1
EXHIBIT 4.38
================================================================================
INDENTURE
Dated as of December 22, 1997
Among
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, as Issuer
THE GUARANTORS named herein
and
THE BANK OF NEW YORK, as Trustee
-------------------------
$500,000,000
8 1/8% Senior Subordinated Notes due 2007
================================================================================
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(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
- ---------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of the Indenture.
3
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of TIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.02. Execution and Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.04. Paying Agent To Hold Assets in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.05. Securityholder Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.07. Replacement Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.08. Outstanding Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.13. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.14. Deposit of Moneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.15. Book-Entry Provisions for Global Securities. . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.16. Special Transfer Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.02. Selection of Securities To Be Redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.06. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-i-
4
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.03. Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.04. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.05. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.06. Maintenance of Properties and Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.07. Compliance Certificate; Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.08. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.09. SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.10. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.11. Limitation on Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness. . . . . . . . . . . . . . . . . . . 48
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries. . . . . . . 48
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Indebtedness. . . . . . . . . . . . . . 49
SECTION 4.15. Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.16. Limitation on Asset Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.17. Limitation on Preferred Stock of Subsidiaries. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.18. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.19. Guarantees of Certain Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.20. Limitation on Sale and Leaseback Transactions. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.21. Limitation on Line of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.22. Limitation on Asset Swaps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.02. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
-ii-
5
SECTION 6.07. Rights of Holders To Receive Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.05. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.11. Preferential Collection of Claims Against the Company. . . . . . . . . . . . . . . . . . 72
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.02. Acknowledgment of Discharge by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.03. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 8.04. Repayment to the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 8.05. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.03. Compliance with TIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.04. Revocation and Effect of Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.05. Notation on or Exchange of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.06. Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinated to Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . 80
-iii-
6
SECTION 10.02. No Payment on Securities in Certain Circumstances. . . . . . . . . . . . . . . . . . . . 81
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc. . . . . . . . . . . . . . . . . . . . . . 83
SECTION 10.04. Payments May Be Paid Prior to Dissolution. . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 10.05. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 10.06. Obligations of the Company Unconditional. . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 10.07. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent. . . . . . . . . . . . . . 87
SECTION 10.09. Trustee's Relation to Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders
of Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 10.11. Securityholders Authorize Trustee To Effectuate Subordination of Securities. . . . . . . 89
SECTION 10.12. This Article Ten Not To Prevent Events of Default. . . . . . . . . . . . . . . . . . . . 89
SECTION 10.13. Trustee's Compensation Not Prejudiced. . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE TEN A
GUARANTEES OF THE SECURITIES
SECTION 10A.02. Execution and Delivery of the Guarantees. . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 10A.03. Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10A.04. Limitation of Guarantors' Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10A.05. Guarantors May Consolidate, etc., on Certain Terms. . . . . . . . . . . . . . . . . . . . 93
SECTION 10A.06. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 10A.07. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE TEN B
SUBORDINATION OF GUARANTEES
SECTION 10B.01. Guarantee Obligations Subordinated to Guarantor Senior Indebtedness. . . . . . . . . . . 95
SECTION 10B.02. No Payment on Guarantees in Certain Circumstances. . . . . . . . . . . . . . . . . . . . 96
SECTION 10B.03. Payment Over of Proceeds upon Dissolution, Etc. . . . . . . . . . . . . . . . . . . . . . 98
SECTION 10B.04. Payments May Be Paid Prior to Dissolution. . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 10B.05. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
-iv-
7
SECTION 10B.06. Guarantee Provisions Solely To Define Relative Rights. . . . . . . . . . . . . . . . . . 101
SECTION 10B.07. Trustee to Effectuate Subordination of Obligations Under the Guarantees. . . . . . . . . 102
SECTION 10B.08. No Waiver of Guarantee Subordination Provisions. . . . . . . . . . . . . . . . . . . . . 102
SECTION 10B.09. Guarantors to Give Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 10B.10. Reliance on Judicial Order or Certificate of Liquidating Agent Regarding
Dissolution, etc., of Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 10B.11. Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 10B.12. No Suspension of Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 10B.13. Trustee's Relation to Guarantor Senior Indebtedness. . . . . . . . . . . . . . . . . . . 105
SECTION 10B.14. Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or
Holders of Guarantor Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 10B.15. This Article Ten B Not To Prevent Events of Default. . . . . . . . . . . . . . . . . . . 106
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 11.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 11.03. Communications by Holders with Other Holders. . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. . . . . . . . . . . . . . . . . . . . 108
SECTION 11.05. Statements Required in Certificate or Opinion. . . . . . . . . . . . . . . . . . . . . . 108
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar. . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 11.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 11.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 11.09. No Adverse Interpretation of Other Agreements. . . . . . . . . . . . . . . . . . . . . . 109
SECTION 11.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 11.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 11.12. Duplicate Originals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 11.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Exhibit A-1 - Form of Series A Security
Exhibit A-2 - Form of Series B Security
-v-
8
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Transferee Certificate for Non-QIB Accredited Investors
Exhibit D - Transferee Certificate for Transfers Pursuant to Regulation S
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
-vi-
9
INDENTURE, dated as of December 22, 1997, among Chancellor
Media Corporation of Los Angeles, a Delaware corporation (the "Company"), and
each subsidiary guarantor named on the signature pages hereto (collectively the
"Guarantors") and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's 8 1/8% Senior Subordinated Notes due 2007 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"8 3/4% Notes" means the $200.0 million aggregate principal
amount of 8 3/4% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an indenture (the "8 3/4% Notes Indenture"), dated as of June 24,
1997, as amended, as the same may be modified or amended from time to time and
future refinancings thereof.
"9 3/8% Notes" means the $200.0 million aggregate principal
amount of 9 3/8% Senior Subordinated Notes due 2004 of the Company, issued
pursuant to an indenture (the "9 3/8% Notes Indenture"), dated as of February
14, 1996, as amended, as the same may be modified or amended from time to time
and future refinancings thereof.
"9 3/8% Notes Issue Date" means February 14, 1996.
"10 1/2% Notes" means the $100.0 million aggregate principal
amount of 10 1/2% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an amended and restated indenture (the 10 1/2% Notes Indenture"),
dated as of December 19, 1996, and amended and restated as of October 28, 1997,
as amended, as the same may be modified or amended from time to time and future
refinancings thereof.
"Acceleration Notice" has the meaning provided in Section 6.02.
10
-2-
"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 in connection with, or in anticipation or contemplation
of, such acquisition, merger or consolidation.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee of such Guarantor at such date, and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"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.
11
-3-
"Agent Members" has the meaning provided in Section 2.15.
"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 4.16, Asset Sales shall not include (a) a transaction
or series of related transactions for which the Company or its Subsidiaries
receive aggregate consideration of less than $500,000, (b) transactions
permitted under Section 4.22, (c) transactions permitted under Section 5.01 or
(d) any Contract Buy Out.
"Asset Swap" means the execution of a definitive agreement,
subject only to approval of the Federal Communications Commission and other
customary closing conditions, that the Company in good faith believes will be
satisfied, for a substantially concurrent purchase and sale, or exchange, of
Productive Assets between the Company or any of its Subsidiaries and another
Person or group of affiliated Persons; provided that any amendment to or waiver
of any closing condition which individually or in the aggregate is material to
the Asset Swap shall be deemed to be a new Asset Swap.
"Attributable Value" in respect of a sale and leaseback
arrangement of any property means, as at the time of determination, the greater
of (i) the fair market value of the property subject to such arrangement (as
determined in good faith by the Board of Directors of the Company) or (ii) the
present value (discounted at the interest rate borne by the Securities,
compounded annually) of the total obligations of the
12
-4-
lessee for rental payments during the remaining term of the lease included in
such arrangement.
"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, including each class of common stock and
Preferred 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.
"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
13
-5-
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 which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Chancellor Broadcasting" means Chancellor Broadcasting
Company, a Delaware corporation that was merged with and into Evergreen
Mezzanine Holdings Corporation, a Delaware corporation, on the Merger Date.
"Chancellor Media" means Chancellor Media Corporation, a
Delaware corporation formerly known as Evergreen Media Corporation, and its
successors.
"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 or any of its Affiliates, officers, and directors or to Steven
Dinetz or Scott K. Ginsburg (the "Permitted Holders"); or (ii) a majority of
the Board of Directors of Chancellor Media, CMHC or 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 having more than 50% of
the ordinary voting power for the election of directors of Chancellor Media,
CMHC or the Company.
14
-6-
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"CMHC" means Chancellor Mezzanine Holdings Corporation, a
Delaware corporation formerly known as Evergreen Mezzanine Holdings
Corporation, and its successors.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement 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 non-recurring 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 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 owed with respect to letters of credit, bankers' acceptance
financing or
15
-7-
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 $500,000 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 transaction
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 and (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.
"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 reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary or nonrecurring item).
"Continuing Director" means, as of the date of determination,
any Person who (i) was a member of the Board of Directors of Chancellor Media,
CMHC or the Company on the date of this Indenture, (ii) was nominated for
election or elected to the Board of Directors of Chancellor Media, CMHC or 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.
16
-8-
"Contract Buy Out" means the involuntary disposition or
termination (including, without limitation, pursuant to a buy out) of a
contract between a media representation company and a client station.
"CRBC" means Chancellor Radio Broadcasting Company, a Delaware
corporation that was merged with and into the Company on the Merger Date.
"Credit Agreement" means the Credit Agreement, dated on or
about February 14, 1996, among Chancellor Broadcasting, CRBC, the lenders
thereto and Bankers Trust Company as managing agent, as such agreement may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by
way of adding Subsidiaries of CRBC as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"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.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"Default Notice" shall have the meaning provided in Section
10.02.
"Depository" means The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Guarantor Senior Indebtedness" means (i)
Indebtedness guaranteed by a Guarantor under or in respect of the Senior Credit
Facility and (ii) any other Indebtedness constituting Guarantor Senior
Indebtedness which, at the time of determination, has an aggregate principal
amount of at least $25,000,000 and is specifically designated in the instrument
17
-9-
evidencing such Guarantor Senior Indebtedness as "Designated Guarantor Senior
Indebtedness" by the Guarantor.
"Designated Senior Indebtedness" means (i) Indebtedness under
or in respect of the Senior Credit Facility and (ii) any other Indebtedness
constituting Senior Indebtedness which, at the time of determination, has an
aggregate principal amount of at least $25,000,000 and is specifically
designated in the instrument evidencing such Senior Indebtedness as "Designated
Senior Indebtedness" by the Company.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital Stock" means any Capital Stock which, 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 at 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 of the Commission promulgated by the SEC
thereunder.
"Financial Monitoring and Oversight Agreements" means the
Financial Monitoring and Oversight Agreement among Hicks, Muse & Co. Partners,
L.P., CRBC and Chancellor Broadcasting as in effect on the 9 3/8% Notes Issue
Date, and the Financial Advisory Agreement among HM2/Management Partners, L.P.,
CRBC and Chancellor Broadcasting, as in effect on the 9 3/8% Notes Issue Date,
or as each is amended in connection with the merger of Chancellor Broadcasting,
CRBC, Chancellor Media, CMHC and the Company on the Merger Date.
"Funding Guarantor" has the meaning provided in Section
10A.06.
"Funds" has the meaning provided in Section 8.01.
18
-10-
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the Issue Date.
"Global Securities" has the meaning provided in Section 2.02.
