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EXHIBIT 4.1
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NEWCITY COMMUNICATIONS, INC., as Issuer,
$75,000,000
11 3/8% Senior Subordinated Notes due 2003
INDENTURE
Dated as of November 2, 1993
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08; 7.10; 12.02
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06; 12.02
(c) 7.06; 12.02
(d) 7.06
314(a) 4.03; 4.18; 12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01(b)
(b) 7.05; 12.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
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316(a)(last sentence) 12.06
(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) 12.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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I DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.03 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.01 Dating; Incorporation of Form in Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.05 Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.07 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.08 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.09 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.11 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
III REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.01 Right to Redeem; Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.02 Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.06 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
IV COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.01 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.03 Provision of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.04 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.05 Limitation on Payment Restrictions Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . . . 29
4.06 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.07 Limitation on Incurrence of Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.08 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.09 Limitation on Use of Proceeds from Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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4.10 Compliance with Securities Laws upon Purchase of Notes . . . . . . . . . . . . . . . . . . . . . . . 36
4.11 Limitation on Liens Securing Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 37
4.12 Limitation on Other Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 38
4.13 Limitation on Capital Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.14 Limitation on Sale and Lease-Back
Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.15 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.16 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.17 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.18 Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.19 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.20 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.21 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.22 Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
V MERGER AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.01 When Company or Guarantor May Merge, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.02 Successor Entity Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
VI DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
VII TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.05 Notice of Defaults or Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.11 Preferential Collection of Claims against Company . . . . . . . . . . . . . . . . . . . . . . . . . 56
VIII SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.01 Termination of Company's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.02 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.03 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.04 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
IX AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.05 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.06 Trustee to Sign Amendments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
X SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.02 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.03 Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.04 Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.05 When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.06 Notice by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.07 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.08 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.09 Subordination May Not Be Impaired by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.10 Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.12 Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
XI GUARANTEE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.01 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.02 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.03 Release of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.04 Limitation on Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.05 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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12.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.03 Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.04 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.05 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.06 When Treasury Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.07 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.08 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.10 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.11 No Recourse against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.12 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.13 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
12.14 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
12.15 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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INDENTURE dated as of November 2, 1993 among NEWCITY
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), as Issuer, the
Guarantors named herein and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association (the "Trustee").
The parties agree as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
11 3/8% Senior Subordinated Notes due 2003 ("Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101 Definitions.
"Acquired Indebtedness" of the Company means Indebtedness of
any Person existing at the time such Person merged with or into or became a
Subsidiary of the Company or assumed by the Company in connection with the
acquisition of assets from such Person.
"Affiliate" of any Person means (i) any Person who, directly
or indirectly, is in control of, is controlled by or is under common control
with such Person or (ii) any Person who is a director or officer of such
Person. For purposes of this definition, control of a Person means the power,
direct or indirect, to direct or cause the direction of the management or
policies of such Person whether by contract or otherwise; and the terms
"controlling," "controlled by" and "under common control" have meanings
correlative to the foregoing. For purposes of this definition, beneficial
ownership of 10% or more of the Common Equity of a Person (on a fully diluted
basis) or securities convertible into such Common Equity (whether or not
currently exercisable) shall be deemed to be control of such Person.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notice and demands. See Section 2.03.
"Asset Sale" means, with respect to any Person, (1) the sale,
lease, conveyance, disposition or other transfer by the referent Person of any
of its
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assets (including by way of a Sale and Lease-Back Transaction and including the
sale or other transfer of any of the Capital Stock of any Subsidiary of the
referent Person) and (ii) the issuance, sale, conveyance, disposition or other
transfer by the referent Person of any Capital Stock of the referent Person;
provided, however, that notwithstanding the foregoing, the term "Asset Sale"
shall not include (A) the sale, lease, conveyance, disposition or other
transfer of any assets in the ordinary course of business and consistent with
past practice or to a wholly owned Subsidiary of the referent Person or to a
Person of whom the referent Person is a wholly owned Subsidiary, and (B) the
issuance by the Company of shares of its Capital Stock.
"Attributable Debt" means, as of any particular time, the then
present value (computed by discounting at the rate of interest per annum borne
by the Notes compounded semi-annually) of the obligation of a lessee for Net
Rental Payments during the remaining term of any lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). "Net Rental Payments" means, under any lease for any period, the
sum of the rental and other payments required to be paid in such period by the
lessee thereunder, not including, however, any amounts required to be paid by
such lessee (whether or not therein designated as rental or additional rental)
on account of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges required to be paid by such lessee thereunder or
any amounts required to be paid by such lessee thereunder contingent upon the
amount of sales, maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges.
"Average Life to Stated Maturity" means, as of the date of
determination, with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date
of determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such
principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means the Board of Directors of the
Company or any committee of the Board of Directors.
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"Board Resolution" means a resolution duly adopted by the
Board of Directors of any Person and which is in full force and effect.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at any time determination
thereof is to be made, the amount of liability in respect of a capital lease
that would at such time be so required to be capitalized on the balance sheet
in accordance with GAAP.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents of interests in (however
designated) the equity (which includes, but is not limited to, common stock,
preferred stock and partnership and joint venture interests) of such Person.
A "Change of Control" of the Company will be deemed to have
occurred at such time as (i) any Person (including a Person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner (as
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of 50% or more of the total voting power of the Company's
Common Equity, (ii) any Person (including a Person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner of
more than 30% of the total voting power of the Company's Common Equity, and the
Permitted Holders beneficially own, in the aggregate, a lesser percentage of
the total voting power of the Common Equity of the Company than such other
Person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors, (iii) prior to an Initial Public Offering, Permitted Holders shall
cease to own beneficially at least 30% of the total voting power of the
Company's Common Equity, (iv) there shall be consummated any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Common Equity of the Company would be
converted into cash, securities or other property, other than a merger or
consolidation of the Company in which the holders of the Common Equity of the
Company immediately prior to the consolidation or merger hold,
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directly or indirectly, at least a majority of Common Equity of the surviving
corporation immediately after such consolidation or merger or (v) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (together with any new directors
whose election by the Board of Directors or whose nomination for election by
the shareholder of the Company has been approved by 66-2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or recommendation for election was previously so approved)
cease to constitute a majority of the Board of Directors.
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the Indenture and thereafter means
the successor.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, dividends, whether paid or
accrued, on Subsidiary Preferred Stock, imputed interest included on Capital
Lease Obligations, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, the net
costs associated with hedging obligations, amortization of other financing fees
and expenses, the interest portion of any deferred payment obligation,
amortization of discount or premium, if any, and all other non-cash interest
expense (other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, plus the amount
of all dividends
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or distributions paid on Redeemable Stock (other than dividends paid or payable
in shares of Capital Stock or Equity Interests in the Company or its
Subsidiaries).
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP, provided that (i) the Net Income of any Person which is not a
Subsidiary or is accounted for by such Person by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to such Person or a Subsidiary, (ii) the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded and (iii) the Net Income of any
Subsidiary that is subject to restrictions, direct or indirect, on the payment
of dividends or the making of distributions to such Person shall be excluded,
except to the extent dividends or distributions are actually received by such
Person.
"Consolidated Net Worth" means, at any date of determination,
the sum of the Capital Stock and additional paid-in capital plus retained
earnings (or minus accumulated deficit) of any Person and its Subsidiaries on a
consolidated basis, excluding amounts attributable to Redeemable Stock, each
item to be determined in conformity with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at 777 Main Street, Hartford, Connecticut 06115.
"Default" means any event which after notice or passage of
time would be an Event of Default as described in Section 6.01.
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus (a) provision for
taxes based on income or profits to the extent such provision for taxes was
deducted in computing Consolidated Net Income, plus (b) Consolidated Interest
Expense, to the extent such expense was deducted in computing Consolidated Net
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Income, plus (c) depreciation expense, plus (d) amortization expense, plus (e)
other non-cash items reducing Consolidated Net Income, minus (f) non-cash items
increasing Consolidated Net Income.
"Equity Interests" means Capital Stock, warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles as
applied in the United States set forth in the opinions and pronouncements of
the Accounting Principals Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States, which are applicable as of the date of determination.
"guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
participation arrangements, by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring the obligee of such Indebtedness in any other manner of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee" means the guarantee of the obligations of the
Company pursuant to this Indenture and the Notes, issued by each Guarantor
pursuant to Article 11 hereof.
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"Guarantor" means any of NewCity Broadcasting Company, Inc., a
Delaware corporation, NewCity Communications of Alabama, Inc., a Delaware
corporation, NewCity Communications of Atlanta, Inc., a Delaware corporation,
NewCity Communications of Connecticut, Inc., a Connecticut corporation, NewCity
Communications of Daytona, Inc., a Connecticut corporation, NewCity
Communications of Florida, Inc., a Delaware corporation, NewCity Communications
of Fulton, Inc., a Delaware corporation, NewCity Communications of
Massachusetts, Inc., a Delaware corporation, NewCity Communications of San
Antonio, Inc., a Delaware corporation, NewCity Communications of Syracuse,
Inc., a Delaware corporation, NewCity Communications of Tulsa, Inc., a Delaware
corporation, American Comedy Network, Inc., a Delaware corporation, Birmingham
Communications, Inc., a Delaware corporation, CommercialWorks, Inc., a
Connecticut corporation, NewCity Tulsa Tower, Inc., an Oklahoma corporation, or
ParkCity Productions, Inc., a Connecticut corporation.
"Holder" or "Noteholder" means the person in whose name a Note
is registered on the Registrar's books.
