidiary of such Person and (f) any non-cash expenses attributable to grants
or exercises of employee stock options.
"Consolidated Non-Cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Subsidiaries (excluding any such charges
constituting an extraordinary or nonrecurring item) reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
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"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company on the
Issue Date, (ii) was nominated for election or elected to the board of
directors of the Company with the affirmative vote of a majority of the
Continuing Directors who were members of such board of directors at the time of
such nomination or election or (iii) is a representative of a Permitted Holder.
"Credit Facility" means the credit agreement dated February 20,
1997 among the Company, Capstar Radio, Bankers Trust Company, as agent, and the
lenders parties thereto from time to time, as the same may be amended,
supplemented or otherwise modified from time to time, and any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original agent and lenders or another agent or agents or
other lenders and whether provided under the original Credit Facility or any
other credit agreement).
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Subsidiaries against fluctuations in currency
values.
"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.
"Default Notice" shall have the meaning provided in Section
10.02.
"Designated Senior Debt" means (i) Indebtedness under or in
respect of the Credit Facility and (ii) any other Indebtedness constituting
Senior Debt that, at the time of determination, has an aggregate principal
amount of at least $10,000,000 and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"Discharged" has the meaning provided in Section 8.01.
"Discount Notes" means the 12-3/4% Senior Discount Notes due 2009
of the Company.
"Discount Notes Indenture" means that certain indenture dated as
of February 20, 1997, which governs the terms of the Company's Discount Notes.
15
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"Disqualified Capital Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable as the sole option of the holder thereof (except,
in each case, upon the occurrence of a Change of Control), in whole or in part,
on or prior to the final maturity date of the Securities.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
Exchange Date" means that date of initial issuance of the
Securities.
"Exchangeable Preferred Stock" means the 12% Senior Exchangeable
Preferred Stock, par value $.01 per share, of the Company or shares of
Preferred Stock issued in exchange therefor.
"Existing Indenture" means the indenture governing the Existing
Notes dated as of April 21, 1995 by and among the Capstar Radio, as Issuer, the
Subsidiaries of Capstar Radio named therein, as Guarantors, and IBJ Schroder
Bank & Trust Company, as Trustee, as in effect on the Issue Date.
"Existing Notes" means Capstar Radio's 13-1/4% Senior
Subordinated Notes due 2003.
"Financial Monitoring and Oversight Agreements" means,
collectively, (i) the Monitoring and Oversight Agreement between the Company
and Hicks, Muse & Co. Partners, L.P. ("HM Partners") as in effect on the Issue
Date, and (ii) the Financial Advisory Agreement between the Company and
HM Partners, as in effect on the Issue Date.
"Funds" shall have the meaning provided in Section 8.01.
16
-9-
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the Issue Date.
"Hicks Muse" means Hicks, Muse, Tate & Furst Incorporated, a
Texas corporation.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, any liability of such Person (i) for borrowed money,
(ii) evidenced by bonds, debentures, notes or other similar instruments,
(iii) constituting Capitalized Lease Obligations, (iv) incurred or assumed as
the deferred purchase price of property, or pursuant to conditional sale
obligations and title retention agreements (but excluding trade accounts
payable arising in the ordinary course of business), (v) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) for Indebtedness of others guaranteed by such Person,
(vii) for Interest Swap Obligations, Commodity Agreements and Currency
Agreements and (viii) for Indebtedness of any other Person of the type referred
to in clauses (i) through (vii) which is secured by any Lien on any property or
asset of such first referred to Person, the amount of such Indebtedness being
deemed to be the lesser of the value of such property or asset or the amount of
the Indebtedness so secured. The amount of Indebtedness of any Person at any
date shall be the outstanding principal amount of all unconditional obligations
described above, as such amount would be reflected on a balance sheet prepared
in accordance with GAAP, and the maximum liability of such date of such Person
for any contingent obligations described above.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
under any interest rate protection agreement, interest rate future, interest
rate option, interest rate swap, interest rate cap or other interest rate hedge
or arrangement.
17
-10-
"Investment" means (i) any transfer or delivery of cash, stock or
other property of value in exchange for Indebtedness, stock or other security
or ownership interest in any Person by way of loan, advance, capital
contribution, guarantee or otherwise and (ii) an investment deemed to have been
made by the Company at the time any entity which was a Subsidiary of the
Company ceases to be such a Subsidiary in an amount equal to the value of the
loans and advances made, and any remaining ownership interest in, such entity
immediately following such entity ceasing to be a Subsidiary of the Company.
The amount of any non-cash Investment shall be the fair market value of such
Investment, as determined conclusively in good faith by management of the
Company unless the fair market value of such Investment exceeds $2,000,000, in
which case the fair market value shall be determined conclusively in good faith
by the Board of Directors of the Company at the time such Investment is made.
"Issue Date" means the date of original issuance of the
Securities.
"Legal Holiday" has the meaning provided in Section 10.07.
"Leverage Ratio" shall mean the ratio of (i) the aggregate
outstanding amount of Indebtedness of the Company and its Subsidiaries as of
the date of calculation on a consolidated basis in accordance with GAAP
(subject to the terms described in the next paragraph) plus the aggregate
liquidation preference of all outstanding Preferred Stock of the Company's
Subsidiaries (except Preferred Stock issued to the Company or a Wholly Owned
Subsidiary of the Company) on such date less the Accreted Value of the Discount
Notes on such date to (ii) the Consolidated EBITDA of the Company for the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of determination.
For purposes of this definition, (i) the amount of Indebtedness
which is issued at a discount shall be deemed to be the accreted value of such
Indebtedness at the end of the Four Quarter Period, whether or not such amount
is the amount then reflected on a balance sheet prepared in accordance with
GAAP, and (ii) the aggregate outstanding principal amount of Indebtedness of
the Company and its Subsidiaries and the aggregate liquidation preference of
all outstanding Preferred Stock of the Company's Subsidiaries for which such
calculation is made shall be determined on a pro forma basis as if the
18
-11-
Indebtedness and Preferred Stock giving rise to the need to perform such
calculation had been incurred and issued and the proceeds therefrom had been
applied, and all other transactions in respect of which such Indebtedness is
being incurred or Preferred Stock is being issued had occurred, on the last day
of the Four Quarter Period. In addition to the foregoing, for purposes of this
definition, "Consolidated EBITDA" shall be calculated on a pro forma basis
after giving effect to (i) the incurrence of the Indebtedness of such Person
and its Subsidiaries and the issuance of the Preferred Stock of such
Subsidiaries (and the application of the proceeds therefrom) giving rise to the
need to make such calculation and any incurrence (and the application of the
proceeds therefrom) or repayment of other Indebtedness, other than the
incurrence of repayment of Indebtedness pursuant to working capital facilities,
at any time subsequent to the beginning of the Four Quarter Period and on or
prior to the date of determination, as if such incurrence or issuance (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of the Four Quarter Period, (ii) any Asset Sales or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Subsidiaries (including any Person that becomes a Subsidiary as a result of
such Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness or such Person's Subsidiaries issuing Preferred Stock) at any time
on or subsequent to the first day of the Four Quarter Period and on or prior to
the date of determination, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Indebtedness
and the issuance of such Preferred Stock and also including any Consolidated
EBITDA associated with such Asset Acquisition) occurred on the first day of the
Four Quarter Period and (iii) cost savings resulting from employee
terminations, facilities consolidations and closings, standardization of
employee benefits and compensation practices, consolidation of property,
casualty and other insurance coverage and policies, standardization of sales
representation commissions and other contract rates, and reductions in taxes
other than income taxes (collectively, "Cost Savings Measures"), which cost
savings the Company reasonably believes in good faith would have been achieved
during the Four Quarter Period as a result of such Asset Acquisitions
(regardless of whether such cost savings could then be reflected in pro forma
financial statements under GAAP, Regulation S-X promulgated by the Commission
or any other regulation or policy of the Commission), provided that both
(A) such cost savings and Cost Savings Measures were identified
19
-12-
and such cost savings were quantified in an officer's certificate delivered to
the Trustee at the time of the consummation of the Asset Acquisition and such
officer's certificate states that such officer believes in good faith that
actions will be commenced or initiated within 90 days of such Asset Acquisition
to effect such Cost Savings Measures and (B) with respect to each Asset
Acquisition completed prior to the 90th day preceding such date of
determination, actions were commenced or initiated by the Company within 90
days of such Asset Acquisition to effect the Cost Savings Measures identified
in such officer's certificate (regardless, however, of whether the
corresponding cost savings have been achieved). Furthermore, in calculating
"Consolidated Interest Expense" for purposes of the calculation of
"Consolidated EBITDA," (i) interest on Indebtedness determined on a fluctuating
basis as of the date of determination (including Indebtedness actually incurred
on the date of the transaction giving rise to the need to calculate the
Leverage Ratio) and which will continue to be so determined thereafter shall be
deemed to have accrued at fixed rate per annum equal to the rate of interest on
such Indebtedness as in effect on the date of determination and
(ii) notwithstanding (i) above, interest determined on a fluctuating basis, to
the extent such interest is covered by Interest Swap Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Major Asset Sale" means an Asset Sale or series of related Asset
Sales involving assets with a fair market value in excess of $25,000,000.