"Guarantees" means the guarantees of the Securities on a
senior subordinated basis by the Guarantors pursuant to Article Ten A.
"Guarantor" means (i) initially, all of the Company's
Subsidiaries on the Issue Date except Katz International Limited, Katz
Television Sales Limited, Katz Radio Sales Limited and National Cable
Communications, L.P. and (ii) each of the Company's Subsidiaries that,
subsequent to the Issue Date, executes a supplemental indenture in which such
Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor;
provided that any Person constituting a Guarantor as described above shall
cease to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms thereof.
"Guarantor Senior Indebtedness" means any Indebtedness of a
Guarantor (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law), whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantees. Without limiting the generality of the
foregoing, "Guarantor Senior Indebtedness" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on, and all other amounts owing in respect of, and
all monetary obligations of every nature under, (x) the Senior Credit Facility,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities, and (y) all Interest Swap Obligations. Notwithstanding the
foregoing, "Guarantor Senior Indebtedness" shall not include any of the
following amounts (whether or not constituting Indebtedness as defined in this
Indenture): (i) any Indebtedness of a Guarantor to a Subsidiary of such
Guarantor; (ii) In-
19
-11-
debtedness and other amounts owing to trade creditors incurred in connection
with obtaining goods, materials or services; (iii) Indebtedness represented by
Disqualified Capital Stock; (iv) any liability for federal, state, local or
other taxes owed or owing by a Guarantor; (v) any Indebtedness which is, by its
express terms, subordinated in right of payment to any other Indebtedness of
such Guarantor; and (vi) guarantees of each of the 9 3/8% Notes, the 8 3/4%
Notes and the 10 1/2% Notes.
"Hicks Muse" means Hicks, Muse, Tate & Furst Incorporated, a
Delaware 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 are 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 at 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.
"Initial Purchasers" means BT Alex. Brown Incorporated,
Goldman, Sachs & Co., Salomon Brothers Inc, Morgan Stanley & Co. Incorporated
and Credit Suisse First Boston Corporation, pursuant to the Purchase Agreement.
20
-12-
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"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.
"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 $1,000,000, 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 11.07.
"Leverage Ratio" shall mean, as to any Person, the ratio of
(i) the sum of the aggregate outstanding amount of Indebtedness of such Person
and its Subsidiaries as of the date of calculation on a consolidated basis in
accordance with GAAP to (ii) the Consolidated EBITDA of such Person for the
four full fiscal quarters (the "Four Quarter Period") ending on or prior to the
date of determination.
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Person and its Subsidiaries for which
such calculation is made shall be determined on a pro forma basis as if the
Indebtedness giving rise
21
-13-
to the need to perform such calculation had been incurred and the proceeds
therefrom had been applied, and all other transactions in respect of which such
Indebtedness is being incurred 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 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 or 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 (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 and (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 who becomes a Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) 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 also including any Consolidated EBITDA associated with
such Asset Acquisition) occurred on the first day of the Four Quarter Period.
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 a 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).
22
-14-
"Maturity Date" means December 15, 2007.
"Merger Date" means September 5, 1997.
"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 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 4.16.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"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.
"Offering Memorandum" means the Offering Memorandum dated
December 15, 1997 pursuant to which $500.0 million aggre-
23
-15-
gate principal amount of the Securities were offered, and any supplement
thereto.
"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 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.
"Offshore Physical Securities" has the meaning provided in
Section 2.02.
"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.
"Pending Transactions" has the meaning set forth in the
Offering Memorandum.
"Permitted Indebtedness" means, without duplication, (i) the
Securities; (ii) the Guarantees; (iii) Indebtedness of the Company incurred
pursuant to the Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed the sum of the aggregate commitments pursuant to the
Credit Agreement as initially in effect on the 9 3/8% Notes Issue Date; (iv)
the 9 3/8% Notes, the 8 3/4% Notes and the 10 1/2% Notes and the Guarantees
thereof; (v) Interest Swap Obligations; provided that such Interest Swap
Obligations are entered into to protect the Company from fluctuations in
interest rates of its Indebtedness; (vi) additional Indebtedness of the Company
or any of its Subsidiaries not to exceed $10,000,000 in principal amount
outstanding at any time (which amount may, but need not, be incurred under the
Senior Credit Facility); (vii)
24
-16-
Refinancing Indebtedness; (viii) Indebtedness owed by the Company to any
Wholly-Owned Subsidiary or by any Subsidiary to the Company or any Wholly-Owned
Subsidiary of the Company; and (ix) guarantees by Subsidiaries of any
Indebtedness permitted to be incurred pursuant to this Indenture.
"Permitted Investments" means (i) Investments by the Company
or any Subsidiary to acquire the stock or assets of any Person (or Indebtedness
of such Person 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, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or 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, (ii)
Investments received by the Company or its Subsidiaries as consideration for a
sale of assets, including an Asset Sale effected in compliance with Section
4.16, (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 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 and (vi) additional Investments in an aggregate amount not
to exceed $2,500,000 at any time outstanding.
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges to the extent not required to be paid under this
Indenture, (ii) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens to the extent
not required to be paid under this Indenture, (iii) pledges or deposits to
secure lease obligations or nondelinquent obligations under workers'
compensation, unemployment insurance or similar legislation, (iv) Liens to
secure the performance of public statutory obligations that are not delinquent,
performance bonds or other obligations of a like nature (other than for
borrowed money), in each case incurred in the ordinary course of business, (v)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances
25
-17-
incurred in the ordinary course of business not interfering in any material
respect with the business of the Company or its Subsidiaries, (vi) Liens upon
specific items of inventory or other goods and proceeds of any Person securing
such Person's obligations in respect of letters of credit or bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods in the ordinary
course of business, (vii) judgment and attachment Liens not giving rise to an
Event of Default, (viii) leases or subleases granted to others in the ordinary
course of business consistent with past practice not interfering in any
material respect with the business of the Company or its Subsidiaries, (ix) any
interest or title of a lessor in the property subject to any lease, whether
characterized as capitalized or operating other than any such interest or title
resulting from or arising out of a default by the Company or its Subsidiaries
of its obligations under such lease and (x) Liens arising from filing UCC
financing statements for precautionary purposes in connection with true leases
of personal property that are otherwise permitted under this Indenture and
under which the Company or any of its Subsidiaries is a lessee.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Physical Securities" has the meaning provided in Section
2.02.
"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.
"Proceeds Purchase Date" shall have the meaning provided in
Section 4.16.
"Productive Assets" means assets of a kind used or usable by
the Company and its Subsidiaries in broadcast businesses or businesses
reasonably related thereto, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or re-
26
-18-
lated 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 Chancellor
Media, CMHC or the Company, pursuant to an effective registration statement
filed with the Commission in accordance with the Securities Act; provided,
however, that, in the case of a Public Equity Offering by Chancellor Media or
CMHC, Chancellor Media or CMHC contributes to the capital of the Company net
cash proceeds in an amount at least sufficient to redeem the 9 3/8% Notes, 8
3/4% Notes, 10 1/2% Notes and Securities, if any, called for redemption in
accordance with the terms thereof.
"Purchase Agreement" means the Purchase Agreement dated as of
December 15, 1997 by and among the Company, the Guarantors and the Initial
Purchasers relating to the purchase of $500.0 million aggregate principal
amount of Securities.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"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 (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.
27
-19-
"Registered Exchange Offer" means the consummation of the
offer to exchange the Series B Securities for all of the outstanding Series A
Securities in accordance with the Registration Rights Agreement.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
relating to $500.0 million aggregate principal amount of Securities and dated
the Issue Date, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times constitute the holders of a majority in
outstanding principal amount of such Designated Senior Indebtedness.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" means a Security that is a
"Restricted Security" as defined in Rule 144A(a)(3) under the
Securities Act; provided, however, that the Trustee shall be entitled to
request and conclusively rely on an Opinion of Counsel with respect to whether
any Security constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned
by the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced
by such Person on the security of such property.
28
-20-
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and Series B
Securities, 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 SEC promulgated thereunder.
"Senior Credit Facility" means the Second Amended and Restated
Loan Agreement, dated April 25, 1997, as amended from time to time, among the
Company, the lenders from time to time named party thereto, Toronto Dominion
(Texas), Inc., Bankers Trust Company, The Bank of New York, NationsBank of
Texas, N.A. and Union Bank of California, as managing agents, Toronto Dominion
Securities (USA), Inc., as arranging agent, and Toronto Dominion (Texas), Inc.,
as administrative agent for the lenders, together with the related documents
thereto (including, without limitation, any guarantee agreements, stock pledge
agreements and other security documents), in each case, as such agreements may
be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by
way of adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Senior Indebtedness" means any Indebtedness of the Company
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law), whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law)
29
-21-
on, and all other amounts owing in respect of, and all monetary obligations of
every nature under, (x) the Senior Credit Facility, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities and (y) all
Interest Swap Obligations. Notwithstanding the foregoing, Senior Indebtedness
shall not include any of the following amounts (whether or not constituting
Indebtedness as defined in this Indenture): (i) any Indebtedness of the Company
to a Subsidiary of the Company; (ii) Indebtedness and other amounts owing to
trade creditors incurred in connection with obtaining goods, materials or
services; (iii) Indebtedness represented by Disqualified Capital Stock; (iv)
any liability for federal, state, local or other taxes owed or owing by the
Company; and (v) any Indebtedness which is, by its express terms, subordinated
in right of payment to any other Indebtedness of the Company, including the 9
3/8% Notes, the 8 3/4% Notes, the 10 1/2% Notes, the 12 1/4% Subordinated
Exchange Debentures due 2008 of the Company and the 12% Subordinated Exchange
Debentures due 2009 of the Company.
"Series A Securities" means the 8 1/8% Senior Subordinated
Notes due 2007, Series A, issued, authenticated and delivered under this
Indenture, as amended or supplemented from time to time pursuant to the terms
of this Indenture.
"Series B Securities" means the 8 1/8% Senior Subordinated
Notes due 2007, Series B (the terms of which are identical to the Series A
Securities except that, unless any Series B Securities shall be issued as
Private Exchange Securities (as defined in the Registration Rights Agreement),
the Series B Securities shall be registered under the Securities Act, and shall
not contain the respective legend on the face of the from of the Series A
Securities), to be issued in exchange for the Series A Securities pursuant to
the Registered Exchange Offer and this Indenture or the Private Exchange (as
defined in the Registration Rights Agreement).
"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 at 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
30
-22-
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. Notwithstanding anything
in this Indenture to the contrary, 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
combined basis in accordance with GAAP and to financial information prepared on
such a combined 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.
"Tax Sharing Agreement" means the Tax Sharing Agreement
between CRBC and Chancellor Broadcasting as in effect on the 9 3/8% Notes Issue
Date.
"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 (a) any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and (b) who shall have
direct responsibility for the administration of this Indenture.
"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 9 3/8% Notes 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
31
-23-
evidencing such Indebtedness) or (2) is directly or indirectly liable for any
Indebtedness of such Subsidiary, (b) the creditors with respect to Indebtedness
for borrowed money of such Subsidiary, having a principal amount in excess of
$5,000,000, have agreed in writing that they have no recourse, direct or
indirect, to the Company or any other Subsidiary of the Company (other than
Unrestricted Subsidiaries), including, without limitation, recourse with
respect to the payment of principal of or interest on any Indebtedness of such
Subsidiary and (c) at the time of designation of such Subsidiary such
Subsidiary has no property or assets (other than de minimis assets resulting
from the initial capitalization of such Subsidiary). Any such designation 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. Until otherwise designated by the Board of Directors of the
Company, National Cable Communications, L.P., a Delaware limited partnership,
shall be an Unrestricted Subsidiary.