"Indebtedness" of any Person means any indebtedness,
contingent or otherwise, in respect of borrowed money and deferred interest
thereon (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof) or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or reimbursement
obligations with respect thereto) or representing the balance deferred and
unpaid of the purchase price of any property (including pursuant to Capital
Lease Obligations), if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP (except that any such balance that constitutes a trade
payable and/or an accrued liability arising in the ordinary course of business
shall not be considered Indebtedness), and shall also include, to the extent
not otherwise included, any Capital Lease Obligations, the maximum liquidation
preference of any Redeemable Stock or Subsidiary Preferred Stock, indebtedness
secured by a Lien to which the property or assets owned or held by such Person
is subject, whether or not the obligations secured thereby shall have been
assumed, and guarantees of items that would be included within this definition
to the extent of such guarantees (regard-
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less of whether such items would appear upon such balance sheet). For purposes
of the preceding sentence, the maximum liquidation preference of any Redeemable
Stock or Subsidiary Preferred Stock shall be the greatest amount payable in
respect thereof on a liquidation, whether voluntary or involuntary, plus
accrued and unpaid dividends. The amount of Indebtedness of any Person at any
date shall be, without duplication, (i) the outstanding balance at such date of
all unconditional obligations as described above and the maximum liability of
any such contingent obligations at such date and (ii) in the case of
Indebtedness of others secured by a Lien to which the property or assets owned
or held by such Person is subject, the lesser of the fair market value at such
date of any asset subject to a Lien securing the Indebtedness of others and the
amount of the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Public Offering" means the first offer and sale to
the public by the Company of shares of any class of the Capital Stock of the
Company pursuant to a registration statement that has been declared effective
by the Securities and Exchange Commission.
"Investments" means, with respect to any Person, (i) all
investments by such Person in any other Person in the form of loans, advances
or capital contributions, (ii) all guarantees of Indebtedness or other
obligations of any other Person by such Person, (iii) all purchases (or other
acquisitions for consideration) by such Person of Indebtedness, Capital Stock
or other securities of any other Person and (iv) all other items that would be
classified as investments (including, without limitation, purchases of assets
outside the ordinary course of business) on a balance sheet of such Person
prepared in accordance with GAAP.
"Junior Subordinated Notes" means the notes issued on the date
hereof in exchange for notes issued by Birmingham Communications, Inc. and
NewCity Communications of Fulton, Inc., which notes are subordinated in right
of payment to the Notes.
"Lien" means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind,
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whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give any
security interest in and any filing or other agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"LMA" means a local marketing agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP, excluding, however,
(i) any gain (but not loss) realized upon the sale or other disposition
(including, without limitation, dispositions pursuant to Sale and Lease-Back
Transactions) of any real property or equipment of such Person which is not
sold or otherwise disposed of in the ordinary course of business, and (ii) any
gain (but not loss) realized upon the sale or other disposition by such Person
of any Capital Stock or marketable securities.
"Net Proceeds" means the aggregate proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale, net of the
out-of-pocket costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees and sales commissions) and any
relocation expenses and severance and shutdown costs incurred as a result
thereof, taxes paid or payable as a result thereof, amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets which are the subject of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets.
"Notes" means the securities that are issued under this
Indenture, as amended or supplemented, from time to time pursuant to this
Indenture.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant
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Treasurer, Assistant Secretary or Assistant Controller of the Company. See
Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Holders" means, collectively, any of the holders of
the Company's Capital Stock identified under "Stock Ownership" in the final
prospectus relating to the offering of the Notes, the members of their
immediate families, the respective estates, spouses, heirs, ancestors, lineal
descendants, legatees and legal representatives of any of the foregoing and the
trustee of any bona fide trust of which one or more of the foregoing are the
sole beneficiaries or the grantors thereof, or any entity of which any of the
foregoing, individually or collectively, beneficially own more than 50% of the
voting securities.
"Permitted Indebtedness" means, without duplication, any of
the following Indebtedness of the Company or any Subsidiary, as the case may be:
(i) Indebtedness of the Company outstanding at
any time under the Senior Credit Facility, or
any successor or successors thereto, in an
aggregate principal amount not to exceed the
aggregate commitments as in effect on the
date of the Indenture;
(ii) Indebtedness and obligations of the Company
under the Notes, (b) any Indebtedness and
obligations outstanding on the date hereof
and (c) Indebtedness and obligations arising
after the date hereof in respect of
agreements existing as of the date hereof
providing for indemnification, adjustment of
purchase price or similar obligations
incurred in connection with the acquisition
of any business;
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(iii) Indebtedness the proceeds of which are used,
directly or indirectly, to refinance
outstanding Indebtedness of the Company or
any Subsidiary in a principal amount (or, if
such Indebtedness does not require cash
payments prior to maturity, with an original
issue price of such Indebtedness) not to
exceed the principal amount of the
Indebtedness so refinanced (or, if the
Indebtedness being refinanced was issued with
an original issue discount, the original
issue price plus the amortized portion of the
original issue discount to the date that such
refinancing Indebtedness was incurred);
provided that if the Indebtedness being
refinanced is Indebtedness of the Company,
such refinancing shall be Indebtedness of the
Company; provided, further, that Indebtedness
the proceeds of which are used to refinance
Indebtedness of the Company that is expressly
subordinated in right of payment to the Notes
will only be permitted if (x) such
Indebtedness is expressly subordinated in
right of payment to the Notes at least to the
same extent that the Indebtedness to be
refinanced is subordinated to the Notes, (y)
the Average Life to Stated Maturity of such
Indebtedness exceeds the Average Life to
Stated Maturity of the Notes, and (z) the
final scheduled maturity of such Indebtedness
exceeds the final maturity of the Notes; and
(iv) Indebtedness of a wholly owned Subsidiary to
the Company or the Company to a wholly owned
Subsidiary.
"Permitted Investments" means (i) certificates of deposit with
final maturities of one year or less issued by United States commercial banks
having capital and surplus in excess of $100,000,000; (ii) commercial paper
with a grade of no less than A1 or P1; (iii) direct
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obligations of the United States Government or a United States agency with a
maturity of one year or less; (iv) money market preferred stock with a rating
of "A" or greater; and (v) shares of money market mutual or similar funds
having assets in excess of $100,000,000.
"Permitted Liens" means (i) Liens existing on the date of this
Indenture as specifically identified in the final prospectus relating to the
offering of the Notes; (ii) Liens for taxes, assessments, governmental charges
or claims which are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor; (iii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's,
or other like Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
proceedings, and if a reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor; (iv) Liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; (v) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (vi) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the business of the Company or any of its Subsidiaries incurred in the ordinary
course of business; (vii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (viii) judgment and attachment Liens not giving
rise to an Event of Default; (ix) leases or subleases granted to others not
interfering in any material respect with the business of the Company or any of
its Subsidiaries; (x) any interest or title of a lessor in the property subject
to any capital lease obligation or operating lease; (xi) Liens arising from
filing Uniform Commercial Code financing statements
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regarding leases; and (xii) any renewal of or substitution for any Lien
permitted by any of the preceding clauses, provided, however, that the
Indebtedness secured is not increased nor the Lien extended to any additional
property.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Redeemable Stock" means any Equity Interest which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable before the stated maturity of the Notes), or upon the
happening of any event, matures or is mandatorily redeemable, in whole or in
part, prior to the second anniversary of the final stated maturity of the
Notes, or is, by its terms or upon the happening of any event, redeemable at
the option of the holder thereof, in whole or in part, at any time prior to the
second anniversary of the final stated maturity of the Notes.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Sale and Lease-Back Transaction" means any arrangement with
any Person (other than the Company or a Subsidiary), or to which any such
Person is a party, providing for the leasing to the Company or a Subsidiary of
any property owned by the Company or a Subsidiary and sold or transferred by
the Company or such Subsidiary to such Person or to any other Person (other
than the Company or a Subsidiary).
"SEC" means the Securities and Exchange Commission.
"Senior Credit Facility" means the Senior Credit Facility in
the aggregate principal amount of $15,000,000 from Fleet National Bank to the
Company, dated as of October 1, 1993, and any amendments, extensions,
refundings or renewals thereof with the same or different lenders.
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"Senior Indebtedness" means (i) the principal of, premium, if
any, and accrued and unpaid interest on, and letters of credit (and matured and
unmatured reimbursement obligations with respect thereto) and any fees,
expenses, indemnities and other amounts payable under or in connection with the
Senior Credit Facility, provided, however, that (a) any Indebtedness under any
refinancing, refunding or replacement of the Senior Credit Facility shall not
constitute Senior Indebtedness to the extent that Indebtedness thereunder is by
its terms expressly subordinate in right of payment to any other Indebtedness
of the Company and (b) all interest accruing after the filing of a petition by
or against the Company under any Federal, state or foreign bankruptcy or
similar law, whether or not such interest is allowed as a claim after such
filing in any proceeding under such bankruptcy or similar law, shall constitute
Senior Indebtedness; and (ii) the principal of, premium, if any, and accrued
and unpaid interest on Indebtedness of the Company, contingent or otherwise, in
respect of borrowed money or otherwise, whether outstanding on the date of this
Indenture 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 Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Notes, (ii) Indebtedness that is expressly
subordinate or junior in right of payment to any Indebtedness of the Company,
(iii) any liability for Federal, state, local or other taxes owed or owing by
the Company, (iv) Indebtedness of or amounts owed by the Company for
compensation to employees and for services, (v) Indebtedness of the Company to
a Subsidiary of the Company or any other Affiliate of the Company or any of
such Affiliate's subsidiaries, (vi) any Indebtedness which at the time of
issuance is issued in violation of the Indenture, and (vii) amounts owing under
leases (other than Capital Lease Obligations).
"Series B Preferred Stock" means the Series B Preferred Stock
of the Company, par value $.05 per share, issued on the date hereof.
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"Series C Preferred Stock" means the Series C Preferred Stock
of the Company, par value $.05 per share, issued on the date hereof.
"Specified Senior Indebtedness" means (i) all Senior
Indebtedness under the Senior Credit Facility and (ii) all other Senior
Indebtedness, which (a) is secured by a Lien or Liens on all or substantially
all of the assets of the Company, (b) has at the time of initial issuance an
aggregate outstanding principal amount, together with all other Senior
Indebtedness sharing pari passu in such Liens, of $5 million or more and (c) is
designated as such by the Board of Directors at the time of initial issuance.
"Subordinated Indebtedness" means Indebtedness which is
subordinated in right of payment to any other Indebtedness of the Company.