"Maturity Date" means July 1, 2009.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers fees and
20
-13-
costs reasonably incurred in preparation of any asset or property for sale),
(ii) taxes paid or reasonably estimated to be payable (calculated based on the
combined state, federal and foreign statutory tax rates applicable to the
Company or the Subsidiary engaged in such Asset Sale) and (iii) repayment of
Indebtedness secured by assets subject to such Asset Sale; provided that if the
instrument or agreement governing such Asset Sale requires the transferor to
maintain a portion of the purchase price in escrow (whether as a reserve for
adjustment of the purchase price or otherwise) or to indemnify the transferee
for specified liabilities in a maximum specified amount, the portion of the
cash or Cash Equivalents that is actually placed in escrow or segregated and
set aside by the transferor for such indemnification obligation shall not be
deemed to be Net Cash Proceeds until the escrow terminates or the transferor
ceases to segregate and set aside such funds, in whole or in part, and then
only to the extent of the proceeds released from escrow to the transferor or
that are no longer segregated and set aside by the transferor.
"Net Proceeds Offer" has the meaning provided in Section 4.15.
"New Capstar Radio Indenture" means that certain indenture dated
as of June 17, 1997, which governs the terms of Capstar Radio's 9 1/4% Senior
Subordinated Notes due 2007.
"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.
"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.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer
21
-14-
and either an Assistant Treasurer or an Assistant Secretary of such Person and
otherwise complying with the requirements of Sections 11.04 and 11.05, as they
relate to the making of an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel.
"Paying Agent" has the meaning provided in Section 2.03, except
that, during the continuance of a Default or Event of Default and for the
purposes of Articles Three and Eight and Sections 4.14 and 4.15, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"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" shall have the meaning set forth in the
definition of "Change of Control."
"Permitted Indebtedness" means, without duplication,
(i) Indebtedness outstanding on the Issue Date; (ii) Indebtedness of the
Company or a Subsidiary incurred pursuant to the Credit Facility in an
aggregate principal amount at any time outstanding not to exceed $150 million;
(iii) Indebtedness evidenced by or arising under the Discount Notes and the
Notes Indenture; (iv) Interest Swap Obligations; provided that such Interest
Swap Obligations are entered into to protect the Company from fluctuations in
interest rates of its Indebtedness; (v) additional Indebtedness of the Company
or any of its Subsidiaries not to exceed $20,000,000 in principal amount
outstanding at any time (which amount may, but need not, be incurred under the
Credit Facility); (vi) Refinancing Indebtedness; (vii) Indebtedness owed by the
Company to any Wholly Owned Subsidiary of the Company or by any Subsidiary of
the Company to the Company or any Wholly Owned Subsidiary of the Company;
(viii) guarantees by Subsidiaries of any Indebtedness permitted to be incurred
pursuant to this Indenture; (ix) Indebtedness in respect of performance bonds,
bankers' acceptances and surety or appeal bonds provided by the Company or any
of its Subsidiaries to their customers in the ordinary
22
-15-
course of their business; (x) Indebtedness arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations, or
from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Subsidiaries pursuant to
such agreements, in each case incurred in connection with the disposition of
any business assets or Subsidiaries of the Company (other than guarantees of
Indebtedness or other obligations incurred by any Person acquiring all or any
portion of such business assets or Subsidiaries of the Company for the purpose
of financing such acquisition) in a principal amount not to exceed the gross
proceeds actually received by the Company or any of its Subsidiaries in
connection with such disposition; provided, however, that the principal amount
of any Indebtedness incurred pursuant to this clause (x), when taken together
with all Indebtedness incurred pursuant to this clause (x) and then
outstanding, shall not exceed $15,000,000; and (xi) Indebtedness represented by
Capitalized Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing all or any part
of the purchase price or cost of construction or improvement of property used
in a related business or incurred to refinance any such purchase price or cost
of construction or improvement, in each case incurred no later than 365 days
after the date of such acquisition or the date of completion of such
construction or improvement; provided, however, that the principal amount of
any Indebtedness incurred pursuant to this clause (xi) shall not exceed
$6,000,000 at any time outstanding.
"Permitted Investments" means (i) Investments by the Company or
any Subsidiary of the Company to acquire the stock or assets of any Person (or
Acquired Indebtedness or Acquired Preferred Stock acquired in connection with a
transaction in which such Person becomes a Subsidiary of the Company) engaged
in the broadcast business or businesses reasonably related thereto; provided
that if any such Investment or series of related Investments involves an
Investment by the Company in excess of $5,000,000, the Company is able, at the
time of such investment and immediately after giving effect thereto, to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.12 hereof, (ii) Investments received by the
Company or its Subsidiaries as consideration for a sale of assets,
(iii) Investments by the Company or any Wholly Owned Subsidiary of the Company
in any Wholly Owned Subsidiary of the Company (whether existing on the Issue
Date or created thereafter) or any Person that after such Investments, and as a
result thereof, becomes a Wholly Owned
23
-16-
Subsidiary of the Company and Investments in the Company by any Wholly Owned
Subsidiary of the Company, (iv) cash and Cash Equivalents, (v) Investments in
securities of trade creditors, wholesalers or customers received pursuant to
any plan of reorganization or similar arrangement, (vi) loans or advances to
employees of the Company or any Subsidiary thereof for purposes of purchasing
the Capital Stock of the Company, Capstar Broadcasting or any corporation that,
directly or indirectly, owns all of the Common Stock of Capstar Broadcasting
and other loans and advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Subsidiary, and
(vii) additional Investments in an aggregate amount not to exceed $2,000,000 at
any time outstanding.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Securities) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"pro forma" means, unless otherwise provided herein, 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
promulgated under the Securities Act.
"Proceeds Purchase Date" shall have the meaning provided in
Section 4.15.
"Productive Assets" means assets of a kind used or usable by the
Company and its Subsidiaries in broadcast businesses or businesses reasonably
related thereto, and specifically includes assets acquired through Asset
Acquisitions.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company, Capstar
Broadcasting or any corporation that, directly or indirectly, owns all of the
Common Stock of Capstar Broadcasting, pursuant to an effective registration
24
-17-
statement filed with the Commission in accordance with the Securities Act;
provided, however that, in the case of a Public Equity Offering by Capstar
Broadcasting or any such other corporation, Capstar Broadcasting or such other
corporation contributes to the capital of the Company net cash proceeds in an
amount sufficient to redeem the Securities called for redemption in accordance
with the terms thereof.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Redemption Date" means, with respect to any Securities, the
Maturity Date of such Security or the earlier date on which such Security is to
be redeemed by the Company pursuant to the terms of the Securities.
"Redemption Price" shall have the meaning provided in
Section 3.03.
"Refinancing Indebtedness" means any refinancing by the Company
of Indebtedness of the Company or any of its Subsidiaries incurred in
accordance with Section 4.12 hereof (other than pursuant to clause (iii) or
(iv) of the definition of Permitted Indebtedness) that does not (i) result in
an increase in the aggregate principal amount of Indebtedness (such principal
amount to include, for purposes of this definition, any premiums, penalties or
accrued interest paid with the proceeds of the Refinancing Indebtedness) of
such Person or (ii) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Senior Debt; provided that if, and
for so long as, any Senior Debt lacks such a representative, then the
Representative for such Senior Debt shall at all times constitute the holders
of a majority in outstanding principal amount of such Senior Debt.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock or in options, rights or
warrants to acquire
25
-18-
Qualified Capital Stock) on shares of the Company's Capital Stock, (ii) the
purchase, redemption, retirement or other acquisition for value of any Capital
Stock of the Company, or any warrants, rights or options to acquire shares of
Capital Stock of the Company, other than through the exchange of such Capital
Stock or any warrants, rights or options to acquire shares of any class of such
Capital Stock for Qualified Capital Stock or warrants, rights or options to
acquire Qualified Capital Stock, (iii) the making of any principal payment on,
or the purchase, defeasance, redemption, prepayment, decrease or other
acquisition or retirement for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, of, any Indebtedness of
the Company or its Subsidiaries that is subordinated or junior in right of
payment to the Securities or (iv) the making of any Investment (other than a
Permitted Investment).
"Securities" means the Company's 12% Subordinated Exchange
Debentures due 2009, as amended or supplemented from time to time in accordance
with the terms hereof, that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Secondary Securities" has the meaning specified in the form of
the Security.
"Senior Debt" means the principal of and premium, if any, and
interest on, and any and all other fees, expenses reimbursement obligations and
other amounts due pursuant to the terms of all agreements, documents and
instruments providing for, creating, securing or evidencing or otherwise
entered into in connection with (a) all Indebtedness of the Company owed to
lenders under the Credit Facility, (b) all Indebtedness of the Company under
the Discount Notes, (c) all obligations of the Company with respect to any
Interest Swap Obligations, (d) 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, (e) all other Indebtedness of the
Company which does not provide that it is to rank pari passu with or
subordinate to the Securities and (f) 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
26
-19-
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, and (v) Indebtedness incurred in
violation of this Indenture.
"Senior Exchangeable Preferred Stock" means the Company's 12%
Senior Exchangeable Preferred Stock, par value $.01 per share.
"Significant Subsidiary" means for any Person each Subsidiary of
such Person which (i) for the most recent fiscal year of such Person accounted
for more than 5% of the consolidated net income of such Person or (ii) as of
the end of such fiscal year, was the owner of more than 5% of the consolidated
assets of such Person.