"U.S. Government Obligations" has the meaning provided in
Section 8.01.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Securities" has the meaning provided in Section
2.02.
"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 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
32
-24-
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 9
3/8% Notes Issue Date;
(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.
33
-25-
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Series B Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibits A-1 and A-2 annexed hereto, as applicable. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage (and, in the case of Series B Securities that are Private Exchange Notes,
legends restricting the transfer thereof similar to the legend on the Series A
Securities). 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. Each Guarantor shall execute a Guarantee in the manner
set forth in Section 10A.02.
If an Officer, Secretary 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.
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.
34
-26-
The Trustee shall authenticate Series A Securities for
original issue in the aggregate principal amount of up to $500,000,000 upon
receipt of a written order of the Company in the form of an Officers'
Certificate. In addition, on or prior to the date of the Registered Exchange
Offer, the Trustee or an authenticating agent shall authenticate Series B
Securities to be issued at the time of the Registered Exchange Offer in the
aggregate principal amount of up to $500,000,000 upon receipt of an Officers
Certificate of the Company. In each case, 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 of
Securities outstanding at any time may not exceed $500,000,000 except as
provided in Section 2.07. 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.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in Exhibit A-1 ("Global
Securities"), deposited with the Trustee, as custodian for the Depository, and
shall bear the legend set forth on Exhibit B. The aggregate principal amount
of any Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued in the form of certificated Securities
in registered form, substantially in the form set forth in Exhibit A-1 (the
"Offshore Physical Securities"). Securities offered and sold in reliance on
any other exemption from registration under the Securities Act other than
35
-27-
as described in the preceding paragraph shall be issued in the form of
certificated Securities in registered form in substantially the form set forth
in Exhibit A-1 (the "U.S. Physical Securities"). The Offshore Physical
Securities and the U.S. Physical Securities are sometimes collectively herein
referred to as the "Physical Securities." Physical Securities shall initially
be registered in the name of the Depository or the nominee of such Depository
and be delivered to the Trustee as custodian for such Depository. Beneficial
owners of Physical Securities, however, may request registration of such
Physical Securities in their names or the names of their nominees.
Series B Securities may also be issued in the form of Global
Securities, and if so issued, will be treated as Global Securities under this
Indenture.
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.
Neither the Company nor any Affiliate of the Company may act as Paying Agent.
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.
36
-28-
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 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. 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 the provisions of Section 2.15 and Section 2.16,
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
37
-29-
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
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 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.
Any Holder of the Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry.
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. A Security
38
-30-
does not cease to be outstanding because the Company or any of its Affiliates
holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all
of the principal and interest due on the Securities payable on that date 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 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
re-
39
-31-
ceipt 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 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 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 Number.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification
40
-32-
numbers printed on the Securities. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 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.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered
in the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Exhibit B.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities
may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Deposi-
41
-33-
tory for any Global Security and a successor depository is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depository
to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Security to beneficial owners pursuant
to paragraph (b), the Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and deliver,
one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of Global Securities as
an entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver
to each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Securities, an equal aggregate principal
amount of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) or (c) shall, except as otherwise provided by paragraphs
(a)(i)(x) and (c) of Section 2.16, bear the legend regarding transfer
restrictions applicable to the Physical Securities set forth in Exhibit A-1.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
42
-34-
(i) the Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such
Security bears the Private Placement Legend, if (x) the requested
transfer is after December 22, 1999, provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Security, or portion thereof, at any time on or prior
to December 22, 1999, or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding
a beneficial interest in a Global Security, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) written instructions given in accordance with the
Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of a Global Security in an
amount equal to the principal amount of the beneficial interest in a Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor
and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole
investment discretion and that it
43
-35-
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the Global
Security, upon receipt by the Registrar of instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security in an amount
equal to the principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the circumstances contemplated by
paragraph (a)(i)(x) of this Section 2.16 exist, (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Security has been sold pursuant to an
effective registration statement under the Securities Act.
(d) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the
44
-36-
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 6 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) at least 60 days (unless a shorter
notice shall be satisfactory to the Trustee) but not 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 fewer than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
the Securities being redeemed are listed, or, if the Securities are not listed
on a national securities exchange, on a pro rata basis, by lot or in such other
fair and reasonable manner chosen at the discretion of the Trustee; provided,
however, that a redemption pursuant to the provisions of paragraph 6(b) of the
Securities shall be made 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 of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply
to
45
-37-
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 notice of redemption by
first-class mail to each Holder 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 (including
CUSIP numbers) 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, interest on Securities called for redemption
ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Securities is to receive
payment of the Redemption Price 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 fewer than all the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of
Securities to be redeemed and the
46
-38-
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 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 which 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, interest
on the Securities to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Securities are presented for
payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Trustee shall authenticate for the Holder a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment.
47
-39-
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 to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal 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 11.02.
SECTION 4.03. Limitation on Restricted Payments.
Neither the Company nor any of its Subsidiaries will, directly
or indirectly, (a) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital Stock of the
Company) on shares of the Company's Capital Stock, (b) purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to acquire shares of any class of such Capital
Stock, other than 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, (c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company or its Subsidiaries that is subordinate or junior
in right of payment to the Securities or (d) make any Investment (other than
Permitted Investments) (each of the foregoing prohibited actions set forth in
clauses (a), (b), (c) and (d) being referred to as a "Restricted Payment"), if
at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default has occurred and is continuing,
(ii) the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12, or (iii)
the aggregate amount
48
-40-
of Restricted Payments made by the Company on or after the Merger Date,
together with the aggregate amount of Restricted Payments made by CRBC
subsequent to the 9 3/8% Notes Issue Date and through September 4, 1997 (the
amount expended for such purposes, if other than in cash, being the fair market
value of such property as determined by the respective Board of Directors in
good faith) exceeds the sum of:
(A) (x) 100% of the aggregate Consolidated EBITDA of CRBC
from the 9 3/8% Notes Issue Date through September 4, 1997, plus 100%
of the aggregate Consolidated EBITDA of the Company from and after the
Merger Date (or, in the event that either such Consolidated EBITDA
shall be a deficit, minus 100% of such deficit), 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 entities and for the same periods, plus
(B) 100% of the aggregate net proceeds, including the
fair market value of property other than cash as determined by the
Board of Directors 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 Merger Date of Qualified Capital Stock of
the Company, plus 100% of the aggregate net proceeds, including the
fair market value of property other than cash as previously determined
by the board of directors of CRBC in good faith, previously received
by CRBC from any Person (other than a Subsidiary of CRBC) from the
issuance and sale on or subsequent to the 9 3/8% Notes Issue Date of
Qualified Capital Stock of CRBC (excluding any net proceeds from
issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Subsidiary of the Company or from
CRBC or any Subsidiary of CRBC, respectively, 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 or CRBC, respectively, upon such conversion or exchange), 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 sub-
49
-41-
sequent to the Merger Date, plus 100% of the aggregate net proceeds,
including the fair market value of property other than cash (valued as
provided in clause (iii)(B) above), previously received by CRBC as a
capital contribution on or subsequent to the 9 3/8% Notes Issue Date
(excluding the net proceeds from one or more Public Equity Offerings
by Chancellor Media or CMHC to the extent used to redeem the
Securities on or after the date of the Indenture).
Notwithstanding the foregoing, the provisions of this Section
4.03 shall not prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if the
dividend or distribution would have been permitted on the date of
declaration;
(2) the acquisition of Capital Stock or warrants, options
or other rights to acquire Capital Stock either (i) solely in exchange
for shares of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock, or (ii) 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;
(3) the acquisition of Indebtedness of the Company that
is subordinate or junior in right of payment to the Securities, either
(i) solely in exchange for shares of Qualified Capital Stock (or
warrants, options or other rights to acquire Qualified Capital Stock)
or for Indebtedness of the Company which 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 (ii) 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 Indebtedness of the Company which 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;
50
-42-
(4) payments by CRBC to fund the operating expenses of
Chancellor Broadcasting from the 9 3/8% Notes Issue Date through
September 4, 1997 and by the Company to fund the operating expenses of
CMHC from and after the Merger Date, in each case in an amount not to
exceed $500,000 per annum;
(5) payments by CRBC to Chancellor Broadcasting from the
9 3/8% Notes Issue Date through September 4, 1997 and by the Company
to CMHC from and after the Merger Date, respectively, in each case to
make payments pursuant to (a) the Financial Monitoring and Oversight
Agreements or (b) the Tax Sharing Agreement;
(6) payments by (a) CRBC to repurchase or to enable
Chancellor Broadcasting to repurchase Capital Stock or other
securities of Chancellor Broadcasting from employees of Chancellor
Broadcasting or CRBC, in each case, from the 9 3/8% Notes Issue Date
through September 4, 1997, and (b) by the Company to repurchase or to
enable CMHC to repurchase Capital Stock or other securities of CMHC
from employees of CMHC or the Company, in each case, after the Merger
Date, in an aggregate amount not to exceed $5,000,000;
(7) payments by CRBC to Chancellor Broadcasting from the
9 3/8% Notes Issue Date through September 4, 1997, or by the Company
to CMHC from and after the Merger Date, in each case, to enable
Chancellor Broadcasting or CMHC, respectively, to redeem or repurchase
stock purchase or similar rights in an aggregate amount not to exceed
$500,000;
(8) payments, not to exceed $100,000 in the aggregate, by
CRBC to Chancellor Broadcasting from the 9 3/8% Notes Issue Date
through September 4, 1997, together with payments by the Company to
CMHC after the Merger Date, in each case to enable Chancellor
Broadcasting or CMHC, respectively, to make cash payments to holders
of its Capital Stock in lieu of the issuance of fractional shares of
its Capital Stock; and
(9) 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 (9)
unless, after giving effect to such transaction (and the incurrence of
any Indebtedness in connection therewith and the use of the pro-
51
-43-
ceeds thereof), the Company would be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.12 such that after incurring that $1.00 of additional Indebtedness,
the Leverage Ratio would be less than 5.5 to 1;
provided, however, that in the case of clauses 5(a), (6), (7), (8) and (9), no
Default or 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 by the Company on or subsequent to the Merger Date and the aggregate
amount of Restricted Payments made by CRBC subsequent to the 9 3/8% Notes Issue
Date and through September 4, 1997, amounts expended pursuant to clauses (1),
(2), (3) (but only to the extent that Indebtedness is acquired in exchange for,
or with the net proceeds from, the issuance of Qualified Capital Stock or
warrants, options or other rights to acquire Qualified Capital Stock), (5)(a),
(6), (7), (8) and (9) (including any amounts previously expended by CRBC
pursuant to clauses (1), (2), (3) (but only to the extent that Indebtedness is
acquired in exchange for, or with the net proceeds from, the issuance of
Qualified Capital Stock or warrants, options or other rights to acquire
Qualified Capital Stock), (5)(a), (6), (7), (8) and (9) under Section 4.03 of
the 9 3/8% Notes Indenture) shall be included in such calculation.