"Subsidiary" means (i) a corporation, the majority of the
Common Equity of which is owned, directly or indirectly through other
subsidiaries, by the Company or a subsidiary of the Company, and (ii) any
entity other than a corporation, the majority of the Common Equity of which is
owned, directly or indirectly through other subsidiaries, by the Company or a
subsidiary of the Company.
"Subsidiary Preferred Stock" means any Capital Stock issued by
a Subsidiary which has any preference as to payment of dividends or upon
liquidation over any other Capital Stock of such Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section Section 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Trust Officer" means any officer in the Trustee's principal
corporate trust office customarily performing 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
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because of his knowledge of and familiarity with the particular subject.
"United States" means the United States of America.
"wholly owned Subsidiary" means any Subsidiary of the Company
all the Common Equity of which is owned by the Company, either directly or
through wholly owned Subsidiaries.
Section 202 Other Definitions.
Term Defined in Section
---- ------------------
"Adjusted Net Worth" 11.04
"Asset Sale Payment" 4.09
"Asset Sale Payment Date" 4.09
"Bankruptcy Law" 6.01
"Change of Control Offer" 4.08
"Change of Control Payment Date" 4.08
"Custodian" 6.01
"Event of Default" 6.01
"Excess Proceeds" 4.09
"Excess Proceeds Offer" 4.09
"Guarantee Date" 11.04
"Legal Holiday" 12.08
"Maximum Guaranteed Amount" 11.04
"Note Proceeds" 11.04
"Paying Agent" 2.03
"Registrar" 2.03
"Restricted Payments" 4.04
"Senior Indebtedness of the Guarantor" 11.02
"U.S. Government Obligations" 8.01
Section 303 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
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:
"indenture securities" means the Notes.
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"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 indenture securities; with respect to the requirement of
Sections 312 to 317, inclusive, of the TIA, such term shall include the
Guarantors if the Company fails to perform its obligations under such Sections.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them.
Section 404 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 generally
accepted accounting principles in effect on the date
hereof;
(3) "or" is not exclusive; and
(4) words in the singular include the plural and in the
plural include the singular.
ARTICLE II
THE NOTES
Section 101 Dating; Incorporation of Form in Indenture.
The Notes, the notation thereon relating to the Guarantee and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit A which is incorporated in and made a part of this Indenture. The
Notes may have notations, legends or endorsements re-
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quired by law, stock exchange rule, agreements to which the Company is subject,
or usage. The Company shall approve the form of the Notes and any notation,
legend or endorsement on them. Each Note shall be dated the date of its
authentication.
Section 202 Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Notes and may be in facsimile form. An Officer of each
Guarantor shall sign the notation on the Notes relating to the Guarantee by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount of $75,000,000 upon a written order of the Company
signed by two Officers or by an Officer and an Assistant Treasurer of the
Company. The aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent to
authenticate Notes. 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.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and integral multiples thereof.
Section 303 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer
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or for exchange ("Registrar"), an office or agency where Notes may be presented
for payment ("Paying Agent") and an office or agency where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more co-registrars and one or more
additional co-paying agents. The Company or any Subsidiary may act as Paying
Agent, Registrar or co-registrar and the term "Paying Agent" includes any
additional paying agent.
The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture. If the Company fails to maintain a
Registrar or Paying Agent, or agent for service of notices and demands, or
fails to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands.
Section 404 Paying Agent to Hold Money in Trust.
Prior to each due date of the principal or interest on any
Notes, the Company (or any other obligor on the Notes) shall deposit with the
Paying Agent a sum sufficient to pay such principal and interest so becoming
due. Each Paying Agent shall hold in trust for the benefit of Noteholders or
the Trustee all money held by the Paying Agent for the payment of principal or
interest on the Notes, and shall notify the Trustee of any default by the
Company (or any other obligor on the Notes) in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall on or before each due
date of the principal of or interest on any Notes segregate the money and hold
it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee 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 forthwith pay to the Trustee all
sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent
(other than the Company or a Subsidiary) shall have no further liability for
the money.
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Section 505 Noteholder 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 Noteholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each semi-annual interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
Section 606 Transfer and Exchange.
When a Note is presented to the Registrar or a co-registrar
with a request to register the transfer, the Registrar or co-registrar shall
register the transfer as requested and when Notes are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar
shall make the exchange as requested provided that every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes and each Guarantor shall
endorse the Guarantee thereon at the Registrar's or co-registrar's request.
The Company may charge a reasonable fee for any transfer or exchange and may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto, but this provision shall not
apply to any exchange pursuant to Sections 2.09, 3.06 or 9.05. The Registrar
is not required to transfer or exchange any Note (i) during a period beginning
at the opening of business 15 days before any selection of Notes to be redeemed
and ending at the close of business on the day of the mailing of a notice of
redemption or (ii) selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
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Section 707 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Company and the
Trustee that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note and each
Guarantor shall endorse the Guarantee thereon if the requirements of Section
8-405 of the Uniform Commercial Code as in effect on the date of this Indenture
are met. An indemnity bond may be required that is 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 Note is replaced. The Company
may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and each Guarantor and shall be entitled to the benefits of this
Indenture.
Section 808 Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those cancelled by it and those described in this
Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, (other than a
mutilated Note surrendered for replacement) it ceases to be outstanding until
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.07.
If the Paying Agent (other than the Company or a Subsidiary)
holds on a Redemption Date or maturity date money sufficient to pay the
principal of and accrued interest on Notes payable on that date, then on and
after that date such Notes cease to be outstanding and interest on them ceases
to accrue.
A Note does not cease to be outstanding because the Company or
an Affiliate holds the Note.
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Section 909 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes and each Guarantor
shall endorse the Guarantee thereon. Temporary Notes shall be substantially in
the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes and each Guarantor
shall endorse the Guarantee thereon in exchange for temporary Notes. Until
such exchange, such temporary Notes shall be entitled to the same rights,
benefits and privileges as the definitive Notes, including the Guarantee.
Section 1010 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar or the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment for
cancellation. Subject to Section 2.07, the Company may not issue new Notes to
replace Notes that it has previously paid or delivered to the Trustee for
cancellation.
Section 1111 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest to the persons who are Noteholders on a
subsequent special record date. The Company shall fix the special record date
and payment date in a manner satisfactory to the Trustee. At least 15 days
before the special record date, the Company shall mail to each Noteholder a
notice that states the special record date, the payment date, and the amount of
defaulted interest to be paid. The Company may pay defaulted interest in any
other lawful manner.
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ARTICLE III
REDEMPTION
Section 101 Right to Redeem; Notices to Trustee.
The Company may redeem the Notes on the terms and conditions
set forth in paragraph 5 of the Notes. If the Company elects to redeem the
Notes pursuant to paragraph 5 of the Notes, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Notes to be
redeemed. The Company shall give each notice provided for in this Section in
an Officers' Certificate delivered at least 50 days before the Redemption Date
(unless a shorter period shall be satisfactory to the Trustee).
Section 202 Selection of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed pro rata or by lot or by any other method
the Trustee considers fair and appropriate. The Trustee shall make the
selection from Notes outstanding and not previously called for redemption. The
Trustee may select for redemption portions of the principal of Notes that have
denominations larger than $1,000. Notes and portions of them the Trustee
selects shall be in amounts of $1,000 or multiples of $1,000. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
Section 303 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail to each
Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the Redemption Date;
(2) the redemption price;
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(3) if any Note is to be redeemed in part, the portion of
the principal amount to be redeemed, and that on and
after the Redemption Date, upon surrender of such
Note a new Note or Notes in principal amount equal to
the unredeemed portion thereof will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
and
(6) if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate
principal amount of Notes to be redeemed and the
aggregate principal amount of Notes estimated to be
outstanding after such partial redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 404 Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price, plus accrued interest to the Redemption Date.
Section 505 Deposit of Redemption Price.
Prior to the Redemption Date, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
and accrued interest on all Notes to be redeemed on that date.
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Section 606 Notes Redeemed in Part.
After the Redemption Date, upon surrender of a Note that is
redeemed in part, the Trustee shall authenticate for the Holder a new Note and
each Guarantor shall endorse the Guarantee thereon equal in principal amount to
the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
Section 101 Payment of Notes.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent (other than the Company or a Subsidiary
of the Company) holds on that date money designated for and sufficient to pay
the installment. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at a
rate per annum equal to the rate set forth in the title of the Notes; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest at the same rate to the
extent lawful.
Section 202 Maintenance of Office or Agency.
Pursuant to the provisions of Section 2.03, the Company shall
designate in New York City an office or agency where at all times the Notes may
be surrendered for registration of transfer or exchange and where at all times
the notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. If at any time the Company shall fail to so designate
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 12.02.
The Company may also designate from time to time one or more
other offices or agencies where the
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Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to so
designate as aforesaid an office or agency in New York City for such purposes.
The Company shall give prompt notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Shawmut Trust Company, 40
Broad Street, New York, New York, as such office or agency of the Company in
accordance with this Section.
Section 303 Provision of Reports.
(a) The Company will supply without cost to each
Holder of the Notes, and file with the Trustee within 30 days after the Company
is required to file the same with the SEC, copies of the annual reports and
quarterly reports and of the information, documents and other reports which the
Company may be required to file with the SEC pursuant to Sections 13(a), 13(c)
or 15(d) of the Exchange Act.
(b) If the Company is not required to file with
SEC such reports and other information referred to in paragraph (a) above, the
Company will furnish without cost to each Holder of the Notes and file with the
Trustee (i) within 120 days after the end of each fiscal year, annual reports
containing substantially the information required to be contained in Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (ii) within
60 days after the end of each of the first three fiscal quarters of each fiscal
year, quarterly reports containing substantially the information required to be
contained in Form 10-Q promulgated under the Exchange Act, or substantially the
same information required to be contained in comparable items of any successor
form and (iii) promptly from the time after the occurrence of an event required
to be therein reported, such other reports containing substantially the
information required to be contained in Form 8-K promulgated under the Exchange
Act, or substantially the same
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information required to be contained in any successor form.
At the Company's request and at the Company's expense, the
Trustee shall deliver to the Holders the documents required to be delivered by
the Company pursuant to this Section.