"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person. Except as specifically provided otherwise in this
Indenture, all references to the Company and its consolidated subsidiaries or
to financial information prepared on a consolidated basis in accordance with
GAAP shall be deemed to include the Company and its Subsidiaries as to which
financial statements are prepared on a consolidated basis in accordance with
GAAP and to financial information prepared on such a consolidated basis.
Notwithstanding anything in this Indenture to the contrary, an Unrestricted
Subsidiary shall not be deemed to be a Subsidiary for purposes of this
Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters or,
in the case of a successor trustee,
27
-20-
an officer assigned to the department, division or group performing the
corporate trust work of such successor.
"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 Subsidiary of the Company
created after the Issue Date and so designated by a resolution adopted by the
Board of Directors of the Company, provided that (a) neither the Company nor
any of its other Subsidiaries (other than Unrestricted Subsidiaries) (1)
provides any credit support for any Indebtedness of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Indebtedness) or (2)
is directly or indirectly liable for any Indebtedness of such Subsidiary and
(b) at the time of designation of such Subsidiary, such Subsidiary has no
property or assets (other than de minimus assets resulting from the initial
capitalization of each Subsidiary). The board of directors may designate any
Unrestricted Subsidiary to be a Subsidiary; provided, however, that immediately
after giving effect to such designation (x) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof (y) no Default or Event of Default shall have occurred or
be continuing. Any designation pursuant to this definition by the board of
directors of the Company shall be evidenced to the Trustee by the filing with
the Trustee of a certified copy of the resolution of the Company's Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"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.
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final
28
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maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) which will elapse between such date and the making of such
payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of
such Person of which all the outstanding voting securities (other than
directors' qualifying shares) which normally have the right to vote in the
election of directors are owned by such Person or any Wholly Owned Subsidiary
of such Person.
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 or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them 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 as in effect on the Issue Date;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "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
shall be substantially in the form of Exhibit A hereto. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement thereon. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.02. 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.
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 or position at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
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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 of the liquidation preference of the outstanding
shares of Exchangeable Preferred Stock at the Exchange Date upon receipt of a
written order of the Company in the form of an Officers' Certificate. Such
Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated.
The aggregate principal amount equal to the liquidation preference of the
outstanding shares of Exchangeable Preferred Stock at the Exchange Date may not
exceed such amount except as provided in Section 2.07 and in Section 1 of the
form of Security. Upon the written order of the Company in the form of an
Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name 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 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 initial exchange of the Exchangeable
Preferred Stock for the Securities such that each holder of Exchangeable
Preferred Stock shall receive Securities in a principal amount equal to the
full liquidation preference of the Exchangeable Preferred Stock on the Issue
Date (as specified to the Trustee in the Officers' Certificate delivered
pursuant to this Section 2.02; provided, further, however, that Secondary
Securities may be issued in denominations of less than $1,000 (but not less
than $1.00).
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SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New
York), where (a) Securities 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 to or upon
the Company 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 notice to the Trustee, may have one or more co-
Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent.
The Company may change the Paying Agent or Registrar without notice to any
Holder.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
The Company initially appoints the 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 the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Securities (whether such
assets have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. The Company at
any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, 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
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the Company to the Paying Agent and the completion of any accounting required
to be made hereunder, 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
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee five (5)
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list as of the applicable Record Date and in
such form as the Trustee may reasonably require of the names and addresses of
the Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Section 2.15, when Securities are presented to the
Registrar or a co-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, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; 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 or co-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 or co-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. The
Registrar or co-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 pursuant to
Section 3.03 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 of any Security being redeemed in
part.
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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 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 the Company and the Trustee, to
protect the Company, the Trustee or 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 shall
constitute 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 the principal amount of any Security is paid in accordance
with the provisions of Section 4.01, such Security shall cease to be
outstanding and interest thereon shall cease to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of
the principal, premium and interest due on the Securities payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date
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such Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or an Affiliate shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Securities, of the
aggregate principal amount of such Securities so repurchased or otherwise
acquired.
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 execute, 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,
shall dispose and deliver evidence of disposal of all Securities surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that the Company has
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paid or delivered to the Trustee for cancellation. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
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 the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest to the Persons who are Holders
on a subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers 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 11:00 a.m. New York City time on each Interest Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be.
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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 and the Paying Agent in
writing of the Redemption Date and the principal amount of the Securities to be
redeemed and whether it wants the Trustee to give notice of redemption to the
Holders (at the Company's expense). Such notice must be given at least 60 days
prior to the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee), but shall not be given more than 90 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed at any
time, 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 being redeemed are listed, or, in the absence of such
requirements or if the Securities are not listed on a national securities
exchange, on a pro rata basis.
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 $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 amount of
Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a
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notice of redemption by first class mail to each Holder at its registered
address whose Securities are to be redeemed, with a copy to the Trustee. At
the Company's 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 (the "Redemption Price");
(3) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, the interest, if any, on Securities called for redemption shall
cease 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 upon surrender to the Paying Agent of the Securities
redeemed;
(7) 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 the aggregate principal amount equal to the unredeemed
portion thereof will be issued; and
(8) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
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
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and payable on the Redemption Date and at the Redemption Price. Upon surrender
to the Trustee or Paying Agent, such Securities called for redemption shall be
paid at the Redemption Price.
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 of
all Securities to be redeemed on that date. The Paying Agent shall promptly
return to the Company any U.S. Legal Tender so deposited that is not required
for that purpose, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price or
interest, as the case may be, 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 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 amount of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or cash interest on the Securities shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date U.S. Legal Tender designated for and sufficient to pay the
installment. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required
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to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal, premium or interest payments
hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior 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 10.02.
SECTION 4.03. Limitation on Restricted Payments.
(a) Neither the Company nor any of its Subsidiaries will,
directly or indirectly, make any Restricted Payment if at the time of such
Restricted Payment and immediately after giving effect thereto:
(i) a Default or an Event of Default shall have occurred and
be continuing at the time of or after giving effect to such Restricted
Payment; or
(ii) the Company is not able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof; or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as
determined by the board of directors of the Company in good faith)
exceeds the sum of:
(A) (x) 100% of the aggregate Consolidated EBITDA of
the Company (or, in the event such Consolidated EBITDA shall be a
deficit, minus 100% of such deficit) accrued subsequent to the
Issue Date to the most recent date for which financial
information is available to the Company, taken as one accounting
period, less (y) 1.4 times Consolidated Interest Expense for the
same period, plus
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(B) 100% of the aggregate net proceeds, including the
fair market value of property other than cash as determined by
the board of directors of the Company in good faith, received by
the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale on or subsequent to the Issue
Date of Qualified Capital Stock of the Company (excluding (i) any
net proceeds from issuances and sales financed directly or
indirectly using funds borrowed from the Company or any
Subsidiary of the Company, until and to the extent such borrowing
is repaid, but including the proceeds from the issuance and sale
of any securities convertible into or exchangeable for Qualified
Capital Stock to the extent such securities are so converted or
exchanged and including any additional proceeds received by the
Company upon such conversion or exchange and (ii) any net
proceeds received from issuances and sales that are used to
consummate a transaction described in clauses (2) and (3) of
paragraph (b) below), plus
(C) without duplication of any amount included in
clause (iii)(B) above, 100% of the aggregate net proceeds,
including the fair market value of property other than cash
(valued as provided in clause (iii)(B) above), received by the
Company as a capital contribution on or after the Issue Date,
plus
(D) the amount equal to the net reduction in
Investments (other than Permitted Investments) made by the
Company or any of its Subsidiaries in any Person resulting from
(i) repurchases or redemptions of such Investments by such
Person, proceeds realized upon the sale of such Investment to an
unaffiliated purchaser and repayments of loans or advances or
other transfers of assets by such Person to the Company or any
Subsidiary of the Company or (ii) the redesignation of
Unrestricted Subsidiaries as Subsidiaries (valued in each case as
provided in the definition of "Investment") not to exceed, in the
case of any Subsidiary, the amount of Investments previously made
by the Company or any Subsidiary in such Unrestricted Subsidiary,
which amount was included in the calculation of Restricted
Payments; provided, however, that no amount shall be included
under this clause (D) to the extent it is already included in
Consolidated EBITDA, plus
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(E) the aggregate net cash proceeds received by a
Person in consideration for the issuance of such Person's Capital
Stock (other than Disqualified Capital Stock) that are held by
such Person at the time such Person is merged with and into the
Company in accordance with Section 5.01 subsequent to the Issue
Date; provided, however, that concurrently with or immediately
following such merger the Company uses an amount equal to such
net cash proceeds to redeem or repurchase the Company's Capital
Stock, plus
(F) $5,000,000.