Prior to any Restricted Payment under the first paragraph of
this Section 4.03, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the computation by which the amount available for
Restricted Payments pursuant to such paragraph was determined. The Trustee
shall have no duty or responsibility to determine the accuracy or correctness
of this computation and shall be fully protected in relying on such Officers'
Certificate.
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
52
-44-
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 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
53
-45-
Company, are reasonably adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries.
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 copy of the annual report on Form 10-K of the Company
as filed with the SEC or 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) (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 deliver to the Trustee by registered or certified mail or by
telegram,
54
-46-
telex or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice or other
action as soon as possible and in any event within five Business Days of its
becoming aware of such occurrence.
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. SEC Reports.
The Company shall file with the Trustee and provide to the Securityholders,
within 15 days after it files them with the SEC, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. In the event that the Company is no longer required to
furnish such reports to its securityholders pursuant to the Exchange Act, the
Company will cause its consolidated financial statements, comparable to those
which would have been required to appear in annual or quarterly reports, to be
delivered to the Holders of the Securities. The Company shall also comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
55
-47-
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 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. Limitation on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries will, directly
or indirectly, enter into or permit to exist any 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 $1,000,000 or more, such determination shall 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 $5,000,000 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 reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder, or to any obligations of the Company
under the Financial Monitoring and Oversight Agree-
56
-48-
ments, the Tax Sharing Agreement or any employment agreement with any officer
of the Company (provided that each amendment of any of the foregoing agreements
shall be subject to the limitations of this Section 4.11), as well as
reasonable and customary investment banking, financial advisory, commercial
banking and similar fees and expenses paid to BT Securities Corporation and its
Affiliates.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
Neither the Company nor any of its Subsidiaries will, directly
or indirectly, create, incur, assume, guarantee, acquire or become liable for,
contingently or otherwise, (collectively "incur") any Indebtedness other than
Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company
or any Subsidiary may incur Indebtedness if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's Leverage
Ratio 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 or permit to exist or become effective
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,
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 permitted under the 9 3/8%
Notes Indenture, the 8 3/4% Notes Indenture and the 10 1/2% Notes Indenture
existing on the Issue Date (including the Credit Agreement and the Senior
Credit Facility, as applicable) as such agreements are from time to time in
effect; provided, however, that any amendments or modifications of such
agreements which affect the encumbrances or restrictions of the types subject
to
57
-49-
this Section 4.13 shall 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) 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 or any other agreement evidencing Indebtedness permitted under
this Indenture; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such refinancing, replacement or
substitution agreement or any such other agreement are not less favorable to
the Company in all material respects 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),
or (7) restrictions on the transfer of assets subject to any Lien permitted
under this Indenture imposed by the holder of such Lien.
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated
Indebtedness.
The Company shall not incur or suffer to exist any
Indebtedness that is senior in right of payment to the Securities and is
expressly subordinate in right of payment to any other Indebtedness of the
Company.
SECTION 4.15. Change of Control.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to repurchase all outstanding 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 accrued
interest, if any, to the date of repurchase. Prior to the mailing of the
notice referred to below, but in any event within 30 days following the date on
which a Change of Control occurs, the Company covenants to (i) repay in full
all Indebtedness under the Senior Credit Facility (and terminate all
commitments thereunder) or offer to repay in full all such Indebtedness (and
terminate all such commitments) and to repay the Indebtedness owed to (and
terminate the commitments of) each lender which has accepted such offer or (ii)
obtain the requisite consents under the Senior Credit Facility to permit the
repurchase of the Securities as provided below. The Company shall first comply
with the covenant in the preceding sentence before it shall be required to
repurchase Securities pursuant to the pro-
58
-50-
visions described in this Section 4.15; provided that the Company's failure to
comply with such covenant shall constitute an Event of Default under Section
6.01(3).
(b) Within 30 days following the date upon which a Change of
Control occurs (the "Change of Control Date"), the Company shall send, by first
class mail, 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. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of Control Offer.
Such notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 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 accrue interest 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 for transfer together with such
customary documents as the Company reasonably may request, to the
Paying Agent 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;
(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
59
-51-
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 by the Trustee to the Company.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the purchase of the Securities pursuant to a Change of Control Offer. To
the extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Change of Control Offer, the Company shall comply with
the provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
SECTION 4.16. 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
60
-52-
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
$2,500,000, 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
the Subsidiary, as the case may be, from such Asset Sale is 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 permitted to
be operated by the Company or a Subsidiary hereunder (including by way of the
transfer of the capital stock) for all or substantially all the assets
(including by way of the transfer of the 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 the principal of any Senior Indebtedness (and, to the
extent such Senior Indebtedness 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 (pro rata among the holders of
Securities tendered to the Company for purchase, based upon the aggregate
principal amount of the Securities so tendered) tendered to the Company for
purchase at a price equal to 100% of the principal amount thereof, plus accrued
interest thereon 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, prior to making any such Net Proceeds Offer, the Company shall, to the
extent required pursuant to the 9 3/8% Indenture as in effect on the Issue
Date, offer to use such Net Cash Proceeds to repurchase and use all or a
portion of such Net Cash Proceeds to repurchase 9 3/8% Notes and then, to the
extent required pursuant to the 8 3/4% Indenture as in effect on the Issue
Date, offer to use the remaining Net Cash Proceeds to repurchase 8 3/4% Notes
and then, to the extent required pursuant to the 10 1/2% Indenture as in effect
on the Issue Date, offer to use the remaining Net Cash Proceeds to repurchase
10 1/2% Notes, in which event the Company shall be required to use only the Net
Cash Proceeds remaining after such repurchases to make the Net Proceeds Offer
contemplated by this Section 4.16; provided further, that if at
61
-53-
any time any non-cash consideration received by the Company or any Subsidiary
of the Company, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash, then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the
Net Cash Proceeds thereof shall be applied in accordance with clause (iii)
above; provided, further that the Company may defer making a Net Proceeds Offer
until the aggregate Net Cash Proceeds from Asset Sales (taking into account any
Net Cash Proceeds used to repurchase 9 3/8% Notes, 8 3/4% Notes and 10 1/2%
Notes pursuant to the second immediately preceding proviso) to be applied
equals or exceeds $5,000,000. In the event of a transaction effected in
accordance with Section 5.01 which involves less than all of the property or
assets of the Company, only property or assets not included in such transaction
shall be deemed to have been transferred in an Asset Sale.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds Offer pursuant to this
Section 4.16 shall be mailed, by first class mail, by the Company to Holders of
the Securities as shown on the applicable register of Holders of the 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 (B)
above, within 180 days following the termination of such agreement but in no
event later than 360 days after the relevant Asset Sale, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer and
shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.16 and that Holders of Securities may elect to tender their
Securities in denominations of less than $1,000 and that all
Securities validly tendered will be accepted for payment; provided,
however, that if the aggregate principal amount of Securities tendered
in a Net Proceeds Offer plus accrued interest at the expiration of
such offer exceeds the aggregate amount of the Net Proceeds Offer, the
Company shall select the Securities to be purchased on a pro rata
basis (based upon the principal amount tendered);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30
days nor later than 45 days from the date
62
-54-
such notice is mailed, other than as may be required by law) (the
"Proceeds Purchase 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 Net
Proceeds Offer shall cease to accrue interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender the
Security, properly endorsed for transfer together with such other
customary documents as the Company reasonably may request, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five Business
Days prior to the Proceeds Purchase 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
Net Proceeds Offer.
(c) On or before the Proceeds Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof validly tendered
pursuant to the Net Proceeds 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 funds deposited with the Paying Agent in accordance with the preced-
63
-55-
ing 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 payment of the purchase price for the Securities
accepted for purchase, the Trustee shall return the Securities purchased to the
Company for cancellation. Any Securities not so accepted shall be promptly
mailed by the Company to the Holder thereof.
(d) If the aggregate principal amount of Securities validly
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 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.
(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with their purchase of Securities pursuant to a Net Proceeds Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Net Proceeds Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Net Proceeds Offer by virtue thereof.
SECTION 4.17. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries to issue
any Preferred Stock (other than to the Company or to a Wholly Owned Subsidiary
of the Company) or permit any Person (other than the Company or a Wholly Owned
Subsidiary of the Company) to own any Preferred Stock of a Subsidiary (other
than Acquired Preferred Stock; provided that at the time the issuer of such
Acquired Preferred Stock becomes a Subsidiary of the Company or merges with the
Company or any of its Subsidiaries, and after giving effect to such
transaction, the Company shall be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.12).
64
-56-
SECTION 4.18. Limitation on Liens.
Neither the Company nor any of its Subsidiaries shall create,
incur, assume or suffer to exist any Liens upon any of their respective assets,
except for (a) Permitted Liens, (b) Liens to secure Senior Indebtedness or
guarantees thereof permitted under this Indenture, (c) Liens permitted under
the 9 3/8% Notes Indenture, the 8 3/4% Notes Indenture and the 10 1/2% Notes
Indenture existing on the Issue Date, (d) Liens in favor of the Trustee, (e)
Liens to secure Guarantor Senior Indebtedness permitted under this Indenture
and (f) any Lien to secure the replacement, refunding, extension or renewal, in
whole or in part, of any Indebtedness described in the foregoing clauses;
provided that, to the extent any such clause limits the amount secured or the
asset subject to such Liens, no extension or renewal will increase the assets
subject to such Liens or the amount secured thereby beyond the assets or
amounts set forth in such clauses.
SECTION 4.19. Guarantees of Certain Indebtedness.
The Company will not permit any of its Subsidiaries, directly
or indirectly, to incur, guarantee or secure through the granting of Liens, the
payment of any Indebtedness under the Senior Credit Facility or any refunding
or refinancing thereof in each case unless such Subsidiary, the Company and the
Trustee execute and deliver a supplemental indenture pursuant to which such
Subsidiary becomes a Guarantor of the Securities and which evidences such
Subsidiary's Guarantee of the Securities, such Guarantee to be a senior
subordinated unsecured obligation of such Subsidiary. Neither the Company nor
any Guarantor shall be required to make a notation on the Securities or its
Guarantee to reflect any such subsequent Guarantee. Nothing in this Section
4.19 shall be construed to permit any Subsidiary of the Company to incur
Indebtedness otherwise prohibited by Section 4.12.
SECTION 4.20. Limitation on Sale and Leaseback Transactions.
Neither the Company nor any of its Subsidiaries will enter
into any Sale and Leaseback Transaction, except that the Company or any
Subsidiary may enter into a Sale and Leaseback Transaction if, immediately
prior thereto, and after giving effect to such Sale and Leaseback Transaction
(the Indebtedness thereunder being equivalent to the Attributable Value
thereof) the Company could incur at least $1.00 of additional Indebted-
65
-57-
ness (other than Permitted Indebtedness) in compliance with Section 4.12.
SECTION 4.21. Limitation on Line of Business.
For so long as any Securities are outstanding, the Company and
its Subsidiaries will engage solely in the ownership and operation of broadcast
businesses or businesses related thereto, including, without limitation, media
representation, sale of advertising and such other activities as are
incidential or similar or related thereto.
SECTION 4.22. Limitation on Asset Swaps.
Neither the Company nor any of its Subsidiaries shall engage
in any Asset Swaps, unless: (i) at the time of entering into the agreement to
swap assets and immediately after giving effect to the proposed Asset Swap, no
Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; (ii) the Company would, after giving pro forma
effect to the proposed Asset Swap, have been permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2,500,000 by the Board of Directors, as evidenced
by a Board Resolution delivered to the Trustee) are substantially the same at
the time of entering into the agreement to swap assets; and (iv) at the time
of the consummation of the proposed Asset Swap, the percentage of any decline
in the fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company, calculated from the
time the agreement to swap assets was entered into; provided, however, that
this Section 4.22 shall not apply to any of the Pending Transactions.