Section 404 Limitation on Restricted Payments.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on account of the Company's or any of its Subsidiaries'
Capital Stock or other Equity Interests (other than dividends or distributions
payable to the Company or any of its Subsidiaries or payable in shares of
Capital Stock or Equity Interests of the Company or its Subsidiaries (other
than Redeemable Stock)), (ii) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company or any of its Subsidiaries (other
than any such Equity Interests owned by the Company or any of its
Subsidiaries), (iii) prepay, repay, redeem, defease or otherwise acquire or
retire for value prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Indebtedness of the Company that ranks
junior or pari passu in right of payment to the Notes (including the Junior
Subordinated Notes and capitalized interest thereon), (iv) incur, create or
assume any guarantee of Indebtedness of any Affiliate of the Company (other
than a wholly owned Subsidiary), provided, however, that any Subsidiary may
guarantee any Senior Indebtedness of the Company or (v) make Investments, other
than Permitted Investments, in any Person other than a wholly owned Subsidiary
(the foregoing actions set forth in clauses (i) through (v) being referred to
as "Restricted Payments") (a) if at the time of such action, or after giving
effect thereto, an Event of Default or Default shall have occurred and be
continuing; or (b) if after giving effect to such Restricted Payment, the
aggregate amount of Restricted Payments subsequent to the date of this
Indenture, would exceed: (1) the aggregate EBITDA of the Company or, in the
event such aggregate EBITDA shall be a deficit, minus such deficit, accrued
subsequent to December 31, 1993 to the end of the fiscal quarter immediately
preceding such Restricted Payment, less (2) 1.6 times Consolidated Interest
Expense
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for the same period, plus (3) the aggregate net cash proceeds received by the
Company from the issue or sale of Equity Interests of the Company (other than
Equity Interests issued or sold to a Subsidiary and other than Redeemable
Stock) after December 31, 1993, plus (4) the aggregate net cash proceeds
received by the Company upon the exercise of Equity Interests of the Company
(other than Equity Interests exercised by a Subsidiary or for Redeemable Stock)
after December 31, 1993, plus (5) $1,000,000; or (c) if after giving effect to
such Restricted Payment, the ratio of the Company's total Indebtedness to the
Company's EBITDA (determined on a pro forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the
date of determination) would be such that the Company would not be permitted to
incur $1.00 of additional Indebtedness under Section 4.07 hereof; provided,
however, that the provisions of this Section 4.04 shall not prevent (i) the
payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment complied with the provisions
hereof, (ii) any redemption of the Junior Subordinated Notes or the Series B
Preferred Stock or Series C Preferred Stock with all or part of the net
proceeds of the sale of WYAI (FM), Atlanta, Georgia, (iii) any repurchase of
Capital Stock of the Company from employees of the Company in an aggregate
amount not to exceed $500,000, provided, however, that if such Capital Stock is
resold to another employee, the aggregate net cash proceeds shall be added back
to such $500,000, provided, further, that such sale shall not be included in
clause (b)(3) of this Section 4.04 or (iv) an Investment in any Person which,
immediately after such Investment, will be a wholly owned Subsidiary, provided
that such Person conducts a business which is substantially identical to any
business conducted by the Company and its Subsidiaries on the date of this
Indenture.
Prior to making any Restricted Payment under this Section
4.04, the Company shall deliver to the Trustee an Officers' Certificate setting
forth the computation by which the amount available for Restricted Payments was
determined and stating that no Default or Event of Default exists and is
continuing and no Default or Event of Default will result from making the
Restricted Payment. The Trustee shall have no duty or responsibility to
determine the accuracy or correctness of this
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computation and shall be fully protected in relying on such Officers'
Certificate.
Section 505 Limitation on Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any Subsidiary to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction which restricts the ability of any such Subsidiary
to (i) pay dividends or make any other distributions on such Subsidiary's
Capital Stock or pay any Indebtedness owed to the Company or any Subsidiary,
(ii) make any Investment in the Company or any Subsidiary, (iii) transfer any
of its property or assets to the Company or any Subsidiary, or (iv) guarantee
any Indebtedness of the Company or any of its Subsidiaries, except any
restrictions existing under (a) applicable law, (b) this Indenture, (c) written
agreements in effect at the issuance of the Notes as described on Schedule I
hereto or restrictions contained in Specified Senior Indebtedness that are no
more restrictive than those provided in the Senior Credit Facility as in effect
on the date of this Indenture.
Section 606 Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, conduct any business or enter into any transaction or
series of related transactions (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (other than the Company or a Subsidiary) unless
(i) the terms of such business, transaction or series of transactions are as
favorable to the Company or such Subsidiary as terms that would be obtainable
at the time for a comparable transaction or series of related transactions in
arm's-length dealings with an unrelated third person, (ii) if the business or
transaction or series of transactions is in a potential aggregate amount
greater than $1,000,000, but less than $3,000,000, such business or transaction
or series of transactions shall have been approved in good faith by the Board
of Directors and a majority of the independent directors thereof and the Board
Resolution provides that the business or transac-
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tion or series of transactions meets the criterion set forth in (i) above or
(iii) if the business or transaction or series of transactions is in a
potential aggregate amount equal to or greater than $3,000,000, but less than
$15,000,000, the Company has received the written opinions of two nationally
recognized experts with experience in appraising the terms and conditions of
the type of business or transaction or series of transactions for which
approval is required, selected by the Board of Directors and all the
independent directors thereof, and such opinions are to the effect that the
business or transaction or series of transactions are fair to the Company from
a financial point of view, or (iv) if the business or transaction or series of
transactions is in a potential aggregate amount equal to or greater than
$15,000,000, the Company has received a written opinion of a nationally
recognized investment banking firm to the effect that the transaction is fair
to the Company from a financial point of view. For purposes of the preceding
sentence, a business or a transaction or series of transactions involving the
incurrence of Indebtedness or the issuance of preferred stock shall be valued
at the aggregate net proceeds of such Indebtedness or preferred stock,
respectively, without regard to interest or dividend payments. Notwithstanding
the foregoing, this provision will not apply to (a) any transaction with an
officer or director of the Company or of any Subsidiary in his or her capacity
as officer or director entered into in the ordinary course of business
(including compensation and employee benefit arrangements with any officer or
director of the Company or of any Subsidiary) or (b) the exercise of any
purchase option on a property operated pursuant to an LMA as in effect at the
issuance of the Notes.
Section 707 Limitation on Incurrence of Indebtedness.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or in any other manner become liable with respect to, or otherwise
become responsible for the payment of (collectively, "incur"), any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness, provided,
however, the Company and its Subsidiaries shall be permitted to incur
Indebtedness if, after giving effect to the incurrence of such Indebtedness and
the receipt and application of the
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proceeds thereof, the ratio of the Company's total Indebtedness to the
Company's EBITDA (determined on a pro-forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the
date of determination) is less than 6.75 to 1 if the Indebtedness is incurred
prior to December 31, 1996 and 6.25 to 1 if the Indebtedness is incurred
thereafter; provided, however, that if the Indebtedness which is the subject of
a determination under this provision is Acquired Indebtedness, or Indebtedness
incurred in connection with the simultaneous acquisition of any Person,
business, property or assets, then such ratio shall be determined by giving
effect (on a pro forma basis, as if the transaction had occurred at the
beginning of the four quarter period) to both the incurrence or assumption of
such Acquired Indebtedness or such other Indebtedness by the Company and the
inclusion in the EBITDA of the EBITDA of the acquired Person, business,
property or assets. The accrual of deferred interest on the Junior
Subordinated Notes shall not be deemed an incurrence of Indebtedness for
purposes of this covenant.
Notwithstanding the foregoing, the Company may not incur or
otherwise cause or suffer to exist any Indebtedness of the Company that ranks
junior in right of payment to the Notes that (a) has a maturity date or
mandatory sinking fund payment prior to the maturity of the Notes or (b) would
become due and payable or be capable of being declared due and payable, with
the passage of time or otherwise, prior to the date on which it would otherwise
become due and payable, solely as a result of a default or Event of Default
under the Notes or a default or event of default under the Senior Credit
Facility which would cause Indebtedness thereunder to be capable of being
declared due and payable prior to the date on which it would otherwise become
due and payable.
Section 808 Change of Control.
Following the occurrence of any Change of Control, the Company
shall offer (a "Change of Control Offer") to purchase all outstanding Notes at
a purchase price equal to 101% of the aggregate principal amount of the
outstanding Notes, plus accrued and unpaid interest to the date of purchase.
The Change of Control Offer shall be deemed to have commenced upon mailing of
the notice described in the next succeeding paragraph and
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shall terminate 20 Business Days after its commencement, unless a longer
offering period is required by law. Promptly after the termination of the
Change of Control Offer (the "Change of Control Payment Date"), the Company
shall purchase and mail or deliver payment for all Notes properly tendered in
response to the Change of Control Offer. If the Change of Control Payment Date
is on or after an interest payment record date and on or before the related
interest payment date, any accrued interest will be paid to the person in whose
name a Note is registered at the close of business on such record date, and no
additional interest will be payable to Holders who tender Notes pursuant to the
Change of Control Offer.
Within 30 days after any Change of Control, the Company (with
notice to the Trustee), or the Trustee at the Company's request, will mail or
cause to be mailed to all Holders on the date of the Change of Control a notice
of the occurrence of such Change of Control and of the Holders' rights arising
as a result thereof. Such notice will contain all instructions and materials
necessary to enable Holders to tender their Notes to the Company. Such notice,
which shall govern the terms of the Change of Control Offer, shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.08, the events causing
such Change of Control and the length of time the
Change of Control Offer will remain open;
(2) the purchase price and the Change of Control Payment
Date;
(3) that any Note not tendered will continue to accrue
interest;
(4) that any Note or portion thereof tendered for payment
pursuant to the Change of Control Offer shall cease
to accrue interest on the Change of Control Payment
Date, except for any Note for which the Change of
Control Payment Date falls between an interest
payment record date and the related interest payment
date, which shall bear interest to such latter date;
and
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(5) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than
the expiration of the Change of Control Offer, or
such longer period as may be required by law, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the certificate
number and the principal amount of the Note the
Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have the
Note purchased.