(b) Notwithstanding the foregoing, these provisions will not
prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if such
dividend or distribution would have been permitted on the date of
declaration;
(2) the purchase, redemption or other acquisition or
retirement of any Capital Stock of the Company or any warrants, options
or other rights to acquire shares of any class of such Capital Stock
either (x) solely in exchange for shares of Qualified Capital Stock or
other rights to acquire Qualified Capital Stock or (y) through the
application of the net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of shares of Qualified
Capital Stock or warrants, options or other rights to acquire Qualified
Capital Stock or (z) in the case of Disqualified Capital Stock, solely
in exchange for, or through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of, Disqualified Capital Stock that has a redemption date
no earlier than, and requires the payment of current dividends or
distributions in cash no earlier than, in each case, the Disqualified
Capital Stock being purchased, redeemed or otherwise acquired or
retired;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities either
(x) solely in exchange for shares of Qualified Capital Stock (or
warrants, options or other rights to acquire Qualified Capital Stock),
for shares of Disqualified Capital Stock that have a redemption date no
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earlier than, and require the payment of current dividends or
distributions in cash no earlier than, in each case, the maturity date
and interest payments dates, respectively, of the Indebtedness being
acquired, or for Indebtedness of the Company that is subordinate or
junior in right of payment to the Securities, at least to the extent
that the Indebtedness being acquired is subordinated to the Securities
and has a Weighted Average Life to Maturity no less than that of the
Indebtedness being acquired or (y) through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock (or
warrants, options or other rights to acquire Qualified Capital Stock),
shares of Disqualified Capital Stock that have a redemption date no
earlier than, and require the payment of current dividends or
distributions in cash no earlier than, in each case, the maturity date
and interest payments dates, respectively, of the Indebtedness being
refinanced, or Indebtedness of the Company that is subordinate or junior
in right of payment to the Securities at least to the extent that the
Indebtedness being acquired is subordinated to the Securities and has a
Weighted Average Life to Maturity no less than that of the Indebtedness
being refinanced;
(4) payments by the Company to repurchase Capital Stock or
other securities of the Company, Capstar Broadcasting or any corporation
that, directly or indirectly, owns all of the Common Stock of Capstar
Broadcasting from employees of the Company or any such other corporation
in an aggregate amount not to exceed $5,000,000;
(5) payments to enable the Company or any such other
corporation to redeem or repurchase stock purchase or similar rights in
an aggregate amount not to exceed $500,000;
(6) payments, not to exceed $100,000 in the aggregate, to
enable the Company or any such other corporation to make cash payments
to holders of its Capital Stock in lieu of the issuance of fractional
shares of its Capital Stock;
(7) payments made pursuant to any merger, consolidation or
sale of assets effected in accordance with Section 5.01; provided,
however, that no such payment may be made pursuant to this clause (7)
unless, after giving effect to
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such transaction (and the incurrence of any Indebtedness in connection
therewith and the use of the proceeds thereof), the Company would be
able to incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12 such that after incurring
that $1.00 of additional Indebtedness, the Leverage Ratio would be less
than 6.0 to 1; and
(8) the payments of dividends on the Company's Common Stock
after an initial public offering of Common Stock of the Company, Capstar
Broadcasting or any corporation that, directly or indirectly, owns all
of the Common Stock of Capstar Broadcasting in an annual amount not to
exceed 6.0% of the gross proceeds (before deducting underwriting
discounts and commissions and other fees and expenses of the offering)
received by the Company (through a capital contribution or otherwise)
from shares of Common Stock sold for the account of the Company or any
such other corporation (and not for the account of any stockholder) in
such initial public offering;
provided, further, that in the case of clauses (4), (5), (6), (7) and (8), no
Event of Default shall have occurred or be continuing at the time of such
payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended
pursuant to clauses (1), (4), (5), (6), (7) and (8) shall be included in such
calculation.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall
do or cause to be done all things reasonably necessary to preserve and keep in
full force and effect its corporate or other existence and the corporate or
other existence of each of its Significant Subsidiaries in accordance with the
respective organizational documents of each such Significant Subsidiary and the
material rights (charter and statutory) and franchises of the Company and each
such Significant Subsidiary; provided, however, that the Company shall not be
required to preserve, with respect to itself, any material right or franchise
and, with respect to any of its Significant Subsidiaries, any such existence,
material right or franchise, if the Board of Directors of the Company or such
Significant Subsidiary, as the case may be, shall determine that the
preservation thereof is no longer reasonably necessary or desirable in the
conduct
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of the business of the Company or any such Significant Subsidiary.
SECTION 4.05. 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 (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that there shall not be required to be paid or
discharged any such tax, assessment or charge, the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision has been made or where the failure to effect
such payment or discharge is not adverse in any material respect to the
Holders.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its
Subsidiaries to, maintain its material properties in normal condition (subject
to ordinary wear and tear) and make all reasonably necessary repairs, renewals
or replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Subsidiaries;
provided, however, that nothing in this Section 4.06 shall prevent the Company
or any of its Subsidiaries from discontinuing the operation and maintenance of
any of its properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of the Company or the Subsidiary, as the
case may be, no longer reasonably necessary in the conduct of their respective
businesses.
(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the reasonable, good
faith opinion of the Company, are reasonably adequate and appropriate for the
conduct of the business of the Company and such Subsidiaries.
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SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an officers' certificate (signed by
the principal executive officer, principal financial officer or principal
accounting officer) stating that a review of its activities and the activities
of its Subsidiaries during the preceding fiscal year 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 has
kept, observed, performed and fulfilled each and every such obligation and no
Default or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and 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.
(b) The annual financial statements delivered to the Trustee
pursuant to Section 4.09 shall be accompanied by a written report of the
Company's independent accountants that in conducting their audit of the
financial statements which are a part of such annual report or such annual
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 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 accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Securities are outstanding (i) if
any Default or Event of Default has occurred and is continuing or (ii) if any
Holder seeks to exercise any remedy hereunder with respect to a claimed Default
under this Indenture or the Securities, the Company shall promptly deliver to
the Trustee by registered or certified mail or by telegram, telex or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action.
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SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its
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 are not in the
aggregate reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.09. Reports.
So long as any of the Securities are outstanding, the Company
will provide to the holders of Securities and file with the Commission copies
of the annual reports and of the information, documents, and other reports that
the Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act regardless of whether the Company is
then obligated to file such reports.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay 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, premium or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the obligations 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 4.11. Limitations on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, enter into or permit to exist any
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transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of any of its Affiliates (other than transactions between the Company
and a Wholly Owned Subsidiary of the Company or among Wholly Owned Subsidiaries
of the Company) (an "Affiliate Transaction"), other than Affiliate Transactions
on terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction on an arm's-length basis from a Person
that is not an Affiliate; provided, however, that for a transaction or series
of related transactions involving value of $2,000,000 or more, such
determination will be made in good faith by a majority of the members of the
board of directors of the Company and by a majority of the disinterested
members of the board of directors of the Company, if any; provided, further,
that for a transaction or series of related transactions involving value of
$10,000,000 or more, the board of directors of the Company has received an
opinion from a nationally recognized investment banking firm that such
Affiliate Transaction is fair, from a financial point of view, to the Company
or such Subsidiary. The foregoing restrictions will not apply to
(1) reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder, (2) any obligation of the Company under
the Monitoring and Oversight Agreements (provided that each amendment of any of
the foregoing agreements shall be subject to the limitations of this covenant)
or any employment, noncompetition or confidentiality agreement with any officer
of the Company, (3) reasonable and customary investment banking, financial
advisory, commercial banking and similar fees and expenses paid to BT
Securities Corporation and its Affiliates, (4) any Restricted Payment permitted
to be made pursuant to Section 4.03, (5) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Company, (6) loans or advances to
employees in the ordinary course of business of the Company or any of its
Subsidiaries consistent with past practices, (7) payments made in connection
with any acquisitions or dispositions by the Company and its Subsidiaries which
acquisitions and dispositions are disclosed in the Offering Memorandum,
including fees to Hicks Muse, and (8) the issuance of Capital Stock of the
Company (other than Disqualified Capital Stock).
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SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness and Issuance of Preferred
Stock of Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable, contingently or otherwise, with
respect to (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness) and the Company's Subsidiaries will not issue any Preferred Stock
(except Preferred Stock issued to the Company or a Wholly Owned Subsidiary of
the Company); provided, however, that the Company and its Subsidiaries may
incur Indebtedness and the Company's Subsidiaries may issue shares of Preferred
Stock if, in either case, the Company's Leverage Ratio at the time of
incurrence of such Indebtedness or the issuance of such Preferred Stock, as the
case may be, after giving pro forma effect to such incurrence or issuance as of
such date and to the use of proceeds therefrom is less than 7.0 to 1.