66
-58-
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) The Company shall 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 shall be the survivor of such
merger or consolidation or (B) the surviving or transferee Person is a
corporation, partnership or trust organized and existing under the
laws of the United States, any State thereof or the District of
Columbia and such surviving or transferee Person shall expressly
assume by supplemental indenture all the obligations of the Company
under the Securities and this Indenture;
(2) immediately after giving effect to such transaction
and the use of the proceeds therefrom (on a pro forma basis, including
any Indebtedness incurred or anticipated to be incurred in connection
with such transaction), the Company or the surviving or transferee
Person is able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12;
(3) immediately after giving effect to such transaction
(including any Indebtedness incurred or anticipated to be incurred in
connection with the transaction) no Default or Event of Default shall
have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture, that
the surviving or transferee Person agrees by supplemental indenture to
be bound hereby, 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
67
-59-
Capital Stock of which constitutes all or substantially all of the properties
and assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
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:
(1) the Company defaults in the payment of interest on
the Securities when the same becomes due and payable and the Default
continues for a period of 30 days (whether or not such payment shall
be prohibited by Article Ten); or
(2) the Company defaults in the payment of the principal
of any Securities when the same becomes due and payable, at maturity,
upon redemption or otherwise (whether or not such payment shall be
prohibited by Article Ten); or
(3) the Company fails to observe or perform any other
covenant or agreement contained in the Securities or this Indenture
and the Default continues for a period of 30 days after written notice
thereof specifying such Default has been given to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount
of the outstanding Securities; or
68
-60-
(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 (giving
effect to any extensions thereof) 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 $5,000,000 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; or
(5) one or more judgments in an aggregate amount in
excess of $5,000,000 (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 remain undischarged or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable; or
(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 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.
69
-61-
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,
by notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by written notice to the Company
and the Trustee, and the Trustee shall, upon the request of such Holders,
declare the aggregate principal amount of the Securities outstanding, together
with accrued but unpaid interest, if any, on all Securities 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 Senior Credit
Facility, shall become due and payable upon the first to occur of an
acceleration under the Senior Credit Facility or 5 Business Days after receipt
by the Company and the Representative under the Senior 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) occurs and is continuing with respect to
the Company, all unpaid principal and accrued interest on the Securities then
outstanding 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.
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 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 or interest on the Securities which have 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
70
-62-
Officer's 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 or interest 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 principal of or interest on any Security as specified
in clauses (1) and (2) of Section 6.01.
SECTION 6.05. Control by Majority.
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, which is not inconsistent with such direction.
71
-63-
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 reasonably
satisfactory to the Trustee indemnity or security against any loss,
liability or expense to be incurred in compliance with such request;
(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.
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 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
72
-64-
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 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 for amounts due under Sections 6.09 and
7.07;
73
-65-
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 principal 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 and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If 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.
74
-66-
(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 (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(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:
(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
75
-67-
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 in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
(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 conclusively 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.
(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 11.04 and 11.05. 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 which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this Indenture.
(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,
76
-68-
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 at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(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 of its selection 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
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 the recitals
contained herein and in the Securities shall be taken as the statements of the
Company and the Trustee shall not be responsible for any statement of
77
-69-
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, as their name and address appears in the security register,
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, 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) or 6.01(2) or (ii) any Default or Event of Default
of which a Trust Officer shall have received written notification and such
notice references the Securities and the Indenture or obtained actual
knowledge.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 of each year beginning with
May 15, 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).
78
-70-
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon in writing 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 and all loss, liability, damage, claim 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 for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee 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.
79
-71-
The provisions of this Section 7.07 shall survive termination
of this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. 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. 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;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall 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 (at the
expense of the Company), 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
80
-72-
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.
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.
81
-73-
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.
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 (except for certain obligations of the Company to
register the transfer or exchange of such Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold moneys for payment in
trust) 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 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 which, through the
payment of interest thereon and principal 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 the principal of and interest on the Securities on the dates such
installments of interest or principal 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
82
-74-
TIA; provided, further, that from and after the time of deposit, the
Funds deposited shall not be subject to the rights of holders of
Senior Indebtedness pursuant to the provisions of Article Ten; 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) The Company shall have delivered to the Trustee an
Opinion of Counsel or a private letter ruling issued to the Company by
the IRS to the effect that the Holders of the Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of the deposit and related defeasance and will be subject to
federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had not been
exercised and, in the case of an Opinion of Counsel furnished in
connection with a Discharge pursuant to the foregoing, accompanied by
a private letter ruling issued to the Company by the IRS to such
effect;
(3) 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;
(4) 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;
(5) The Company shall have paid or duly provided for
payment of all amounts then due to the Trustee pursuant to Section
7.07;
(6) 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
Senior Credit Facility) to which the Company or any of its
Subsidiaries is a party or by which it or its property is bound; and
(7) An Officers' Certificate and an Opinion of Counsel to
the effect that all conditions precedent to the defeasance have been
complied with.
83
-75-
Notwithstanding the foregoing, the Opinion of Counsel required
by subparagraph 2 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 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.
84
-76-
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 and accrued
and unpaid interest on the Securities. The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 8.01 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company, upon the Company's written request, any Funds held by them for the
payment of principal 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 on or principal
of any Securities because of the reinstatement of its obligations, the Com-
85
-77-
pany 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:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(4) 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:
86
-78-
(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;
(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;
(5) make any change in provisions of this Indenture
protecting the right of each Holder of a Security to receive payment
of principal of and interest on such Security on or after the due date
thereof or to bring suit to enforce such payment or permitting Holders
of a majority in principal amount of 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.
87
-79-
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 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. 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.
88
-80-
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 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 Subordinated to Senior Indebtedness.
The Company covenants and agrees and the Trustee and each
Holder of the Securities, by its acceptance thereof, likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article Ten; and the Trustee and each Person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts and
agrees that the payment of all Obligations on the Securities (except for the
payment of fees and expenses of the Trustee and any indemnity under Section
7.07) by the Company shall, to the extent and in the manner herein set forth,
be subordinated and junior in right of payment to the prior payment in full in
cash or Cash Equivalents (or such payment shall be duly
89
-81-
provided for to the satisfaction of the holders of the Senior Indebtedness) of
all Obligations on the Senior Indebtedness; that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness, and that each holder of Senior Indebtedness whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Indebtedness in reliance upon the covenants and
provisions contained in this Indenture and the Securities.
SECTION 10.02. No Payment on Securities in Certain Circumstances.
(a) If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or
otherwise, of any principal of, interest on or any other amounts owing with
respect to any Senior Indebtedness, 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 which are
subordinated to the Senior Indebtedness 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 Indebtedness consisting of each
class of Designated Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or to pay
interest accrued on outstanding Securities)) shall 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. In addition, if any other event of default occurs and is continuing
(or if such an event of default would occur upon any payment with respect to
the Securities or would arise upon the passage of time as a result of such
payment) with respect to any Designated Senior Indebtedness (as such event of
default is defined in the instrument creating or evidencing such Designated
Senior Indebtedness) and such event of default permits the holders of such
Designated Senior Indebtedness then outstanding to accelerate the maturity
thereof and if the Representative for the respective issue of Designated Senior
Indebtedness gives written notice of the event of default to the Company and
the Trustee (a "Default Notice"), then, unless and until all events of default
have been cured or
90
-82-
waived or have ceased to exist or the Company and the Trustee receive notice
from the Representative for the respective issue of Designated Senior
Indebtedness 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 shall 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 which are subordinated to the Senior Indebtedness 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
Indebtedness consisting of each class of Designated Senior Indebtedness then
outstanding, which subordinated securities shall 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 herein
to the contrary, in no event will a Blockage Period extend beyond 180 days from
the date the payment on the Securities was due and only one such Blockage
Period may be commenced within any 360 consecutive days. For all purposes of
this Section 10.02(a), no event of default which existed or was continuing on
the date of the commencement of any Blockage Period with respect to the
Designated Senior Indebtedness initiating such Blockage Period shall be, or be
made, the basis for the commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such event of default shall have 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).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 10.02(a), such payment shall be held in trust for the
benefit of, and shall be
91
-83-
paid over or delivered to, the holders of Senior Indebtedness (pro rata to such
holders on the basis of the respective amount of Senior Indebtedness held by
such holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Senior Indebtedness, if any,
received from the holders of Senior Indebtedness (or their Representatives) or,
if such information is not received from such holders or their Representatives,
from the Company and only amounts included in the information provided to the
Trustee shall be paid to the holders of Senior Indebtedness.
Nothing contained in this Article Ten 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 Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Indebtedness thereafter due or
declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment with respect to
Obligations on the Securities.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshalling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of the Senior Indebtedness,
before any payment or distribution of any kind or character is made on account
of any Obligations on the Securities, or for the acquisition of any of the
Securities for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding,
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee under this Indenture would be entitled (other than any payments
of fees and expenses of the Trustee and any indemnity made under Section 7.07),
except for the provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or
92
-84-
distribution, or by the Holders of the Securities or by the Trustee under this
Indenture if received by them, directly to the holders of Senior Indebtedness
(pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of Senior Indebtedness remaining unpaid
until all such Senior Indebtedness has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether
by or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then, if such
payment is recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Indebtedness or
part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 10.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness (pro rata to such holders
on the basis of the respective amount of Senior Indebtedness held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full in cash or Cash Equivalents, after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the
93
-85-
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets, to another corporation upon the
terms and conditions provided in Article Five and as long as permitted under
the terms of the Senior Indebtedness shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, assume the Company's obligations hereunder in
accordance with Article Five.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 10.02 and 10.03, from making payments at any time for the purpose
of making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Section 10.02 or 10.03, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of, and interest on, the Securities to the Holders entitled thereto unless at
least one Business Day prior to the date upon which such payment would
otherwise become due and payable, the Trustee shall have received the written
notice provided for in Section 10.02(a) or in Section 10.07. The Company shall
give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
SECTION 10.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of
all Senior Indebtedness, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Senior Indebtedness by or on behalf of the Company or by or on behalf of
the Holders by virtue of this Article Ten which otherwise would have been made
to the Holders shall, as between the Company and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article Ten are
and are intended solely for the purpose of defining the relative rights of the
Holders
94
-86-
of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.
SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, 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 and any
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on its behalf from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
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 in respect of the Securities pursuant to the provisions of
this Article Ten. Regardless of anything to the contrary contained in this
Article Ten or elsewhere in this Indenture, the Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Indebtedness or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until the Trust Officer
of the Trustee shall have received notice in writing from the Company, or from
a holder of Senior Indebtedness or a Representative therefor, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist;
provided, however, that if a Trust Officer of the Trustee shall not have
received, at least three Business Days prior to the date upon which, by the
terms hereof, any such money may become payable for any purpose (including,
without limitation, the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, as the case may be,
95
-87-
in respect of any Security), the notice with respect to such money provided for
in this Section 10.07, then, anything herein contained to the contrary
notwithstanding, 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 three Business Days prior to such date.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Senior
Indebtedness 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 Ten, 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 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or the Holders of the Securities, for
the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness 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
Ten.