On or before a Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Notes or portions thereof so accepted and (iii)
deliver to the Trustee Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Company and the
Guarantors shall execute and the Trustee shall promptly authenticate and mail
or deliver to Holders of Notes tendered only in part, a new Note equal in
principal amount to any unpurchased portion of the Note surrendered. The
Company will publicly announce the results of the Change of Control Offer on
the Change of Control Payment Date. For purposes of this Section 4.08, the
Trustee shall act as the Paying Agent.
Section 909 Limitation on Use of Proceeds from Asset Sales.
The Company and its Subsidiaries will not, directly or
indirectly, consummate any Asset Sale unless (i) at least 85% of the Net
Proceeds from the Asset Sale are received in cash at closing, (ii) the
consideration received from such Asset Sale is at least equal to the fair
market value of the property sold as determined by the Board of Directors and
(iii) the Company makes an offer (the "Excess Proceeds Offer") to apply the
Excess Proceeds (as defined below), once such Excess Proceeds accumulate to a
sum greater than $5,000,000 (such sum, without the addition of subsequent
Excess Proceeds re-
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flecting subsequent Asset Sales, referred to herein as the "Asset Sale
Payment"), to redeem Notes, on a date not later than 180 days after any Asset
Sale which causes such Excess Proceeds to exceed $5,000,000 (the "Asset Sale
Payment Date"), at a purchase price equal to 100% of the principal amount of
such Notes, plus accrued and unpaid interest to the Asset Sale Payment Date.
Any amount of Net Proceeds from an Asset Sale, whether received in cash at the
closing of such sale or disposition or subsequently received in cash upon
liquidation of non-cash Net Proceeds, shall be deemed Excess Proceeds from such
sale or disposition to the extent it is not within 180 calendar days after such
sale or disposition, (i) reinvested or contractually committed to be reinvested
pursuant to a binding agreement in properties or assets that will be used in
the lines of business of the Company and its Subsidiaries existing on the date
of such sale or disposition and the Company delivers a notice of such
reinvestment to the Trustee within such 180 calendar days, (ii) used for the
prepayment of any Senior Indebtedness of the Company, provided, however, such
prepayment causes a permanent reduction of borrowing availability under the
debt instrument related to such Indebtedness and the Company delivers a notice
to such effect to the Trustee within such 180 calendar days or (iii), in the
case of proceeds from the sale of WYAI(FM), used for the repayment or
redemption of the Junior Subordinated Notes, Series B Preferred Stock or Series
C Preferred Stock.
Notice of an Excess Proceeds Offer shall be mailed by the
Company to all Holders not less than 30 days nor more than 60 days before the
Asset Sale Payment Date at their last registered address. The Excess Proceeds
Offer shall remain open from the time of mailing until five days before the
Asset Sale Payment Date. The notice shall be accompanied by a copy of the most
recent report furnished to the Holders pursuant to Section 4.03 hereof. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice,
which shall govern the terms of the Excess Proceeds Offer, shall state:
(1) that the Excess Proceeds Offer is being made pursuant
to this Section 4.09;
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(2) the Asset Sale Payment, the purchase price (including
the amount of accrued interest) and the Asset Sale
Payment Date;
(3) that any Note not tendered or accepted for payment
will continue to accrue interest;
(4) that, unless the Company defaults in the making of
the Asset Sale Payment, any Note accepted for payment
pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the Asset Sale Payment Date;
(5) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than
three days prior to the Asset Sale Payment Date, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his
election to have the Note purchased;
(6) that if Notes in a principal amount in excess of the
Asset Sale Payment are tendered pursuant to the
Excess Proceeds Offer, the Company shall purchase
Notes on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company and the
Trustee so that only Notes in denominations of $1,000
or integral multiples of $1,000 shall be acquired);
and
(7) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered.
Before an Asset Sale Payment Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Excess
Proceeds Offer (on a pro rata basis if required pursuant to paragraph (6)
above), (ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof
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so accepted and (iii) deliver to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Notes so accepted payment in an amount equal to the purchase price,
and the Company and the Guarantors shall execute and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company will publicly announce the results of the Excess Proceeds
Offer on the Asset Sale Payment Date. For purposes of this Section 4.09, the
Trustee shall act as the Paying Agent.
After the Asset Sale Payment Date, any Excess Proceeds not
used to repurchase Notes (excluding Excess Proceeds received after the Asset
Sale causing the repurchase, which shall be available for subsequent Asset Sale
Payments in subsequent Excess Proceeds Offers) shall be available for general
corporate purposes and shall not be applied to subsequent Excess Proceeds
Offers.
All cash Net Proceeds from an Asset Sale shall be invested
only in Permitted Investments until reinvested, used for prepayment of debt,
used to repurchase Notes or made available for general corporate purposes all
in accordance with this Section 4.09.
Notwithstanding the foregoing, the Company will not, and will
not permit any Subsidiary to, directly or indirectly make any Asset Sale of any
of the Capital Stock of a Subsidiary except pursuant to an Asset Sale of all
the Capital Stock of such Subsidiary.
Section 1010 Compliance with Securities Laws upon Purchase of
Notes.
In connection with any offer to purchase or purchase of Notes
under Sections 4.08 or 4.09 hereof, the Company shall (i) comply with Rule
14e-1 under the Exchange Act and (ii) otherwise comply with all Federal and
state securities laws so as to permit the rights and obligations under Sections
4.08 and 4.09 to be exercised in the time and in the manner specified in
Sections 4.08 and 4.09.
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Section 1111 Limitation on Liens Securing Subordinated
Indebtedness.
The Company will not, and will not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien of any kind, other than
Permitted Liens, upon any of their respective assets now owned or acquired
after the date hereof or any income or profits therefrom securing (i) any
Subordinated Indebtedness of the Company, unless the Company provides, and
causes its Subsidiaries to provide, concurrently or immediately thereafter,
that the Notes are equally and ratably secured, provided that, if such
Subordinated Indebtedness is expressly subordinated to the Notes, the Lien
securing such Subordinated Indebtedness shall be subordinate and junior to the
Lien securing the Notes with the same relative priority as such Subordinated
Indebtedness shall have with respect to the Notes, and provided, further, that
this clause (i) shall not be applicable to any Liens securing any such
Indebtedness which became Indebtedness of the Company pursuant to a transaction
subject to the provisions of Article 5 or which constitutes Acquired
Indebtedness and which Liens were in existence at the time of such transaction
(unless such Indebtedness was incurred or such Lien created in connection with,
or in contemplation of, such transaction), so long as such Liens do not extend
to or cover any property or assets of the Company or any Subsidiary of the
Company other than property or assets acquired in such transaction; or (ii) any
assumption, guarantee or other liability of any Subsidiary of the Company in
respect of any Subordinated Indebtedness of the Company, unless a substantially
similar assumption, guarantee or other liability of such Subsidiary in respect
of the Notes, concurrently or immediately thereafter, shall be equally and
ratably secured, provided that if such Subordinated Indebtedness is expressly
subordinated in right of payment to the Notes, the Lien securing the
assumption, guarantee or other liability of such Subsidiary in respect to such
Subordinated Indebtedness shall be subordinate and junior to the Lien securing
the assumption, guarantee or other liability of such Subsidiary in respect of
the Notes with the same relative priority as such Subordinated Indebtedness
shall have with respect to the Notes, and provided, further, that this clause
(ii) shall not be applicable to Liens securing any such assumption, guarantee
or other liability which existed at the time such Subsidiary
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became a Subsidiary of the Company or which constitutes Acquired Indebtedness
of a Subsidiary and which Liens were in existence at the time of such
transaction (unless such assumption, guarantee or other liability was incurred
or such Lien created in connection with, or in contemplation of, such Person
becoming a Subsidiary of the Company), so long as such Liens do not extend to
or cover any property or assets of the Company or any Subsidiary of the Company
other than the assets of such Person.
Section 1212 Limitation on Other Senior Subordinated Indebtedness.
The Company will not create, incur, assume, guarantee or in
any manner become liable with respect to any Indebtedness (other than the
Notes) that is expressly subordinate in right of payment to any Senior
Indebtedness unless such Indebtedness is also pari passu with or subordinate in
right of payment to the Notes, pursuant to subordination provisions
substantially similar to those contained in Article 10 hereof.
Section 1313 Limitation on Capital Stock of Subsidiaries.
The Company will not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Capital Stock of a Subsidiary (other than
under the Senior Credit Facility or a successor facility or under the terms of
any Specified Senior Indebtedness) or (ii) permit any of its Subsidiaries to
issue any Capital Stock, other than to the Company or a wholly owned Subsidiary
of the Company. The foregoing restrictions shall not apply to an Asset Sale
made in compliance with Section 4.09 hereof or the issuance of Subsidiary
Preferred Stock in compliance with Section 4.07 hereof.
Section 1414 Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any Subsidiary to,
enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold, as determined by a Board Resolution of the
Company, and (ii) the Company
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could incur Attributable Debt in respect of such Sale and Lease-Back
Transaction under Section 4.07 hereof.
Section 1515 Corporate Existence.
Subject to Article 5, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and the rights (charter and
statutory) and franchises of the Company and the Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right or
franchise, or the corporate existence of any Subsidiary (except as provided in
Article 11), if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and the Subsidiaries taken as a whole and that the loss thereof is not, and
will not be, adverse in any material respect to the Noteholders.
Section 1616 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings if adequate reserves, if necessary, have been made for
such disputed amounts.
Section 1717 Notice of Defaults.
In the event that the Company becomes aware of any Default or
Event of Default, the Company shall promptly deliver to the Trustee an
Officers' Certificate specifying such Default or Event of Default.
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Section 1818 Compliance Certificates.
The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default. If they do
know of such a Default or Event of Default, the Certificates shall describe the
Default or Event of Default and the efforts to remedy the same. The first
certificates to be delivered by the Company pursuant to this Section shall be
for the fiscal year ending December 31, 1993.
Section 1919 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenant (to the extent that
they may lawfully do so) that they will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or such Guarantor from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture, and (to the extent that they may lawfully do so) the Company
and each Guarantor hereby expressly waive all benefit or advantage of any such
law, and covenant that they 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 2020 Properties.