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, create or otherwise cause to permit to exist or become effective,
by operation of the charter of such Subsidiary or by reason of any agreement,
instrument, judgement, decree, rule, order, statute or governmental regulation,
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its Capital Stock; (b) make loans
or advances or pay any Indebtedness or other obligation owed to the Company or
any of its Subsidiaries; or (c) transfer any of its property or assets to the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law, (2) this Indenture, (3) customary
non-assignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary, (4) any instrument governing Acquired Indebtedness
or Acquired Preferred Stock, which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired, (5) agreements
existing on the Issue Date (including the Credit Facility, the Existing
Indenture and the New Capstar Radio Indenture) as such agreements are from time
to time in effect; provided, however, that any amendments or modifications of
such agreements that affect the encumbrances or restrictions of the types
subject to this Section 4.13 shall
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not result in such encumbrances or restrictions being less favorable to the
Company in any material respect, as determined in good faith by the board of
directors of the Company, than the provisions as in effect before giving effect
to the respective amendment or modification, (6) any restriction with respect
to such a Subsidiary imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition, (7) an agreement
effecting a refinancing, replacement or substitution of Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2), (4) or
(5) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such refinancing, replacement or substitution
agreement are not less favorable to the Company in any material respect as
determined in good faith by the board of directors of the Company than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4) or (5) above, (8) any agreement or charter
provision evidencing Indebtedness or Preferred Stock permitted under this
Indenture; provided, however, that the provisions relating to such encumbrance
or restriction contained in such agreement or charter provision are not less
favorable to the Company in any material respect as determined in good faith by
the board of directors of the Company than the provisions relating to such
encumbrance or restriction contained in this Indenture, or (9) restrictions on
the transfer of assets subject to any Lien imposed by the holder of such Lien.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each holder
will have the right to require that the Company purchase all or a portion of
such holder's Securities pursuant to the offer described in paragraph (b) below
(the "Change of Control Offer"), at a purchase price equal to 101% of the
principal amount thereof, plus, without duplication, all accrued and unpaid
interest, if any, to the Change of Control Payment Date. Prior to the mailing
of the notice referred to below, but in any event within 30 days following the
date on which the Company becomes aware that a Change of Control has occurred,
the Company covenants to (i) repay in full all Indebtedness under the Credit
Agreement (and terminate all commitments thereunder) and any other agreement
relating to Indebtedness that would prohibit the Change of Control Offer or
offer to repay in full all such Indebtedness (and terminate all such
commitments) and repay the Indebtedness owed to (and terminate the commitments
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of) each lender that has accepted such offer or (ii) obtain the requisite
consents under the Credit Facility and any other agreement governing such other
Indebtedness to permit the repurchase of the Securities as provided below. The
Company will first comply with the covenant in the preceding sentence before it
will be required to purchase the Securities pursuant to the provisions
described below; provided that the Company's failure to comply with the
covenant described in the preceding sentence shall constitute an Event of
Default described in Section 6.01(3) hereof.
(b) Within 30 days following the date on which the Company
becomes aware that a Change of Control has occurred (the "Change of Control
Date"), the Company shall send, by first-class mail, postage prepaid, a notice
to each holder of Securities, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control Offer. Such notice shall state,
among other things:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Securities validly tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no earlier than
30 days nor later than 45 days from the date such notice is mailed,
other than as may be required by law) (the "Change of Control Payment
Date");
(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 Change of
Control Offer shall cease to accrete or accrue interest, as the case may
be, after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender the
Security, properly endorsed, to the paying agent and registrar for the
Securities at the address specified in the notice prior to the close of
business on the business day prior to the Change of Control Payment
Date;
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(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than five Business Days prior to
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 the Holder 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 circumstances and relevant facts regarding such Change
of Control.
(c) On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions thereof (in
integral multiples of $1,000) validly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient
to pay the purchase price of all Securities so tendered 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 out of the funds deposited
with the Paying Agent in accordance with the preceding sentence. The Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered.
Upon the payment of the purchase price for the Securities accepted for
purchase, the Trustee shall return the Securities purchased to the Company for
cancellation. Any amounts remaining after the purchase of Securities pursuant
to a Change of Control Offer shall be returned within three Business Days by
the Trustee to the Company.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act to the extent applicable in connection with the
purchase of the Securities pursuant to a Change of Control Offer.
(e) Paragraphs (a)-(d) of this Section 4.14 notwithstanding,
the Company shall not be required to make a Change of Control Offer if,
instead, the Company elects to effect a
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Change of Control Redemption in compliance with the requirements listed on the
Securities in Exhibit A hereof.
SECTION 4.15. Limitation on Asset Sales.
(a) Neither the Company nor any of its Subsidiaries will
consummate an Asset Sale unless (i) the Company or the applicable Subsidiary,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the fair market value of the assets sold or otherwise disposed
of (as determined in good faith by management of the Company or, if such Asset
Sale involves consideration in excess of $5,000,000, by the board of directors
of the Company, as evidenced by a board resolution), (ii) at least 75% of the
consideration received by the Company or such Subsidiary, as the case may be,
from such Asset Sale is in cash or Cash Equivalents (other than in the case
where the Company is exchanging all or substantially all the assets of one or
more broadcast businesses operated by the Company (including by way of the
transfer of capital stock) for all or substantially all the assets (including
by way of the transfer of capital stock) constituting one or more broadcast
businesses operated by another Person, in which event the foregoing requirement
with respect to the receipt of cash or Cash Equivalents shall not apply) and is
received at the time of such disposition and (iii) upon the consummation of an
Asset Sale, the Company applies, or causes such Subsidiary to apply, such Net
Cash Proceeds within 180 days of receipt thereof, either (A) to repay any
Senior Debt of the Company or any Indebtedness of a Subsidiary of the Company
(and, to the extent such Senior Debt relates to principal under a revolving
credit or similar facility, to obtain a corresponding reduction in the
commitments thereunder), (B) to reinvest, or to be contractually committed to
reinvest pursuant to a binding agreement, in Productive Assets and, in the
latter case, to have so reinvested within 360 days of the date of receipt of
such Net Cash Proceeds or (C) to purchase Securities tendered to the Company
for purchase at a price equal to 100% of the principal amount thereof plus
accrued interest thereon, if any, to the date of purchase pursuant to an offer
to purchase made by the Company as set forth below (a "Net Proceeds Offer");
provided, however, that the Company may defer making a Net Proceeds Offer until
the aggregate Net Cash Proceeds from Asset Sales not otherwise applied in
accordance with this Section 4.15 equal or exceed $5,000,000.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds
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Offer will be mailed, by first class mail, to holders of Securities not more
than 180 days after the relevant Asset Sale or, in the event the Company or a
Subsidiary has entered into a binding agreement as provided in subsection
(a)(iii)(B) above, within 180 days following the termination of such agreement
but in no event later than 360 days after the relevant Asset Sale. Such notice
will specify, among other things, the purchase date (which will be no earlier
than 30 days nor later than 45 days from the date such notice is mailed, except
as otherwise required by law) and will otherwise comply with the procedures set
forth in this Indenture. Upon receiving notice of the Net Proceeds Offer,
holders of Securities may elect to tender their Securities in whole or in part
in integral multiples of $1,000. To the extent holders properly tender
Securities in an amount exceeding the Net Proceeds Offer, Securities of
tendering holders will be repurchased on a pro rata basis (based upon the
principal amount tendered). To the extent that the aggregate principal amount
of Securities tendered pursuant to any Net Proceeds Offer is less than the
amount of Net Cash Proceeds subject to such Net Proceeds Offer, the Company may
use any remaining portion of such Net Cash Proceeds not required to fund the
repurchase of tendered Securities for any purposes otherwise permitted by this
Indenture. Upon the consummation of any Net Proceeds Offer, the amount of Net
Cash Proceeds subject to any future Net Proceeds Offer from the Asset Sales
giving rise to such Net Cash Proceeds shall be deemed to be zero.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act to the extent applicable in connection with the repurchase of
Securities pursuant to a Net Proceeds Offer.
SECTION 4.16. Limitation on Asset Swaps.
The Company will not, and will not permit any Subsidiary to,
engage in any Asset Swaps, unless: (i) at the time of entering into such Asset
Swap and immediately after giving effect to such Asset Swap, no Default or
Event of Default shall have occurred or be continuing or would occur as a
consequence thereof, (ii) in the event such Asset Swap involves an aggregate
amount in excess of $2,000,000, the terms of such Asset Swap have been approved
by a majority of the members of the board of directors of the Company and (iii)
in the event such Asset Swap involves an aggregate amount in excess of
$10,000,000, the Company has received a written opinion from an independent
investment banking firm of nationally recognized
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standing that such Asset Swap is fair to the Company or such Subsidiary, as the
case may be, from a financial point of view.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company may not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another Person or adopt a plan of
liquidation, unless:
(1) either (A) the Company is the surviving or continuing
Person or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company have been
transferred, shall be a corporation, partnership or trust organized and
existing under the laws of the United States or any State thereof or the
District of Columbia;
(2) such surviving Person shall assume all the obligations of
the Company under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction and
the use of the proceeds therefrom (on a pro forma basis, including
giving effect to any Indebtedness incurred or anticipated to be incurred
in connection with such transaction), the Company (in the case of clause
(A) of the foregoing clause (1)) or such Person (in the case of clause
(B) of the foregoing clause (1)) shall be able to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12;
(4) immediately after giving effect to such transactions no
Default or Event of Default shall have occurred or be continuing; and
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(5) the Company has delivered to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and
Opinion of Counsel, each stating that such consolidation, merger or
transfer complies with this Indenture and that all conditions precedent
in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one
or more Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, will be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company. Notwithstanding the foregoing clauses (2) and (3), (a) any
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with a corporate Affiliate thereof incorporated solely for the purpose of
reincorporating the Company in another jurisdiction in the United States to
realize tax or other benefits.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the
Securities and agrees to be bound hereby and thereby, the predecessor shall be
released from such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
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(1) the Company fails to pay interest on the Securities when
the same becomes due and payable and the Default continues for a period
of 30 days;
(2) the Company fails to pay the principal amount of any
Securities when such principal becomes due and payable, at maturity,
upon redemption or otherwise;
(3) the Company defaults in the observance or performance of
any other covenant or agreement contained in the Securities or this
Indenture, which Default continues for a period of 30 days after the
Company receives written notice thereof specifying such Default from the
Trustee or holders of at least 25% in aggregate principal amount of
outstanding Securities;
(4) there shall be a failure to pay at the final stated
maturity (giving effect to any extensions thereof) the principal amount
of any Indebtedness of the Company or any Subsidiary of the Company, or
the acceleration of the final stated maturity of any such Indebtedness,
if the aggregate principal amount of such Indebtedness, together with
the aggregate principal amount of any other such Indebtedness in default
for failure to pay principal at the final stated maturity (giving effect
to any extensions thereof) or which has been accelerated, aggregates
$10,000,000 or more at any time, in each case after a 10-day period
during which such default shall not have been cured or such acceleration
rescinded;
(5) one or more judgments in an aggregate amount in excess of
$10,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) shall have been rendered against the
Company or any of its Significant Subsidiaries and such judgments or
judgments remain undischarged or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable;
(6) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a custodian of it or
for substantially all of its property, (D) consents to or acquiesces in
the institution of a bankruptcy or an
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insolvency proceeding against it or (E) makes a general assignment for
the benefit of its creditors; or
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Significant
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 Significant Subsidiary, (B) appoint a custodian of the
Company or any Significant Subsidiary or for substantially all of its
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.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, and the
Trustee upon the request of Holders of 25% in principal amount of the
outstanding Securities shall, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding may, declare the principal
of all the Securities, together with all accrued and unpaid interest and
premium, if any, to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Facility, shall become due and payable upon the first to occur of an
acceleration under the Credit Facility or five Business Days after receipt by
the Company and the agent under the Credit Facility of such Acceleration Notice
(unless all Events of Default specified in such Acceleration Notice have been
cured or waived). If an Event of Default specified in Section 6.01(6) or (7)
with respect to the Company occurs and is continuing with respect to the
Company, then such amount shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholder. At any time after a declaration of acceleration with respect
to the Securities, the Holders of a majority in principal amount of the
Securities then outstanding (by notice to the Trustee) may rescind and cancel a
declaration of acceleration and its consequences if (i) the rescission would
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not conflict with any judgment or decree of a court of competent jurisdiction,
(ii) all existing Events of Default have been cured or waived, except
non-payment of the principal amount of or any accrued interest on the
Securities that has become due solely by such declaration of acceleration,
(iii) to the extent the payment of such interest is lawful, interest (at the
same rate as specified in the Securities) on overdue installments of interest
and overdue payments of principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iv) the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and (v) in the event of the cure or waiver
of a Default or Event of Default of the type described in Sections 6.01(6) and
(7), the Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Default or Event of Default has been cured or waived and the
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel. 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, premium or interest, if any, on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
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 a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of the principal amount of or interest on any Security
as specified in clauses (1) and (2) of Section 6.01.