SECTION 10.09. Trustee's Relation to Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness which may at
96
-88-
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness and nothing in this Indenture
shall deprive the Trustee or any such agent of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
Ten, and no implied duties, covenants, responsibilities or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Indebtedness, the distribution may be made and the
notice may be given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Securities to the holders of the
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of pay-
97
-89-
ment or extend the time of payment of, or renew or alter, Senior Indebtedness,
or otherwise amend or supplement in any manner Senior Indebtedness, or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the payment or collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 10.11. Securityholders Authorize Trustee To Effectuate Subordination
of Securities.
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Indebtedness and the Holders of Securities, the subordination
provided in this Article Ten, and appoints the Trustee such Holder's
attorney-in-fact to act for and on behalf of each such Holder of Securities for
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its Securities and accrued interest in the form
required in those proceedings.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Ten will
not be construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
98
-90-
ARTICLE TEN A
GUARANTEES OF THE SECURITIES
SECTION 10A.01. Guarantees.
Subject to the provisions of this Article Ten A, each
Guarantor hereby jointly and severally unconditionally guarantees to each
Holder of a Security authenticated and made available for delivery by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities or the
obligations of the Company or any other Guarantors to the Holders or the
Trustee hereunder, that: (a) the principal of and interest on the Securities
will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Securities and all other
Obligations on the Securities will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
Obligations on the Securities, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at final stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, for whatever reason, each Guarantor will be
obligated to pay the same immediately. An Event of Default under this
Indenture or the Securities shall constitute an event of default under the
Guarantees, and shall entitle the Holders of Securities to accelerate the
obligations of the Guarantors hereunder in the same manner and to the same
extent as the Obligations of the Company on the Securities.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding
99
-91-
first against the Company, protest, notice and all demands whatsoever and
covenants that its Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
the Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or such Guarantor, any amount paid by the Company or such Guarantor to the
Trustee or such Holder, the Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between it, on the one hand, and the Holders of Securities and the
Trustee, on the other hand, (a) subject to this Article Ten A, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Section
6.02 for the purposes of the Guarantees, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Section 6.02, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the
Guarantees.
The Guarantees shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator,
past, present or future, of any Guarantor, as such, shall have any personal
liability under the Guarantees by reason of his, her or its status as such
stockholder, officer, director, employer or incorporator.
100
-92-
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that in no event
shall any Guarantor's obligations under its Guarantee be subject to avoidance
under any applicable fraudulent conveyance or similar law of any relevant
jurisdiction. Therefore, in the event that the Guarantees would, but for this
sentence, be subject to avoidance, then the liability of the Guarantors under
the Guarantees shall be reduced to the extent necessary such that such
Guarantees shall not be subject to avoidance under the applicable fraudulent
conveyance or similar law. Subject to the preceding limitation on liability,
the Guarantee of each Guarantor constitutes a guarantee of payment in full when
due and not merely a guarantee of collectability.
SECTION 10A.02. Execution and Delivery of the Guarantees.
To further evidence the Guarantees set forth in Section
10A.01, each Guarantor hereby agrees that a notation of such Guarantees,
substantially in the form included in Exhibit A hereto, shall be endorsed on
each Security authenticated and made available for delivery by the Trustee.
The validity and enforceability of any Guarantee shall not be affected by the
fact that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 10A.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Guarantor's
Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any
Guarantee set forth in this Indenture on behalf of the Guarantor.
101
-93-
SECTION 10A.03. Additional Guarantors.
Any Person may become a Guarantor by executing and delivering
to the Trustee (a) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions of this Indenture
as a Guarantor, and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning fraudulent conveyance laws,
creditors' rights and equitable principles as may be acceptable to the Trustee
in its discretion).
SECTION 10A.04. Limitation of Guarantors' Liability.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees
under the Senior Credit Facility) and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
10A.06, result in the obligations of such Guarantor under the Guarantees not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under the
Guarantees shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
SECTION 10A.05. Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor or shall prevent any sale or conveyance
of the property of a Guarantor, as an entirety or substantially as an entirety,
to the Company or another Guarantor. Upon any such consolidation, merger,
sale or conveyance, the Guarantee given by such Guarantor shall no longer have
any force or effect.
(b) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into a Person (provided such Person is a corporation, partnership or trust)
other than the Company or an-
102
-94-
other Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to any such Person
(whether or not an Affiliate of the Guarantor). Upon the sale or disposition
of a Guarantor (or all or substantially all of its assets) to a Person which is
not a Subsidiary of the Company, which is otherwise in compliance with this
Indenture (including Section 4.16), such Guarantor shall be deemed released
from all its obligations under this Indenture and its Guarantee and such
Guarantee shall terminate; provided, however, that any such termination shall
occur only to the extent that all obligations of such Guarantor under the
Senior Credit Facility and all its guarantees of, and under all of its pledges
of assets or other security interests which secure, Indebtedness of the Company
shall also terminate upon such release, sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 10A.05. Any Guarantor not so released remains liable for the
full amount of principal and interest on the Securities as provided in this
Article Ten A.
SECTION 10A.06. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees; provided that such Funding Guarantor's
contribution right with respect to any such Guarantor shall be subordinated in
right of payment to such Guarantor's Guarantor Senior Indebtedness on the same
basis as its Guarantee is subordinated to Guarantor Senior Indebtedness
pursuant to Article Ten B.
SECTION 10A.07. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise
from the existence, payment, performance or
103
-95-
enforcement of such Guarantor's obligations under the Guarantees and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration or indemnification, and any right to participate in
any claim or remedy of any Holder of Securities against the Company, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and the Securities shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the
Securities, and shall, subject to the provisions of Article Ten B, forthwith be
paid to the Trustee for the benefit of such Holders to be credited and applied
upon the Securities, whether matured or unmatured, in accordance with the terms
of this Indenture. Each Guarantor acknowledges that it will receive direct or
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10A.07 is knowingly
made in contemplation of such benefits.
ARTICLE TEN B
SUBORDINATION OF GUARANTEES
SECTION 10B.01. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities, by its acceptance thereof, likewise covenants and
agrees, that all Guarantees shall be issued subject to the provisions of this
Article Ten B; and the Trustee and each Person holding any Guarantee, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees that the payment of all Obligations on the Securities pursuant to
the Guarantees (except for the payment of fees and expenses of the Trustee
under Section 7.07) made by or on behalf of such Guarantor shall, to the extent
and in the manner herein set forth, be subordinated and junior in right of
payment to the prior payment in full in cash or Cash Equivalents (or such
payment shall be duly provided for to the satisfaction of the holders of the
Guarantor Senior Indebtedness of any Guarantor) of all existing and future
Obligations on the Guarantor Senior Indebtedness of such Guarantor; that
104
-96-
the subordination is for the benefit of, and shall be enforceable directly by,
the holders of Guarantor Senior Indebtedness of any Guarantor, and that each
holder of Guarantor Senior Indebtedness of any Guarantor whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Guarantor Senior Indebtedness of any Guarantor in
reliance upon the covenants and provisions contained in this Indenture and the
Guarantees.
This Section 10B.01 and the following Sections 10B.02 through
10B.15 of this Article Ten B shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Guarantor Senior Indebtedness of any Guarantor and, to the extent set forth in
Section 10B.02, holders of Designated Guarantor Senior Indebtedness; and such
provisions are made for the benefit of the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in 10B.02, holders
of Designated Guarantor Senior Indebtedness; and such holders (to such extent)
are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 10B.02. No Payment on Guarantees in Certain Circumstances.
(a) If any default occurs and is continuing in the
payment when due, whether at maturity, upon any redemption, by declaration or
otherwise, of any principal of, interest on or any other amounts owing with
respect to any Guarantor Senior Indebtedness, 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 and
guaranteed by the Guarantors on the same basis as provided in the Guarantees
in payment of interest accrued on the Securities or (iii) in securities issued
by the Company and guaranteed by the Guarantors which securities and guarantees
thereof are subordinated to the Guarantor Senior Indebtedness at least to the
same extent as the Guarantees 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 any such guarantee in respect of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of Guarantor Senior Indebtedness consisting of each class of
Designated Guarantor Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or to pay
interest accrued on outstanding Securi-
105
-97-
ties)) shall be made by any Guarantor or any other Person on behalf of such
Guarantor with respect to any Obligations on the Securities or under the
Guarantees or to acquire any of the Securities for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
(or if such an event of default would occur upon any payment with respect to
the Securities or would arise upon the passage of time as a result of such
payment) with respect to any Designated Guarantor Senior Indebtedness (as such
event of default is defined in the instrument creating or evidencing such
Designated Guarantor Senior Indebtedness) and such event of default permits the
holders of such Designated Guarantor Senior Indebtedness then outstanding to
accelerate the maturity thereof and if the Representative for the respective
issue of Designated Guarantor Senior Indebtedness gives a Default Notice to the
Company, the Guarantors and the Trustee, then, unless and until all events of
default have been cured or waived or have ceased to exist or the Company, the
Guarantors and the Trustee receive notice from the Representative for the
respective issue of Designated Guarantor Senior Indebtedness terminating the
Blockage Period, neither the Guarantors nor any other Person on behalf of the
Guarantors shall 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 and guaranteed by the
Guarantors on the same basis as provided in the Guarantees in payment of
interest accrued thereon or (iii) in securities issued by the Company and
guaranteed by the Guarantors which securities and guarantees thereof are
subordinated to the Guarantor Senior Indebtedness at least to the same extent
as the Guarantees 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 any such guarantee in respect of such subordinated securities to be
consented to by the holders of at least a majority of the outstanding amount of
Guarantor Senior Indebtedness consisting of each class of Designated Guarantor
Senior Indebtedness then outstanding, which subordinated securities shall be
issued in exchange for outstanding Securities or to pay interest accrued on
outstanding Securities) with respect to any Obligations of a Guarantor on the
Securities or under the Guarantees or to acquire any of the Securities for cash
or property or otherwise. Notwithstanding anything herein to the contrary, in
no event will a Blockage Period extend beyond 180 days from the date the
payment on the Securities was due and only one such Blockage Period may be
commenced within any 360 consecutive days. For all purposes of this Section
10B.02(a), no event of default which existed or was continuing
106
-98-
on the date of the commencement of any Blockage Period with respect to the
Designated Guarantor Senior Indebtedness initiating such Blockage Period shall
be, or be made, the basis for the commencement of a second Blockage Period by
the Representative of such Designated Guarantor Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such event of default shall
have 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).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder of a Guarantee when such
payment is prohibited by Section 10B.02(a), such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Guarantor Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Indebtedness held by such holders) or
their respective Representatives, as their respective interests may appear.
The Trustee shall be entitled to rely on information regarding amounts then due
and owing on the Guarantor Senior Indebtedness, if any, received from the
holders of Guarantor Senior Indebtedness (or their Representatives) or, if such
information is not received from such holders or their Representatives, from
the Company or the Guarantors and only amounts included in the information
provided to the Trustee shall be paid to the holders of Guarantor Senior
Indebtedness.
Nothing contained in this Article Ten B 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 Section 6.02 or to pursue any rights
or remedies hereunder; provided that all Guarantor Senior Indebtedness
thereafter due or declared to be due shall first be paid in full in cash or
Cash Equivalents before the Holders are entitled to receive any payment with
respect to Obligations on the Guarantees.