The Company shall cause all properties used in the conduct of
its businesses and the business of each of the Subsidiaries to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
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properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors, or of an officer (or other agent
employed by the Company) of the Company having managerial responsibility for
any such property, desirable in the conduct of the business of the Company or
the Subsidiary and not disadvantageous in any material respect to the Holders.
Section 2121 Insurance.
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 customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance for itself and
where appropriate for its Subsidiaries, with reputable insurers or with the
government of the United States or an agency or instrumentality thereof, in
such amounts, with such deductibles and by such methods as shall be customary
for corporations similarly situated in the industry.
Section 2222 Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Noteholder for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or
agreed to be paid to all Noteholders which so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE V
MERGER AND SALE OF ASSETS
Section 101 When Company or Guarantor May Merge, etc.
Neither the Company nor any Guarantor shall consolidate with
or merge with or into, or transfer all
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or substantially all of its assets in one transaction or a series of related
transactions to, any Person unless:
(1) either the Company or such Guarantor, as the case may
be, shall be the continuing Person, or the Person (if
other than the Company or such Guarantor, as the case
may be) formed by such consolidation or into which
the Company or such Guarantor, as the case may be, is
merged or to which the properties and assets of the
Company or such Guarantor, as the case may be, as an
entirety or substantially as an entirety are
transferred, shall be a corporation organized and
existing under the laws of the United States or any
state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations
of the Company under the Notes or such Guarantor
under the Guarantee and this Indenture shall remain
in full force and effect;
(2) the Person formed by such consolidation or surviving
such merger or to which the properties and assets of
the Company or such Guarantor, as the case may be, as
an entirety or substantially as an entirety are
transferred, shall have a Consolidated Net Worth
after giving effect to such transaction (including
the assumption by the successor of the Notes but
excluding any write-ups of assets resulting from such
transaction) equal to or greater than the
Consolidated Net Worth of the Company or such
Guarantor, as the case may be, immediately preceding
such transaction;
(3) immediately before and immediately after giving
effect to such transaction, no Event of Default and
no Default shall have occurred and be continuing;
(4) the Company, such Guarantor or the successor, as the
case may be, for the last four
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full fiscal quarters preceding the date of the
transaction for which financial statements are
available, on a pro forma basis to give effect to the
transaction, would be entitled to incur, immediately
following the transaction, $1.00 of additional
Indebtedness under Section 4.07 hereof; and
(5) the Company or such Guarantor, as the case may be,
has delivered to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate
compliance with clauses (2) and (4)) and an Opinion
of Counsel, each stating that such consolidation,
merger, transfer or lease and such supplemental
indenture comply with this Article and that all
conditions precedent herein provided relating to such
transaction have been complied with.
Notwithstanding the foregoing, any Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company or any other Subsidiary or Subsidiaries.
Section 202 Successor Entity Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or any Guarantor, in accordance
with Section 5.01, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, 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 or such Guarantor, as the case
may be, under this Indenture with the same effect as if such successor Person
had been named as the Company or such Guarantor, as the case may be, herein.
When a successor Person assumes all of the obligations of the Company or any
Guarantor, as the case may be, hereunder and under the Notes or the Guarantee,
the predecessor shall be released from such obligation.
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ARTICLE VI
DEFAULTS AND REMEDIES
Setion 101 Events of Default.
An "Event of Default" occurs if one of the following shall
have occurred and be continuing:
(1) the Company defaults in the payment of (i) interest
on any Note and the default continues for a period of
30 days, or (ii) the principal of or premium, if any,
on any Notes when the same becomes due and payable at
maturity, acceleration, on the Redemption Date, on
the Change in Control Payment Date, on any Asset Sale
Payment Date or otherwise;
(2) The Company or any Guarantor fails to comply with any
of its covenants or agreements in the Notes or this
Indenture (other than those referred to in clause (1)
above) and such failure continues for 30 days after
receipt by the Company of a Notice of Default;
(3) default under any mortgage, indenture or instrument
under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Subsidiaries
(or the payment of which is guaranteed by the Company
or any of its Subsidiaries) whether such Indebtedness
or guarantee is now existing or hereafter created,
and the default relates to (a) the obligation to pay
principal on such Indebtedness when due and such
default is not cured or waived or paid within any
grace period and such principal payment, together
with any other principal amount in default,
aggregates $3,000,000 or more or (b) any other
obligation which results in such Indebtedness being
accelerated prior to its express maturity and, in
each case, the principal amount of such Indebtedness,
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together with principal amount of any other such
Indebtedness the maturity of which has been
accelerated, aggregates $3,000,000 or more;
(4) the Company or any Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or
proceeding;
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its
property;
(D) makes a general assignment for the benefit of
its creditors; or
(E) admits in writing its inability to pay its
debts generally as they become due;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case or
proceeding;
(B) appoints a Custodian of the Company or any
Subsidiary for all or substantially all of
its properties;
(C) orders the liquidation of the Company or any
Subsidiary;
(D) and in each case the order or decree remains
unstayed and in effect for 60 days; or
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(6) final judgments for the payments of money which in
the aggregate exceed $1,000,000 shall be rendered
against the Company or any Subsidiary by a court and
shall remain unstayed or undischarged for a period of
45 days.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
A Default under clause (2) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding notify the Company and
the Trustee, of the default and the Company does not cure the default within
the time specified in clause (2) above after receipt of such notice. The
notice must specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default."
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee shall not be charged with knowledge of any Event of Default unless a
Trust Officer of the Trustee has actual knowledge thereof or written notice
thereof shall have been given to a Trust Officer of the Trustee at the
Corporate Trust Office by the Company, the Paying Agent, any Holder of a Note
or an agent of such Holder.
Section 202 Acceleration.
If any Event of Default under clauses (1), (2), (3) or (6)
occurs and is continuing, the Trustee may, by written notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare the principal of the Notes,
premium, if any, and accrued interest due and payable (i) immediately if no
amount is outstanding and no commitment is in effect under the Specified Senior
Indebtedness or (ii) if any amount is outstanding or any commitment is in
effect under the Specified Senior Indebtedness, upon the earlier of three
business days after delivery of the acceleration notice to the Company by the
Trustee or the Holders, as
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the case may be, or acceleration of the Specified Indebtedness, and thereupon
the Trustee may, at its discretion, proceed to protect and enforce the rights
of the Holders of the Notes by appropriate judicial proceedings. If any Event
of Default under clauses (4) or (5) occurs, all principal, premium, if any, and
interest on the Notes will immediately become due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in aggregate principal amount of the Notes then outstanding by
written notice to the Trustee and to the Company may rescind an acceleration
and its consequences (except an acceleration due to a default in payment of the
principal and interest on any of the Notes) if all existing Events of Default
have been cured or waived except non-payment of principal or interest that has
become due solely because of the acceleration.
Section 303 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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.
Section 404 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding, by notice to the Trustee (and without notice to
any other Noteholder), may waive an existing Default or Event of Default and
its consequences except (a) an Event of Default described in Section 6.01(1)
hereof, or (b) a Default in respect of a provision that under Section 9.02
hereof cannot be amended without the consent of each Noteholder affected. When
a Default is waived, it is
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deemed cured and shall cease to exist, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
Section 505 Control by Majority.
The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or
that the Trustee determines in good faith is unduly prejudicial to the rights
of other Noteholders or would involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 606 Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable indemnity against any loss, liability or
expense;
(4) the Trustee does not comply with the request within
30 days after receipt of the notice, the request and
the offer of indemnity; and
(5) the Holders of a majority in aggregate principal
amount of the Notes at the time outstanding do not
give the Trustee a direction inconsistent with the
request during such 30-day period.
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A Noteholder may not use this Indenture to prejudice the
rights of any other Noteholder or to obtain a preference or priority over any
other Noteholder.
Section 707 Rights of Holders to Receive Payment.
Notwithstanding any other provisions of this Indenture, the
right of any Holder to receive payment of the principal amount, premium, if
any, or interest, in respect of the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, any Redemption Date, any Change in
Control Payment Date or any Asset Sale Payment Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected adversely without the consent of each such Holder.
Section 808 Collection Suit by Trustee.
If an Event of Default described in Section 6.01(1) hereof
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company, any Guarantor or any other
obligor on the Notes for the whole amount owing with respect to the Notes and
the amounts provided for in Section 7.07 hereof.
Section 909 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, any Guarantor or any
other obligor upon the Notes or their respective properties, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the
principal amount, premium, if any, and interest on
the Notes and to file such other papers or documents
as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and
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of the Holders allowed in such judicial proceeding;
and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 1010 Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07 hereof;
Second: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to such amounts due and payable on
the Notes; and
Third: the balance, if any, to the Company, or its designee.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
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Section 1111 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
aggregate principal amount of the Notes at the time outstanding.
ARTICLE VII
TRUSTEE
Section 101 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise its rights and
powers and use the same degree of care and skill in
their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties
that are specifically set forth in this
Indenture and no others.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely as to the truth
of the statements and the correctness of the
opinions expressed therein upon certificates
or opinions furnished to the Trustee and
conforming to the
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requirements of this Indenture. The Trustee,
however, shall examine the certificates and
opinions to determine whether or not they
conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a 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 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives
indemnity satisfactory to it against any loss,
liability, expense or fee.
(f) The Trustee shall not be liable for interest on any
money received by it. Money held in trust by the
Trustee need not be segregated from other funds
except to the extent required by law.
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Sectin 202 Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Section 12.05. The
Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such
Certificate or Opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any
agent appointed with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers.
Section 303 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or its
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 is subject to
Sections 7.10 and 7.11.
Section 404 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement in the Notes other than its certificate of authentication.
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Section 505 Notice of Defaults or Events of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to a Trust Officer of the Trustee, the Trustee
shall mail to each Noteholder notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or an Event of
Default in payment of any Note, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
Secton 606 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15, 1994,
the Trustee shall mail to each Noteholder a brief report dated as of such May
15 that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b)(2) and (c).