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SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of 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, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01, however, the Trustee
may, in its discretion, 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, in its discretion, that is not inconsistent with such
direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) 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 Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be incurred in compliance with
such request which is reasonably satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of satisfactory
indemnity or security; and
(5) during such 45-day period the 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.
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.
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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 such
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal 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 at the rate set forth in 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, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property, and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable 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, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. The Company's payment
obligations under this
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Section 6.09 shall be secured in accordance with the provisions of 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 pursuant to this Article Six,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities
for Accreted Value or principal, premium and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Securities,
as their interests may appear, or as a court of competent jurisdiction
may direct.
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 reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a
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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 a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no duties,
covenants, responsibilities or obligations shall be implied in this
Indenture that are adverse to 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 (including
Officers' Certificates) or opinions (including Opinions of Counsel)
furnished to the Trustee and conforming to the requirements of this
Indenture. However, as to any certificates or opinions which are
required by any provision of this Indenture to be delivered or provided
to the Trustee, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein contained,
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:
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(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 Trust Officer, 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 6.02, 6.04 or 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 in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(g) In the absence of bad faith, negligence or wilful
misconduct on the part of the Trustee, the Trustee shall not be responsible for
the application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon 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
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 10.04 and 10.05.
The Trustee shall not be liable for and shall be fully protected in
respect of any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith that it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate
(including any Officers' Certificate), statement, instrument, opinion
(including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled,
upon reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
(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 of the Securities 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 by it in compliance with
such request, order or direction.
(g) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization
and protection from liability with respect to any action taken, omitted
or
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suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
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, any
Subsidiary or Unrestricted Subsidiary, or their respective Affiliates, with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, and it shall not be accountable
for the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or the
Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 60 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal of, premium or interest on, any
Security, including an accelerated payment and the failure to make payment on
the Change of Control Payment Date pursuant to a Change of Control Offer or on
the Proceeds Purchase Date pursuant to a Net Proceeds Offer and, except in the
case of a failure to comply with Article Five, the Trustee may withhold the
notice if and so long as its Board of Directors, the executive committee of its
Board of Directors or a committee of its directors and/or Trust Officers in
good faith determines that withholding the notice is in the interest of the
Securityholders. The Trustee shall not be deemed to have knowledge of a
Default or Event of Default other than (i) any Event of Default occurring
pursuant to Section 6.01(1), 6.01(2) or 4.01; or (ii) any Default or Event of
Default of which a Trust Officer shall have received written notification or
obtained actual knowledge.
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SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each February 1 of each year beginning with
February 1, 1998, the Trustee shall, to the extent that any of the events
described in TIA Section 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 Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee if the Securities
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon by the Company and the Trustee. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by it in connection with the performance of its duties and the
discharge of its obligations under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless
against, any loss, liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful misconduct
on their part, arising out of or in connection with the acceptance or
administration of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim asserted against the
Trustee or any agent, employee, officer, stockholder or director of the Trustee
for which it may seek indemnity. The Company shall defend the claim, and the
Trustee and its agents, officers, employees, stockholders and directors shall
cooperate in the
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defense. The Trustee and its agents, officers, employees, stockholders and
directors may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel; provided that the Company will not be
required to pay such fees and expenses if it assumes the Trustee's defense and
there is no conflict of interest between the Company and the Trustee in
connection with such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and
the compensation for such services shall be paid to the extent allowed under
any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing at
least 10 days in advance. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee and may appoint a successor Trustee with the Company's consent. A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only with the successor Trustee's acceptance of
appointment as provided in this Section. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall 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. Promptly after that,
the retiring Trustee shall transfer 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. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the 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.
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; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
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SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 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 Section 310(b)(1) are met.
The provisions of TIA Section 310 shall apply to the Company and any other
obligor of the Securities.
SECTION 7.11. Preferential Collection of
Claims Against the Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company and any
other obligor of the Securities.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
This Indenture shall cease to be of further effect and the
obligations of the Company under the Securities and this Indenture shall
terminate (except that the obligations under Sections 7.07, 8.04 and 8.05 shall
survive the effect of this Article Eight) when all outstanding Securities
theretofore authenticated and issued have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder.
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In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged from any and all obligations with
respect to the Securities ("legal defeasance") after the applicable conditions
set forth below have been satisfied or (b) the Company shall cease to be under
any obligation to comply with any term, provision or condition set forth in
Article Four (except that the Company's obligations under Sections 4.01 and
4.02 shall survive) and Section 5.01 ("covenant defeasance") after the
applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities U.S. Legal Tender or U.S. Government
Obligations or a combination thereof that, through the payment of
interest thereon and principal amounts in respect thereof in accordance
with their terms, will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay all amounts of
principal of and interest on the Securities on the dates such
installments of interest or principal amounts are due in accordance with
the terms of such Securities, as well as the Trustee's fees and
expenses; provided that no deposits made pursuant to this Section
8.01(1) shall cause the Trustee to have a conflicting interest as
defined in and for purposes of the TIA; and provided, further, that, as
confirmed by an Opinion of Counsel, no such deposit shall 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;
(2) No Event of Default or Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit after giving effect to such deposit;
(3) The Company shall have delivered to the Trustee an Opinion
of Counsel, subject to certain qualifications, to the effect that (i)
the Funds will not be subject to any rights of any other holders of
Indebtedness of the Company, and (ii) the Funds so deposited will not be
subject to avoidance under applicable Bankruptcy Law;
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(4) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07;
(5) No such deposit will result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other instrument or agreement (including, without limitation, the
New Credit Facility) to which the Company or any of its Subsidiaries is
a party or by which it or its property is bound;
(6) Subject to the satisfaction of the conditions set forth in
paragraphs (1) through (5) above, (a) the Company shall be deemed to
have completed legal defeasance if the Company shall have delivered to
the Trustee an Opinion of Counsel confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service, a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such legal defeasance had not occurred and (b) the Company shall
be deemed to have completed covenant defeasance if the Company shall
have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the Securities
will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred; and
(7) An Officers' Certificate and an Opinion of Counsel to the
effect that all conditions precedent to the defeasance have been
complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by
subparagraph 7 above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the Maturity Date within one year, or (iii) are
to be called for redemption within one year under arrangements
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satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same upon compliance by the
Company with the provisions of this Section), except (i) the rights of the
Holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on such Securities when
such payments are due, (ii) the Company's obligations with respect to the
Securities under Sections 2.03 through 2.07, 7.07 and 7.08 and (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
"Funds" means the aggregate amount of U.S. Legal Tender and/or
U.S. Government Obligations deposited with the Trustee pursuant to this Article
Eight.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section
8.01, have been satisfied and (ii) the Company has delivered to the Trustee an
Opinion of Counsel, 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 of the Company shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust Funds deposited with it pursuant
to Section 8.01. It shall apply the Funds through the Paying Agent and in
accordance with this Indenture to the payment of principal amounts and accrued
and unpaid interest on the Securities.