SECTION 10B.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolu-
107
-99-
tion, winding-up, reorganization, assignment for the benefit of creditors or
marshalling of assets of any Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or other similar proceeding relating to any Guarantor
or its property, whether voluntary or involuntary, all Obligations due or to
become due upon all Guarantor Senior Indebtedness shall first be paid in full
in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of the Guarantor Senior Indebtedness, before any
payment or distribution of any kind or character is made on account of any
Obligations of a Guarantor on the Guarantees, or for the acquisition of any of
the Securities for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding,
any payment, or distribution of assets of any Guarantor of any kind or
character, whether in cash, property or securities, to which the Holders of the
Guarantees or the Trustee under this Indenture would be entitled, except for
the provisions hereof, shall be paid by the Guarantors or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders of the Guarantees or by the Trustee
under this Indenture if received by them, directly to the holders of Guarantor
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Guarantor Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the
payment of Guarantor Senior Indebtedness remaining unpaid until all such
Guarantor Senior Indebtedness has been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of Guarantor Senior Indebtedness.
(b) To the extent any payment of Guarantor Senior
Indebtedness (whether by or on behalf of a Guarantor, as proceeds of security
or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the
Guarantor Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
108
-100-
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of a Guarantor of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 10B.03(a), such payment
or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Guarantor Senior Indebtedness (pro rata to
such holders on the basis of the respective amount of Guarantor Senior
Indebtedness held by such holders) or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Guarantor Senior
Indebtedness remaining unpaid until all such Guarantor Senior Indebtedness has
been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Indebtedness.
(d) The consolidation of any Guarantor with, or the
merger of any Guarantor with or into, another corporation or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of all or
substantially all of its assets to another corporation upon the terms and
conditions provided in Section 10A.05 as if the Guarantor were the Company and
as long as permitted under the terms of the Guarantor Senior Indebtedness shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 10B.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume such Guarantor's
obligations hereunder in accordance with Section 10A.05 as if the Guarantor
were the Company.
SECTION 10B.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten B or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Sections 10B.01 and 10B.02, from making payments at any time for the purpose
of making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Sections 10B.01 and 10B.02, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of, and interest on, the Securities to the Holders entitled thereto unless, at
least one Business Day prior to the date upon which such
109
-101-
payment would otherwise become due and payable, the Trustee shall have actually
received the written notice provided for in Section 10B.02(a) or in Section
10B.09. The Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of any Guarantor.
SECTION 10B.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Indebtedness, the Holders of the Guarantees shall be
subrogated to the rights of the holders of Guarantor Senior Indebtedness to
receive payments or distributions of cash, property or securities of a
Guarantor applicable to the Guarantor Senior Indebtedness until the Securities
shall be paid in full; and, for the purposes of such subrogation, no such
payments or distributions to the holders of the Guarantor Senior Indebtedness
by or on behalf of any Guarantor or by or on behalf of the holders of the
Guarantees by virtue of this Article Ten B which otherwise would have been made
to such holders shall, as between such Guarantor and the holders of the
Guarantees, be deemed to be a payment by such Guarantor to or on account of the
Guarantor Senior Indebtedness.
SECTION 10B.06. Guarantee Provisions Solely To Define Relative Rights.
The subordination provisions of this Article Ten B 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 Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in Section 10B.02,
holders of Designated Guarantor Senior Indebtedness on the other hand. Nothing
contained in this Article Ten B or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among each Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and the
Holders of the Securities, the obligation of such Guarantor, which is absolute
and unconditional, to make payments to the Holders in respect of its
obligations under its Guarantee as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against such Guarantor of the Holders of the Securities and creditors of such
Guarantor other than the holders of the Guarantor Senior Indebtedness of such
Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
the subor-
110
-102-
dination provisions of this Article Ten B of the holders of Guarantor Senior
Indebtedness of the Guarantors hereunder and, to the extent set forth in
Section 10B.02, holders of Designated Guarantor Senior Indebtedness on the
other hand (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 Guarantor referred to in Section 10B.03, 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 10B.02, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section
10B.02(c).
The failure by any Guarantor to make a payment in respect of
its obligations under this Guarantee by reason of any provision of this Article
Ten B shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
SECTION 10B.07. Trustee to Effectuate Subordination of Obligations Under the
Guarantees.
Each Holder of a Security by its acceptance of such Security
authorizes and expressly directs the Trustee to take on behalf of such Holder
of Securities such action as may be necessary or appropriate to effectuate as
between the holders of Guarantor Senior Indebtedness and Holders of Guarantees,
the subordination provided in this Article Ten B, and appoints the Trustee its
attorney-in-fact to act for it and on its behalf for such purposes, including,
in the event of any dissolution, winding-up, liquidation or reorganization of
any Guarantor (whether in bankruptcy, insolvency, receivership, reorganization
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of such
Guarantor, the filing of a claim for the unpaid balance of its Guarantees and
accrued interest in the form required in those proceedings.
SECTION 10B.08. No Waiver of Guarantee Subordination Provisions.
No right of any present or future holder of any Guarantor
Senior Indebtedness of any Guarantor to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or any Guarantor or by any act or
failure to act, in good faith, by any such holder, or by any
111
-103-
non-compliance by the Company or any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Indebtedness of any Guarantor may,
at any time and from time to time, without the consent of or notice to the
Trustee, without incurring responsibility to the Trustee or the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article Ten B or the obligations hereunder of the Holders of the
Guarantees to the holders of such Guarantor Senior Indebtedness, 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, such Guarantor Senior
Indebtedness or any Senior Indebtedness as to which such Guarantor Senior
Indebtedness relates, or otherwise amend or supplement in any manner such
Guarantor Senior Indebtedness or any Senior Indebtedness to which such
Guarantor Senior Indebtedness relates; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Guarantor Senior Indebtedness or any Senior Indebtedness as to which such
Guarantor Senior Indebtedness relates; (3) release any person liable in any
manner for the collection or payment of such Guarantor Senior Indebtedness or
any Senior Indebtedness as to which such Guarantor Senior Indebtedness relates;
and (4) exercise or refrain from exercising any rights against such Guarantor
and any other Person.
SECTION 10B.09. Guarantors to Give Notice to Trustee.
The Company and each Guarantor shall give prompt written
notice to the Trustee of any fact known to such Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Ten B. Notwithstanding the
subordination provisions of this Article Ten B or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Guarantor Senior
Indebtedness or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing from the Company, such Guarantor or from a holder of
Guarantor Senior Indebtedness or a Representative therefor, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist. In
the
112
-104-
event that the Trustee determines in good faith that any evidence is required
with respect to the right of any Person as a holder of Guarantor Senior
Indebtedness of any Guarantor to participate in any payment or distribution
pursuant to this Article Ten B, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness of each Guarantor 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
Ten B, 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 10B.10. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantors.
Upon any payment or distribution of assets of a Guarantor
referred to in this Article Ten B, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
bankruptcy, liquidation, reorganization, dissolution or winding-up proceeding
are pending or, upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Guarantees, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness of such Guarantor
and other Indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Ten B.
SECTION 10B.11. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Ten B with respect to any Guarantor
Senior Indebtedness of any Guarantor which may at any time be held by the
Trustee, to the same extent as any other holder of such Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article Ten B
113
-105-
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 10B.12. No Suspension of Remedies.
Nothing contained in this Article Ten B 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 Six or to pursue any rights
or remedies hereunder or under applicable law, subject to the rights, if any,
under this Article Ten B of the holders, from time to time, of Guarantor Senior
Indebtedness of the Guarantors.
SECTION 10B.13. Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any agent of the Guarantor or the Trustee
shall be entitled to all the rights set forth in this Article Ten B with
respect to any Guarantor Senior Indebtedness which may at any time be held by
it in its individual or any other capacity to the same extent as any other
holder of the Guarantor Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee or any such agent of any of its rights as such holder and
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other person cash, property or securities to which any holders of
Guarantor Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
With respect to the holders of Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its duties,
covenants, responsibilities and obligations as are specifically set forth in
this Article Ten B, and no implied covenants or obligations with respect to the
holders of Guarantor Senior Indebtedness 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 Guarantor Senior Indebtedness.
Whenever a distribution is to be made or a notice given to
holders or owners of Guarantor Senior Indebtedness, the distribution may be
made and the notice may be given to their Representative, if any.
114
-106-
SECTION 10B.14. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor
Senior Indebtedness to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Guarantors or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Guarantors with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee, without
incurring responsibility to the Trustee or the Holders of the Securities and
without impairing or releasing the subordination provided in this Article Ten B
or the obligations hereunder of the Holders of the Securities to the holders
of the Guarantor Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Indebtedness, or otherwise amend or
supplement in any manner Guarantor Senior Indebtedness, or any instrument
evidencing the same or any agreement under which Guarantor Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Guarantor Senior
Indebtedness; (iii) release any Person liable in any manner for the payment or
collection of Guarantor Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Guarantors and any other Person.
SECTION 10B.15. This Article Ten B Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Ten B
will not be construed as preventing the occurrence of an Event of Default.
115
-107-
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:
433 East Las Colinas Boulevard
Suite 1130
Irving, TX 75039
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
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 registra-
116
-108-
tion 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.
Except with respect to the issuance of the series of
Securities on the date of this Indenture, 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
(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;
117
-109-
(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, 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 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.
118
-110-
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.
119
-111-
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.
The Company:
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
------------------------------------------
Name: Matthew E. Devine
Title: Senior Vice President, Chief
Financial Officer and Secretary
The Guarantors:
On Behalf of the Subsidiary Guarantors Listed
on Schedule I hereto
By:
------------------------------------------
Name: Omar Choucair
Title: Vice President
On Behalf of the Subsidiary Guarantors Listed
on Schedule II hereto
By:
------------------------------------------
Name: Richard E. Vendig
Title: Senior Vice President, Chief Financial
and Administrative Officer, Treasurer
120
-112-
The Trustee:
THE BANK OF NEW YORK
By:
--------------------------------------
Name:
Title:
121
EXHIBIT A-1
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
8 1/8% Senior Subordinated Notes due 2007
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO CHANCELLOR
MEDIA CORPORATION OF LOS ANGELES (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-1
122
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
8 1/8% Senior Subordinated Notes due 2007
No. $
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware
corporation (the "Company"), for value received, promises to pay to
or registered assigns, the principal sum of Dollars, on
December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
A-1-2
123
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
---------------------------------------
Name: Matthew E. Devine
Title: Senior Vice President, Chief
Financial Officer and Secretary
By:
---------------------------------------
Name: Omar Choucair
Title: Vice President
Trustee's Certificate of Authentication
This is one of the 8 1/8% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------------
Authorized Signatory
A-1-3
124
-4-
(REVERSE OF SECURITY)
8 1/8% Senior Subordinated Notes due 2007
1. Interest. CHANCELLOR MEDIA CORPORATION OF LOS
ANGELES, a Delaware corporation (the "Company"), promises to pay interest on
the principal amount of this Security at the rate per annum shown above.
Interest on the Securities will accrue from the most recent date on which
interest has been paid or, if no interest has been paid, from December 22,
1997. The Company will pay interest semi-annually in arrears on each Interest
Payment Date, commencing June 15, 1998. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
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 to the extent lawful.