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company agrees to notify the Trustee whenever the Notes
become listed on any stock exchange.
Section 707 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust). The Company shall reimburse the Trustee upon request for
all reasonable disbursements, expenses and advances incurred or made by it.
Such expenses may include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee, its agents,
employees, officers, directors and stockholders for, and hold them harmless
against, any loss, liability or expense incurred by them in connection with
their duties under this Indenture. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity.
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The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through its
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee, except such money or property held in trust to pay
principal and interest on particular Notes.
Section 808 Replacement of Trustee.
The Trustee may at any time resign by so notifying the
Company. The Holders of a majority in principal amount of the Notes then
outstanding may remove the Trustee by so notifying the removed Trustee and the
Company and may appoint a successor Trustee with the Company's written consent.
A resignation or removal of the Trustee and the appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least a majority in principal amount of the Notes
then outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall, upon payment of its charges, transfer all
property held by it as Trustee to the successor Trustee, 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
Noteholder.
Section 909 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 1010 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee is subject to 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.
Section 1111 Preferential Collection of Claims against 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.
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ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 101 Termination of Company's Obligations.
The Company may terminate all of its obligations under the
Notes and this Indenture, and the obligations of the Guarantors shall
terminate, if all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes which have been replaced or paid) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder. In addition, the Company may elect to have either
paragraph (a) or (b) below applied to the outstanding Notes upon compliance
with the conditions set forth in paragraph (c) below.
(a) Upon exercise of the option applicable to this
paragraph (a), the Company and each Guarantor shall
be deemed to have been released and discharged from
their obligations with respect to the outstanding
Notes on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For
this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed
to be "outstanding" only for the purposes of the
Sections of and matters under this Indenture referred
to in (i) and (ii) below, and to have satisfied all
their other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and
the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same),
except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive
solely from the trust fund described in paragraph (c)
below and as more fully set forth in such paragraph,
payments in respect of the principal of, premium, if
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any, and interest on such Notes when such payments
are due, (ii) the Company's obligations and, to the
extent applicable, the Guarantors' obligations with
respect to such Notes under Sections 2.06, 2.07 and
4.02, and, with respect to the Trustee, under
Sections 7.07 and 8.03, (iii) the rights, powers,
trusts, duties and immunities of the Trustee
hereunder and (iv) this Section 8.01. Subject to
compliance with this Section 8.01, the Company may
exercise its option under this paragraph (a)
notwithstanding the prior exercise of its option
under paragraph (b) below with respect to the Notes.
(b) Upon exercise of the option applicable to this
paragraph (b), the Company and, to the extent
applicable, each Guarantor shall be released and
discharged from their obligations under any covenant
contained in Article 5 and in Sections 4.03 through
4.07 and 4.09 through 4.14 with respect to the
outstanding Notes on and after the date the
conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Notes
shall thereafter be deemed to be not "outstanding"
for the purpose of any direction, waiver, consent or
declaration or act of Holders of Notes (and the
consequences of any thereof) in connection with such
covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that,
with respect to the outstanding Notes, the Company
and each Guarantor may omit to comply with and shall
have no liability in respect of any term, condition
or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other
provision herein or in any other document and such
omission to comply shall not constitute a Default or
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an Event of Default under Section 6.01, but, except
as specified above, the remainder of this Indenture
and such Notes shall be unaffected thereby.
(c) The following shall be the conditions to the
application of either paragraph (a) or (b) above to
the outstanding Notes:
(1) the Company irrevocably deposits in trust
with the Trustee money or U.S. Government
Obligations, sufficient to pay (upon initial
deposit without need for reinvestment)
principal and interest on the Notes to
maturity or redemption, as the case may be,
and to pay all other sums payable by it
hereunder;
(2) the Company has delivered to the Trustee an
Officers' Certificate stating that (A) all
conditions precedent provided for relating to
either the legal defeasance under paragraph
(a) above or the covenant defeasance under
paragraph (b) above, as the case may be, have
been complied with and (B) if any other
Indebtedness of the Company shall then be
outstanding or committed, such legal
defeasance or covenant defeasance will not
violate the provisions of the agreements or
instruments evidencing such Indebtedness;
(3) no Default or Event of Default shall have
occurred and be continuing on the date of
such deposit;
(4) such legal defeasance or covenant defeasance
shall not result in a breach or violation of,
or constitute a Default or Event of Default
under, this Indenture or any other agreement
or instrument to which the Company is a party
or by which it is bound;
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(5) in the case of an election under paragraph
(a) above, the Company shall have delivered
to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to
the Trustee stating that (a) the Company has
received from, or there has been published
by, the Internal Revenue Service a ruling or
(b) since the date of this Indenture, there
has been a change in the applicable Federal
income tax law, in either case to the effect
that the Holders of the outstanding Notes
will not recognize income, gain or loss for
Federal income tax purposes as a result of
such legal defeasance and will be subject to
Federal income tax on the same amount and in
the same manner and at the same time as would
have been the case if such legal defeasance
had not occurred; and
(6) in the case of an election under paragraph
(b) above, the Company shall have delivered
to the Trustee an Opinion of Counsel from
nationally recognized counsel acceptable to
the Trustee to the effect that the Holders of
the outstanding Notes will not recognize
income, gain or loss for Federal income tax
purposes as a result of such covenant
defeasance and will be subject to Federal
income tax on the same amount and in the same
manner and at the same time as would have
been the case if such covenant defeasance had
not occurred.
After such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes, the Guarantee and this Indenture except for those
surviving obligations specified above.
In order to have money available on a payment date to pay
principal or interest on the Notes, the U.S.
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Government Obligations shall be payable as to principal of or interest on or
before such payment date in such amounts as will provide the necessary money.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which the full faith and credit of the United
States is pledged.
Section 202 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
and interest on the Notes.
Section 303 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon request any excess money or U.S. Government Obligations held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest on the
Notes that remains unclaimed for two years, provided that the Company shall
have first caused notice of such payment to be published once in a newspaper of
general circulation in the City of New York or mailed by certified mail to each
Noteholder entitled thereto no less than 30 days prior to such repayment.
After that, Noteholders entitled to the money must look to the Company or the
Guarantors for payment as general creditors unless otherwise provided by law.
Section 404 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 8.02 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
and the Guarantors' obligations under this Indenture, the Notes and the
Guarantee shall be revived and reinstated as though no deposit had occurred
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pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money in accordance with Section 8.02; provided
that, if the Company has made any payment of interest on or principal of any
Note because of the reinstatement of its obligations, the Company or the
Guarantors shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 101 Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Notes without notice to or consent of any Noteholder:
(1) to comply with Article Five;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to cure any ambiguity, defect or inconsistency, or to
make any other change that does not adversely affect
the rights of any Noteholder; or
(4) to comply with the TIA.
Section 202 With Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Notes with the written consent of the Holders of a majority in principal amount
of the Notes then outstanding. The Holders of a majority in principal amount
of the Notes then outstanding may waive compliance in a particular instance by
the Company with any provision of this Indenture or the Notes. However,
without the consent of each Noteholder affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
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(1) reduce the principal amount of Notes whose Holders
must consent to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Note;
(3) reduce the principal of or change the fixed maturity
of any Note or alter the redemption provisions with
respect thereto;
(4) waive a default in the payment of the principal of
(or premium, if any, on) or interest on any Note
(including any payment required pursuant to Sections
4.08 and 4.09);
(5) make any Note payable in money other than that stated
in the Note;
(6) make any change in Section 6.04 or 6.07 or the third
sentence of this Section; or
(7) make any change in Section 4.08 or 4.09 hereof.
Any amendment shall be effective upon certification to the
Trustee by the Company or an agent of the Company that such amendment has been
authorized by the Company and that the consent of the majority of an aggregate
principal amount of the Notes has been obtained, unless such consents specify
that they shall become effective at a later date, in which case such amendment
shall become effective in accordance with the terms of such consent.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to Noteholders a notice briefly describing
the amendment. 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
supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but
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it shall be sufficient if such consent approves the substance thereof.
Section 303 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 404 Revocation and Effect of Consents.
Until an amendment, supplement, waiver, or other action
becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note even if
notation of the consent is not made on any Note. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Note or portion of a Note if
the Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes 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. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described
in any of clauses (1) through (7) of Section 9.02. In that case the amendment,
supplement, waiver or other action shall bind each Holder of a Note who has
consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note.
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Section 505 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determine, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
Section 606 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may but need not sign it. In signing or refusing to sign
such amendment or supplement the Trustee shall be entitled to receive and,
subject to Section 7.01, shall be fully protected in relying upon, an Opinion
of Counsel stating that such amendment or supplement is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplement until
the Board of Directors approves it.
ARTICLE X
SUBORDINATION
Section 101 Agreement to Subordinate.
The Company agrees, and each Noteholder by accepting a Note
agrees, that the Indebtedness evidenced by the Notes (including principal,
premium, if any, and interest) is subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment in
full of all Senior Indebtedness, and that the subordination is for the benefit
of the holders of the Senior Indebtedness.
Section 202 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a total
or partial liquidation or any dissolu-
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tion or winding up of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property or in an assignment for the benefit of creditors or any marshalling of
the assets and liabilities of the Company, whether voluntary or involuntary:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of the principal and
interest (including interest after the commencement
of any such proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not such
interest is allowed as a claim after commencement of
any such proceeding) to the date of payment on the
Senior Indebtedness before Noteholders shall be
entitled to receive any payment of principal of,
interest on or otherwise in respect of the Notes; and
(2) until the Senior Indebtedness (as provided in
subsection (1) above) is paid in full in cash, any
distribution to which Noteholders would be entitled
but for this Article 10 (including any payment which
may be payable by reason of the payment of any other
Indebtedness of the Company being subordinated to the
payment of the Notes) shall be made to holders of
Senior Indebtedness, as their interests may appear,
except that Noteholders may receive Capital Stock or
securities that are subordinated, to at least the
same extent as the Notes, to (a) Senior Indebtedness
and (b) any securities issued in exchange for Senior
Indebtedness.
For purposes of this Article 10, a distribution may consist of
cash, securities or other property, by setoff or otherwise.