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SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company any Funds held by them for the payment of principal amounts or interest
that remains unclaimed for one year; provided, however, that the Trustee or
such Paying Agent may, at the expense of the Company, cause to be published
once in a newspaper of general circulation in the City of New York or mailed to
each Holder, notice that such Funds remain unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed balance of such Funds then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
the Funds must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person and all liability
of the Trustee and Paying Agent with respect to such Funds shall cease.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Funds by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such Funds in accordance with Section 8.01; provided,
however, that if the Company has made any payment of interest of any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from Funds held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
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(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not adversely affect the rights
of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(5) to make any other change that does not adversely affect in
any material respect the rights of any Securityholders hereunder;
provided that the Company 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, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder
or Holders of at least a majority in principal amount of the outstanding
Securities may amend or supplement this Indenture or the Securities, without
notice to any other Securityholders. Subject to Sections 6.04 and 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.
No amendment, supplement or waiver, including a waiver pursuant to Section
6.04, shall, directly or indirectly, without the consent of each Holder of each
Security affected thereby:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Securities;
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(3) reduce the principal of or change the fixed maturity of
any Securities, or change the date on which any Securities may be
subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor;
(4) make any Securities payable in money other than that
stated in the Securities and this Indenture;
(5) make any change in provisions of this Indenture protecting
the right of each Holder of a Security to receive payment of principal
of, premium 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 Securities to waive Defaults or
Events of Default; or
(6) after the Company's obligation to purchase the Securities
arises under Section 4.14 or 4.15, amend, modify or change the
obligation of the Company to consummate a Change of Control Offer or a
Net Proceeds Offer or waive any default in the performance thereof or
modify any of the provisions or definitions with respect to any such
offers.
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 (as provided in Section 9.04), 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.
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
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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. Subject to the
following paragraph, 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 (at which time such amendment,
supplement or waiver shall become effective).
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. 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 120
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 (6) 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 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
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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 and adopted in accordance with 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. Such Opinion of Counsel shall not be an expense
of the Trustee.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of Securities,
by its acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on the Securities are hereby expressly made subordinate and
junior in right of payment as provided in this Article 10 to the prior payment
in full in cash or Cash Equivalents or, as acceptable to the holders of Senior
Debt, in any other manner, of all Obligations on Senior Debt.
This Article 10 shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of or continue to
hold Senior Debt; and such provisions are made for the benefit of the holders
of Senior Debt; and such holders are made obligees hereunder and they or each
of them may enforce such provisions.
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SECTION 10.02. Payment Over of Proceeds upon
Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, whether voluntary or involuntary or (b)
any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Debt shall be entitled to receive
payment in full in cash or Cash Equivalents or, as acceptable to the
holders of Senior Debt, in any other manner, of all amounts due on or in
respect of all Senior Debt, or provision shall be made for such payment,
before the Holders of the Securities are entitled to receive any payment
or distribution of any kind or character on account of principal of,
premium, if any, or interest on the Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by set-
off or otherwise, to which the Holders or the Trustee would be entitled
but for the provisions of this Article 10 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver of liquidating
trustee or otherwise, directly to the holders of Senior Debt or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Debt may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Debt held or represented by
each, to the extent necessary to make payment in full in cash, Cash
Equivalents or, as acceptable to the holders of Senior Debt, in any
other manner, of all Senior Debt remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Debt; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 10.02, the Trustee or the Holder of any
Security shall have received any payment or
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distribution of assets of the Company of any kind or character, whether
in cash, property or securities, including, without limitation, by way
of set-off or otherwise, in respect of principal of, premium, if any,
and interest on the Securities before all Senior Debt is paid in full or
payment thereof provided for, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
an application to the payment of all Senior Debt remaining unpaid, to
the extent necessary to pay all Senior Debt in full in cash, Cash
Equivalents or, as acceptable to the holders of Senior Debt, any other
manner, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article 5 hereof shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Article if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in such Article 5
hereof.
SECTION 10.03. Suspension of Payment When Senior
Debt in Default.
(a) Unless Section 10.02 hereof shall be applicable, after the
occurrence of a Payment Default no payment of any kind or character (except (i)
in Qualified Capital Stock issued by the Company to pay interest on the
Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company in payment of
interest accrued thereon or (iii) in securities issued by the Company that are
subordinated to the Senior Debt at least to the same extend as the Securities
and having a Weighted Average Life to Maturity at least equal to the remaining
Weighted Average Life to Maturity of the Securities (the issuance of such
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subordinated securities to be consented to by the holders of at least a
majority of the outstanding amount of Senior Debt consisting of each class of
Designated Senior Debt then outstanding, which subordinated securities will be
issued in exchange for outstanding Securities or to pay interest accrued on
outstanding Securities)) will be made by the Company or any other Person on
behalf of the Company with respect to any obligations on the Securities or to
acquire any of the Securities for cash or property or otherwise unless and
until such Payment Default shall have been cured or waived in writing or shall
have ceased to exist or the Senior Debt as to which such Payment Default
relates shall have been discharged or paid in full in cash or Cash Equivalents,
after which the Company shall resume making any and all required payments in
respect of the Securities, including any missed payments.
(b) Unless Section 10.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Debt and upon
receipt by the Trustee and the Company from any holder of Designated Senior
Debt (the "Representative") of written notice of (a "Default Notice") such
occurrence, unless and until all such Non-Payment Events of Default have been
cured or waived or have ceased to exist or the Company and the Trustee receive
notice from the Representative for the respective issue of Designated Senior
Debt terminating the Blockage Period (as defined below), during the 180 days
after the delivery of such Default Notice (the "Blockage Period), neither the
Company nor any other Person on behalf of the Company will make any payment of
any kind or character (except (i) in Qualified Capital Stock issued by the
Company to pay interest on the Securities or issued in exchange for the
Securities, (ii) in securities substantially identical to the Securities issued
by the Company in payment of interest accrued thereon or (iii) in securities
issued by the Company that are subordinated to the Senior Debt at least to the
same extent as the Securities and having a Weighted Average Life to Maturity at
least equal to the remaining Weighted Average Life to Maturity of the
Securities (the issuance of such subordinated securities to be consented to by
the holders of at least a majority of the outstanding amount of Senior Debt
consisting of each class of Designated Senior Debt then outstanding, which
subordinated securities will be issued in exchange for outstanding Securities
or to pay interest accrued on outstanding Securities)) with respect to any
Obligations on the Securities or to acquire any of the Securities for cash or
property or otherwise. Notwithstanding anything in this Indenture to the
contrary, only one such Blockage Period may be commenced within
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any 360 consecutive days. No Non-Payment Event of Default that existed or was
continuing on the date of the commencement of any Blockage Period with respect
to the Designated Senior Debt initiating such Blockage Period shall be, or be
made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Debt whether or not within a period of
360 consecutive days, unless such event of default has been cured or waived for
a period of not less than 90 consecutive days (it being acknowledged that any
subsequent action or any breach of any financial covenants for a period
commencing after the date of commencement of such Blockage Period that, in
either case, would give rise to an Event of Default pursuant to any provision
under which an Event of Default previously existed or was continuing shall
constitute a new Event of Default for this purpose).
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment
prohibited by the foregoing provisions of this Section 10.03, then and in such
event such payment shall be paid over and delivered forthwith to the
Representative initiating the Blockage Period, in trust for distribution to the
holders of Senior Debt or, if no amounts are then due in respect of Senior
Debt, promptly returned to the Company, or otherwise as a court of competent
jurisdiction shall direct.
SECTION 10.04. Trustee's Relation to Senior
Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only the covenants and obligations of the
Trustee as are specifically set forth in this Article 10, and no implied
covenants or obligations of the Trustee with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary or other duty to the holders of Senior Debt,
and the Trustee shall not be liable to any holder of Senior Debt if it shall
mistakenly pay over or deliver to Holders, the Company or any other Person
moneys or assets to which any holder of Senior Debt shall be entitled by virtue
of this Article 10 or otherwise.
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SECTION 10.05. Subrogation to Rights of Holders
of Senior Debt.
Upon the payment in full of all Senior Debt, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of, premium, if any and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior Debt of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 10, and no
payments over pursuant to the provisions of this Article 10 to the holders of
Senior Debt by Holders of the Securities or the Trustee shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article 10, to the
payment of all amounts payable under the Senior Debt of the Company, then and
in such case the Holders shall be entitled to receive from the holders of such
Senior Debt at the time outstanding any payments or distributions received by
such holders of such Senior Debt in excess of the amount sufficient to pay all
amounts payable under or in respect of such Senior Debt in full in cash or Cash
Equivalents.
SECTION 10.06. Provisions Solely to Define Relative
Rights.
The provisions of this Article 10 are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Debt and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights
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against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Security from exercising all rights and remedies otherwise
permitted by applicable law upon a Default or an Event of Default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt (1) in any case, proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 10.02 hereof, to
receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 10.03, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section 10.03(c)
hereof.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Securities by reason of any provision of
this Article 10 shall not be construed as preventing the occurrence of a
Default or an Event of Default hereunder.
SECTION 10.07. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time
to file such a claim, the holders of Senior Debt, or any Representative, may
file such a claim on behalf of Holders of the Securities.
SECTION 10.08. No Waiver of Subordination
Provisions.