2. Method of Payment. The Company shall pay interest on
the Securities (except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Securities are cancelled on
registration of transfer or registration of exchange after such Record Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay principal
and interest by 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, The Bank of
New York (the "Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture and Guarantees. The Company issued the
Securities under an Indenture, dated as of December 22, 1997 (the "Indenture"),
among the Company, the Guarantors and the Trustee. This Security is one of a
duly authorized issue of Securities of the Company designated as its 8 1/8%
Senior Subordinated Notes due 2007 (the "Securities"), limited (except as
otherwise provided in the Indenture) in aggregate principal amount to
$500,000,000, which may be issued under the Indenture. The terms of the
Securities include those stated in the
A-1-4
125
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. Payment on each
Security is guaranteed on a senior subordinated basis, jointly and severally,
by the Guarantors pursuant to Article Ten A of the Indenture.
5. 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
Indebtedness, 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 Indebtedness 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.
6. Optional Redemption. (a) The Securities will be
redeemable, at the Company's option, in whole at any time or in part from time
to time, on and after December 15, 2002, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed during the
twelve-month period commencing on December 15 of the year set forth below,
plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . . 104.063%
2003 . . . . . . . . . . . . . . . . . . 102.708%
2004 . . . . . . . . . . . . . . . . . . 101.354%
2005 and thereafter . . . . . . . . . . . 100.000%
(b) In addition, on or prior to December 15, 2000, the
Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem the Securities, in part, at a redemption price of
108.125% of the principal amount thereof, plus accrued and unpaid interest
thereon to the date of redemption; provided, however, that after any such
redemption the aggregate principal amount of the Securities out-
A-1-5
126
standing must equal at least 65% of the aggregate principal amount of the
Securities originally issued.
(c) In addition, at any time prior to December 15, 2000,
upon the occurrence of a Change of Control, the Company may redeem the
Securities, in whole but not in part, at a redemption price equal to the
principal amount thereof plus the Applicable Premium plus accrued and unpaid
interest, if any, to the date of redemption. The Company may not redeem
Securities pursuant to this paragraph if it has made an offer to repurchase the
Securities with respect to such Change of Control.
"Applicable Premium" means, with respect to a Security, the
greater of (i) 1.0% of the then outstanding principal amount of such Security
and (ii) (a) the present value of all remaining required interest and principal
payments due on such Security and all premium payments relating thereto
assuming a redemption date of December 15, 2002, computed using a discount rate
equal to the Treasury Rate plus 100 basis points minus (b) the then outstanding
principal amount of such Security minus (c) accrued interest paid on the
redemption date.
"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) ("Statistical Release") which has become publicly available at least
two business days prior to the date fixed for redemption (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the then remaining term to December
15, 2002; provided, however, that if the then remaining term to December 15,
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 then remaining term to December 15, 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.
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.
In order to effect a redemption with the proceeds of a Public Equity Offering,
the Company shall send the redemption notice in the manner specified in the
Indenture not later than 60 days after the consummation of such Public Equity
Offering. Securities in denominations larger than $1,000 may be redeemed in
part.
A-1-6
127
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 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 accrued and unpaid
interest, if any, to the date of repurchase. Holders of Securities which are
the subject of such an offer to repurchase shall receive an offer to repurchase
and may elect to have such Securities repurchased in accordance with the
provisions of the Indenture pursuant to and in accordance with the terms of the
Indenture.
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 and unpaid 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 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
A-1-7
128
certain covenants, but excluding its obligation to pay the principal of 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, 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, make payments in respect of its Capital
Stock or certain Indebtedness, 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
A-1-8
129
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.
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. Registration Rights. Pursuant to the Registration
Rights Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security
A-1-9
130
for Securities of a separate series issued under the Indenture (or a trust
indenture substantially identical to the Indenture in accordance with the terms
of the Registration Rights Agreement) which have been registered under the
Securities Act, in like principal amount and having identical terms as this
Security. The Holders of the Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
25. 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, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 433 East Las Colinas Blvd., Suite 1130, Irving,
Texas 75039.
A-1-10
131
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "Guarantor," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior subordinated basis (such guarantee
by each Guarantor being referred to herein as the "Guarantee") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten A of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantees are noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
A-1-11
132
GUARANTORS:
On Behalf of the Subsidiary Guarantors
Listed on Exhibit A hereto
By:
-----------------------------------
Name: Omar Choucair
Title: Vice President
On Behalf of the Subsidiary Guarantors Listed
on Exhibit B hereto
By:
-----------------------------------
Name: Richard E. Vendig
Title: Senior Vice President, Chief
Financial and Administrative
Officer, Treasurer
A-1-12
133
[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.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by
the SEC of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at
the date of the transfer) and (ii) December 22, 1999, the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that:
[Check One]
[ ] (a) this Security is being transferred in
compliance with the exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than
in accordance with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Security in the
A-1-13
134
name of any person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 2.16 of
the Indenture shall have been satisfied.
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:
---------------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
A-1-14
135
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 4.15 or 4.16 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 4.15 or 4.16 of the Indenture, state the
amount:
$
----------
Date: Your Signature:
------------------ -----------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
-----------------------------------
A-1-15
136
EXHIBIT A-2
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
8 1/8% Senior Subordinated Notes due 2007
[FORM OF SERIES B SECURITY]
No. $
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware
corporation (the "Company"), for value received, promises to pay to
or registered assigns, the principal sum of Dollars, on
December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-2-1
137
Trustee's Certificate of Authentication
This is one of the 8 1/8% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------------
Authorized Signatory
A-2-2
138
(REVERSE OF SECURITY)
8 1/8% Senior Subordinated Notes due 2007
1. Interest. CHANCELLOR MEDIA CORPORATION OF LOS
ANGELES, a Delaware corporation (the "Company"), promises to pay interest on
the principal amount of this Security at the rate per annum shown above.
Interest on the Securities will accrue from the most recent date on which
interest has been paid or, if no interest has been paid, from December 22,
1997. The Company will pay interest semi-annually in arrears on each Interest
Payment Date, commencing June 15, 1998. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
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 to the extent lawful.
2. Method of Payment. The Company shall pay interest on
the Securities (except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Securities are cancelled on
registration of transfer or registration of exchange after such Record Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay principal
and interest by 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, The Bank of
New York (the "Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture and Guarantees. The Company issued the
Securities under an Indenture, dated as of December 22, 1997 (the "Indenture"),
among the Company, the Guarantors and the Trustee. This Security is one of a
duly authorized issue of Securities of the Company designated as its 8 1/8%
Senior Subordinated Notes due 2007 (the "Securities"), limited (except as
otherwise provided in the Indenture) in aggregate principal
A-2-3
139
amount to $500,000,000, 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. Payment on each Security is guaranteed on a senior
subordinated basis, jointly and severally, by the Guarantors pursuant to
Article Ten A of the Indenture.
5. 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
Indebtedness, 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 Indebtedness 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.
6. Optional Redemption. (a) The Securities will be
redeemable, at the Company's option, in whole at any time or in part from time
to time, on and after December 15, 2002, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed during the
twelve-month period commencing on December 15 of the year set forth below,
plus, in each case, accrued and unpaid interest thereon to the date of
redemption:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . 104.063%
2003 . . . . . . . . . . . . . . . . . 102.708%
2004 . . . . . . . . . . . . . . . . . 101.354%
2005 and thereafter . . . . . . . . . . 100.000%
(b) In addition, on or prior to December 15, 2000, the
Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem the Securities, in part, at a redemption price of
108.125% of the principal amount thereof, plus accrued and unpaid interest
thereon to the date of redemption; provided, however, that after any such re-
A-2-4
140
demption the aggregate principal amount of the Securities outstanding must
equal at least 65% of the aggregate principal amount of the Securities
originally issued.
(c) In addition, at any time prior to December 15, 2000,
upon the occurrence of a Change of Control, the Company may redeem the
Securities, in whole but not in part, at a redemption price equal to the
principal amount thereof plus the Applicable Premium plus accrued and unpaid
interest, if any, to the date of redemption. The Company may not redeem
Securities pursuant to this paragraph if it has made an offer to repurchase the
Securities with respect to such Change of Control.
"Applicable Premium" means, with respect to a Security, the
greater of (i) 1.0% of the then outstanding principal amount of such Security
and (ii)(a) the present value of all remaining required interest and principal
payments due on such Security and all premium payments relating thereto
assuming a redemption date of December 15, 2002, computed using a discount rate
equal to the Treasury Rate plus 100 basis points minus (b) the then outstanding
principal amount of such Security minus (c) accrued interest paid on the
redemption date.
"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) ("Statistical Release") which has become publicly available at least
two business days prior to the date fixed for redemption (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the then remaining term to December
15, 2002; provided, however, that if the then remaining term to December 15,
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 then remaining term to December 15, 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.
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.
In order to effect a redemption with the proceeds of a Public Equity Offering,
the Company shall send the redemption notice in the manner specified in the
Indenture not later than 60 days after the consummation of such
A-2-5
141
Public Equity Offering. 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 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 accrued and unpaid
interest, if any, to the date of repurchase. Holders of Securities which are
the subject of such an offer to repurchase shall receive an offer to repurchase
and may elect to have such Securities repurchased in accordance with the
provisions of the Indenture pursuant to and in accordance with the terms of the
Indenture.
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 and unpaid 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 and interest on the
Securities to redemption or maturity and complies with the other provisions of
the Inden-
A-2-6
142
ture 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 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, 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, make payments in respect of its Capital
Stock or certain Indebtedness, 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
A-2-7
143
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.
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.
A-2-8
144
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, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 433 East Las Colinas Blvd., Suite 1130, Irving
Texas, 75039.
A-2-9
145
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "Guarantor," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior subordinated basis (such guarantee
by each Guarantor being referred to herein as the "Guarantee") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten A of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantees are noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
A-2-10
146
GUARANTORS:
On behalf of the Guarantors Listed on Exhibit
A hereto:
By:
-----------------------------------
Name:
Title:
On behalf of the Guarantors Listed on Exhibit B
hereto:
By:
-----------------------------------
Name:
Title:
A-2-11
147
[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:
---------------------------------------------
A-2-12
148
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 4.15 or 4.16 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 4.15 or 4.16 of the Indenture, state the
amount:
$
----------
Date: Your Signature:
------------------- ---------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
-----------------------------------
A-2-13
149
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required
in the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
150
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
THE BANK OF NEW YORK
Attention: Corporate Trust Trustee Administration
Re: Chancellor Media Corporation of Los Angeles (the "Company") 8
1/8% Senior Subordinated Notes due 2007 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth in the
Indenture dated as of December 22, 1997 relating to the Securities and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the
Securities have not been registered under the Securities Act, and that the
Securities may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell or otherwise
transfer any Securities prior to the date which is two years after the original
issuance of the Securities, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture relating to the Securities), a signed
letter containing certain representations and agreements relating to the
restrictions on transfer of the Securities, (iv) outside the
C-1
151
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (v) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities are restricted as stated
herein.
3. We are not acquiring the Securities for or on behalf
of, and will not transfer the Securities to, any pension or welfare plan (as
defined in Section 3 of the Employee Retirement Income Security Act of 1974),
except as permitted in the section entitled "Transfer Restrictions" of the
Offering Circular.
4. We understand that, on any proposed resale of any
Securities, we will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for
our account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
---------------------------------
Name:
Title:
C-2
152
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______________, ____
The Bank of New York
Attention: Corporate Trust Trustee Administration
Re: Chancellor Media Corporation of Los Angeles (the "Company") 8
1/8% Senior Subordinated Notes due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
D-1
153
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
Authorized Signature
D-2