(a) No right of any present or future holder of any Senior
Debt to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or
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failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.08, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
10 or the obligations hereunder of the Holders of the Securities to the holders
of Senior Debt, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt or any instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Debt; (3) release
any Person liable in any manner for the collection or payment of Senior Debt;
and (4) exercise or refrain from exercising any rights against the Company and
any other Person; provided, however, that in no event shall any such actions
limit the right of the Holders of the Securities to take any action to
accelerate the maturity of the Securities pursuant to Article 6 hereof or to
pursue any rights or remedies hereunder or under applicable laws if the taking
of such action does not otherwise violate the terms of this Indenture.
SECTION 10.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee at its Corporate Trust Office in respect of the
Securities. Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 10.09, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received
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the notice provided for in this Section 10.09 at least five Business Days prior
to the date upon which by the terms hereof any money may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then, anything
herein contained to the contrary notwithstanding but without limiting the
rights and remedies of the holders of Senior Debt or any trustee, fiduciary or
agent therefor, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received
and shall not be affected by any notice to the contrary which may be received
by it within five Business Days prior to the date of such application; nor
shall the Trustee be charged with knowledge of the curing of any such default
or the elimination of the act or condition preventing any such payment unless
and until the Trustee shall have received an Officers' Certificate to such
effect.
(b) Subject to the provisions of Section 7.01 hereof, the
Trustee shall be entitled to rely on the delivery to it of a written notice to
the Trustee and the Company by a Person representing itself to be a holder of
Senior Debt (or a trustee, fiduciary, agent or other representative therefor)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee, fiduciary, agent or other representative therefor); provided, however,
that failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 10, 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 10.10. Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Section 7.01 hereof, and the Holders shall be
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entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of 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 10; provided that the foregoing shall apply only if such court has been
fully apprised of the provisions of this Article 10.
SECTION 10.11. Rights of Trustee as a Holder
of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 10 with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
SECTION 10.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 10 shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article 10 in addition to or in place of the
Trustee.
SECTION 10.13. No Suspension of Remedies.
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 or to pursue any rights or
remedies hereunder or
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under applicable law, subject to the rights, if any, under this Article 10 of
the holders, from time to time, of Senior Debt.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision 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:
Capstar Broadcasting Partners, Inc.
600 Congress Avenue
Suite 1400
Austin, TX 78701
Attention: Chief Financial Officer
with a copy to:
Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, Texas 75201
Attention: Michael D. Wortley and
Jeffrey A. Chapman
if to the Trustee:
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue
Suite 2700
Dallas, Texas 75201
Attention: Corporate Trust Department
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The Company and the Trustee by written notice to each other may
designate additional or different addresses for notices. Any notice or
communication to the Company 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 faxed; 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 Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
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:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with; and
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(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed action
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 4.07, 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 reasonably 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.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, Dallas, Texas or at such place of payment are not required to
be open. If a payment date is a Legal Holiday at such place, payment may be
made at such place on the next succeeding day that is not a Legal
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Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
THIS INDENTURE AND THE NOTES 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 CONFLICT OF LAWS.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture 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 in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy 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 or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
91
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the date first written above.
CAPSTAR BROADCASTING
PARTNERS, INC.
By:
---------------------------------
Name:
Title:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
---------------------------------
Name:
Title:
92
EXHIBIT A
CAPSTAR BROADCASTING PARTNERS, INC.
12% Subordinated Exchange Debentures due 2009
No. $
CAPSTAR BROADCASTING PARTNERS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to or registered
assigns, the principal sum of Dollars, on July 1,
2009.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
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.
CAPSTAR BROADCASTING
PARTNERS, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
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Trustee's Certificate of Authentication
This is one of the 12% Subordinated Exchange Debentures due 2009
referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
----------------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
12% Subordinated Exchange Debentures due 2009
1. Interest. CAPSTAR BROADCASTING PARTNERS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on each January 1 and July 1 (each an
"Interest Payment Date") and at stated maturity, commencing . (1) 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 July 1, 2002, the entire amount of the
interest payment on the Securities 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 of 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 Security Register, 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 and Secondary Securities held of record by such
holder.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Securities 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
- ---------------
(1) Insert first Interest Payment Date following the Issue Date.
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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, premium and interest 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, premium and interest
by its check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company
of Texas, N.A. (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. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture. The Company issued the Securities under an
Indenture, dated as of June 17, 1997 (the "Indenture"), between the Company and
the Trustee. This Security is one of a duly authorized issue of Securities of
the Company designated as its 12% Subordinated Exchange Debentures due 2009
(the "Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount equal to the liquidation preference of the
outstanding shares of Exchangeable Preferred Stock on the Exchange Date, which
may be issued under the Indenture. 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. Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are general unsecured obligations of the Company.
5. Optional Redemption. (a) The Securities may be redeemed
at any time on or after July 1, 2002, in whole or in part, at the Company's
option, at the redemption prices (expressed as percentages of the principal
amount thereof) set forth below, plus, without duplication, in each case,
accrued and unpaid interest, if any, to the redemption date if redeemed during
the 12-month period beginning July 1 of each of the years set forth below:
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YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . 106.000%
2003 . . . . . . . . . . . 104.800%
2004 . . . . . . . . . . . 103.600%
2005 . . . . . . . . . . . 102.400%
2006 . . . . . . . . . . . 101.200%
2007 and thereafter . . . 100.000%
(b) In addition, prior to July 1, 2001, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings or
Major Asset Sales to redeem the Securities, in whole or in part, at a
redemption price of 112.0% of the principal amount thereof plus accrued and
unpaid interest, if any, thereon to the date of redemption; provided, however,
that after any such redemption, the aggregate principal amount of Securities
outstanding must equal at least $75,000,000. Any such redemption will be
required to occur on or prior to the date that is one year after the receipt by
the Company of the proceeds of each Public Equity Offering or Major Asset Sale.
The Company shall effect such redemption on a pro rata basis.
(c) In addition, prior to July 1, 2002, upon the occurrence of
a Change of Control, the Company will have the option to redeem the Securities
in whole but not in part (a "Change of Control Redemption") at a redemption
price equal to 100% of the principal amount of the Securities plus the
Applicable Premium together with accrued and unpaid interest to the date of
redemption. In order to effect a Change of Control Redemption, the Company
must send a notice to each holder of Securities, which notice shall govern the
terms of the Change of Control Redemption. Such notice must be mailed to
holders of Securities within 30 days following the date the Change of Control
occurred (the "Change of Control Redemption Date") and state that the Company
is effecting a Change of Control Redemption in lieu of a Change of Control
Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the principal
amount of such Security and (ii) the excess of (A) the present value at such
time of (1) the redemption price of such Security at July 1, 2002 (such
redemption price being described in Section 5(a) hereof plus (2) all required
interest payments due on such Security through July 1, 2002 computed using a
discount rate equal to the Treasury Rate plus 150 basis points over (B) the
principal amount of such Security.
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"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior
to the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source or similar market data)) most
nearly equal to the period from the Change of Control Redemption Date to July
1, 2002; provided, however, that if the period from the Change of Control
Redemption Date to July 1, 2002 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given except that if the period
from the Change of Control Redemption Date to July 1, 2002 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
6. Subordination. The Securities are subordinated in right
of payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Debt, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. To the extent and in the manner provided in the
Indenture, Senior Debt must be paid before any payment may be made to any
Holder of this Security. Each Holder by his acceptance hereof agrees to be
bound by such provisions and authorizes and expressly directs the Trustee, on
his behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
7. 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 larger than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture,
the Company shall be required to offer to repurchase all or a portion of the
then outstanding Securities pursuant to a Change of Control Offer at a purchase
price equal to 101% of the principal amount thereof, plus, without duplication,
all accrued and unpaid interest, if any, to the Change of Control Payment Date.
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9. Limitation on Disposition of Assets. Under certain
circumstances the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued interest to the date of
repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. 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.
11. Persons Deemed Owners. The registered Holder of a
Security shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of, premium and interest on the
Securities to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including certain covenants,
but excluding its obligation to pay the principal of, premium and interest on
the Securities).
14. 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 noncompliance with any provision may be waived with the
written 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,
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provide for uncertificated Securities in addition to or in place of
certificated Securities, or comply with Article Five of the Indenture or make
any other change that does not adversely affect in any material respect the
rights of any Holder of a Security.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness and issue Preferred Stock, engage in
certain Asset Swaps, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Subsidiaries and merge or consolidate
with any other Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Securities and
the Indenture, the predecessor will be released from those obligations.
17. 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 in the manner, at the time 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 been offered indemnity
or security reasonably 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 or interest) if it determines in good faith
that withholding notice is in their interest.
18. 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, Unrestricted Subsidiaries or their respective Affiliates as if it
were not the Trustee.
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19. No Recourse Against Others. No past, present or future
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.
20. Authentication. This Security shall not be valid until
the Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
21. Governing Law. The laws of the State of New York shall
govern this Security and the Indenture, without regard to principles of
conflict of laws.
22. 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).
23. 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.
24. Indenture. Each Holder, by accepting a Security, agrees
to be bound by all of the terms and provisions of the Indenture, as the same
may be amended from time to time. Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture.
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:
CAPSTAR BROADCASTING PARTNERS, INC., 600 Congress Avenue, Suite 1400, Austin,
Texas 78701.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
Dated:
----------------------- --------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in
every particular without alteration or
enlargement or any change whatsoever and be
guaranteed by the endorser's bank or
broker.
Signature Guarantee:
-------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state
the amount: $_____________
Date: ___________________ Your Signature: ____________________________________
(Sign exactly as your 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)
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