Section 303 Default on Senior Indebtedness.
Upon the final maturity of any Senior Indebtedness by lapse of
time, acceleration or otherwise, all such Senior Indebtedness shall first be
paid in full or
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such payment duly provided for in cash or in a manner satisfactory to the
holders of such Senior Indebtedness, before any payment is made by the Company
or any person acting on behalf of the Company on account of the principal,
interest or other charges in respect of the Notes.
The Company may not pay principal of or interest on the Notes
or make any other direct or indirect payment or distribution on or in respect
of the Notes (including any payment which may be payable by reason of the
payment of any other Indebtedness of the Company being subordinated to the
payment of the Notes) and may not acquire any Notes for cash or property (other
than Capital Stock of the Company or other securities of the Company that are
subordinated, to at least the same extent as the Notes, to (a) Senior
Indebtedness and (b) any securities issued in exchange for Senior Indebtedness)
if:
(1) a default in the payment of the principal of or
interest on any Specified Senior Indebtedness occurs
and is continuing that then permits the holders (or
the agent) of such Specified Senior Indebtedness to
accelerate its maturity or on the basis of which the
maturity of such Specified Senior Indebtedness has
been accelerated; or
(2) a default, other than a payment default, on any
Specified Senior Indebtedness occurs and is
continuing that then permits the holders (or the
agent) of such Specified Senior Indebtedness to
accelerate its maturity, and either such default is
the subject of judicial proceedings or the Trustee or
Paying Agent receives a notice of the default from a
person who may give it pursuant to Section 10.11
hereof at least two business days prior to the
relevant payment date. If the Company receives any
such notice, a subsequent notice received within 365
days thereafter shall not be effective for purposes
of this Section 10.03(2). No non-payment default
which existed or was continuing on the date of
delivery of any such notice shall be, or be made, the
basis for a sub-
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sequent notice unless such default shall have been
cured or waived for a period of not less than 90
days.
The Company shall resume payments on the Notes (including any
missed payments and interest thereon) and may acquire them upon the earlier of:
(a) the default under Specified Senior Indebtedness is
cured or waived, or
(b) in the case of a default referred to in Section
10.03(2) above, 179 days pass after the notice is
given if the default is not the subject of judicial
proceedings,
if this Article 10 otherwise permits the payment or acquisition at that time.
Secton 404 Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall immediately notify holders of Senior Indebtedness of
the acceleration. The Company may pay the Notes three business days after the
delivery of the acceleration notice if this Article 10 permits the payment at
that time; provided, however, that if no Senior Indebtedness is outstanding at
the time of such acceleration, the Company shall pay the Notes in accordance
with the provisions of Article 6 hereof.
Section 505 When Distribution Must Be Paid Over.
In the event that the Company shall make any payment to the
Trustee on account of the principal and interest on the Notes at a time when
such payment is prohibited by Section 10.02 or 10.03 hereof and the Trustee has
received notice thereof, such payment shall be held by the Trustee, in trust
for the benefit of, and shall be paid forthwith over and delivered, upon
written request, to, the holders of Senior Indebtedness (pro rata as to each of
such holders on the basis of the respective amounts of Senior Indebtedness held
by them) or their representative, as their respective interests may appear, for
application to the payment of all Senior Indebtedness in full in accordance
with their terms, after giving
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effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
If a distribution is made to Noteholders that because of this
Article 10 should not have been made to them, the Noteholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness (pro
rata as to each of such holders on the basis of the respective amounts of
Senior Indebtedness held by them) or their representative, as their respective
interests may appear, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in full
in accordance with their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness.
Section 606 Notice by the Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of principal
of or interest on the Notes to violate this Article 10, but failure to give
such notice shall not affect the subordination of the Notes to the Senior
Indebtedness provided in this Article 10. Nothing in this Article 10 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07 hereof.
Section 707 Subrogation.
After all Senior Indebtedness is paid in full and until the
Notes are paid in full, Noteholders shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Notes, if any) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article 10 to holders of Senior
Indebtedness which otherwise would have been made to Noteholders is not, as
between the Company and the Noteholders, a payment by the Company on Senior
Indebtedness.
Section 808 Relative Rights.
This Article 10 defines the relative rights of Noteholders and
holders of Senior Indebtedness. Nothing in this Indenture shall:
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(1) impair, as between the Company and Noteholders, the
obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on
the Notes in accordance with their terms;
(2) affect the relative rights of Noteholders and
creditors of the Company other than holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Noteholder from exercising
its available remedies upon a Default or Event of
Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise
payable to Noteholders.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default. Notwithstanding the foregoing, any acceleration
of the maturity of the Notes due to the default by the Company to make a
payment required by Sections 6.01(1) and (2) hereof resulting from the
operation of Section 10.03 hereof shall be automatically rescinded to the
extent permitted by applicable law and all Events of Default which permitted
the acceleration of the Notes or the pursuit of other remedies hereunder and
under applicable law shall be deemed to be automatically and permanently cured
to the extent permitted by applicable law if (i) all defaults on Specified
Senior Indebtedness are permanently cured or waived and (ii) the payment or
payments, the omission of which gave rise to the Event of Default, is or are
made within 179 days after the date on which the Trustee or the Paying Agent
received notice of the default or defaults on the Specified Senior
Indebtedness; and provided further that at the time of such automatic
rescission no other Event of Default or Defaults shall have occurred and be
continuing. Such automatic rescission shall be effective as of the date both
conditions specified in clauses (i) and (ii) above are satisfied.
Section 909 Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evi-
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denced by the Notes shall be impaired by any act or failure to act by the
Company or by its failure to comply with this Indenture.
Section 1010 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Noteholders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such representative or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Noteholders 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 10.
Section 1111 Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on
the Notes until it receives notice of facts that would cause the payment of
principal of or interest on the Notes to violate this Article 10. Only the
Company or a representative or a holder of Senior Indebtedness may give the
notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have it if were not Trustee.
Section 1212 Authorization to Effect Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10, and
appoints the Trustee as attorney-in-fact for any and all purposes.
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Section 1313 Miscellaneous.
(a) All rights and interests under this Article
10 of the holders of Specified Senior Indebtedness and Senior Indebtedness, and
all agreements and obligations of the Holders, the Trustee and the Company
under this Article 10, shall remain in full force and effect irrespective of:
(i) any lack of validity or
enforceability of the Senior Credit Facility, the notes or security
instruments issued pursuant thereto or any other agreement or
instrument relating thereto;
(ii) any exchange, release or
non-perfection of any Lien securing Senior Indebtedness, or any sale
of or realization upon any property subject to such Lien, or any
release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the Senior Indebtedness;
(iii) any change in the manner, place or
terms of payment or extension of the time of payment of, or renewal or
alteration or increase of, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness
is outstanding;
(iv) any release of any Person liable in
any manner for the collection of Senior Indebtedness;
(v) any exercise or failure to exercise
any rights against the Company and any other Person; or
(vi) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the
Company in respect of Senior Indebtedness or the Trustee in respect of
this Indenture.
(b) The provisions of this Article 10 constitute
a continuing agreement and shall (i) remain in full force and effect until the
Senior Indebtedness shall
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have been paid in full in cash, (ii) be binding upon the holders and the
Trustee, the Company and their successors and assigns, and (iii) inure to the
benefit of and be enforceable by each other holder of Specified Senior
Indebtedness and Senior Indebtedness and their successors, transferees and
assigns.
ARTICLE XI
GUARANTEE OF SECURITIES
Section 101 Guarantee.
Subject to the provisions of this Article 11, each Guarantor
hereby guarantees, on a senior subordinated basis, to each Holder of a Note
authenticated and delivered by the Trustee (i) the due and punctual payment of
the principal of, premium, if any, and interest on such Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
of, and interest on, the Note, 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 of such Note and of this Indenture,
and (ii) in the case of any extension of time of payment or renewal of any
Notes 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, at stated maturity, by acceleration or otherwise. In case of the
failure of the Company punctually to make any such payment of principal or
interest, each Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, and as if such payment were made by the
Company.
Each Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of any such Note or this
Indenture, any failure to enforce the provisions of any such Note or this
Indenture, any waiver, modification or indulgence granted to the Company with
respect thereto, by the Holder of such Note or the Trustee, or any
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other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. Each Guarantor hereby waives diligence,
presentment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
the benefit of discussion, protest or notice with respect to any such Note or
the Indebtedness evidenced thereby and all demands whatsoever, and covenants
that the Guarantees will not be discharged as to any such Note except by
payment in full of the principal thereof and interest thereon and as provided
in Sections 8.01 and 11.03. Each Guarantor further agrees that, as between
such Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of the Guarantees,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (ii) in the
event of any declarations of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purpose of the
Guarantees. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6, the Trustee shall promptly
make a demand for payment on the Notes under each Guarantee provided for in
this Article 11 and not discharged.
The Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by the Guarantor pursuant to
the provisions of the Guarantee or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of and
interest on all Notes issued hereunder shall have been paid in full.
Section 202 Agreement to Subordinate.
Each Guarantor agrees, and each Noteholder by accepting a Note
agrees, that all payments pursuant to the Guarantee by such Guarantor are
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness of the Guarantors, to the same extent and manner that all payments
pursuant to the Notes are subor-
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dinated in right of payment to the prior payment in full of all Senior
Indebtedness of the Company. This Section 11.02 is intended to be for the
benefit of the holders of Senior Indebtedness of the Guarantors.
"Senior Indebtedness of the Guarantor" means, with respect to
any Guarantor, the principal of, premium, if any, and accrued and unpaid
interest on Indebtedness of the Guarantor, contingent or otherwise, in respect
of borrowed money or otherwise, whether outstanding on the date of the
Indenture 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 Guarantee.
Notwithstanding the foregoing, "Senior Indebtedness of the Guarantor" shall not
include (i) Indebtedness that is expressly subordinate or junior in right of
payment to any Indebtedness of such Guarantor, (ii) any liability for federal,
state, local or other taxes owed or owing by such Guarantor, (iii) Indebtedness
of or amounts owed by such Guarantor for compensation to employees and for
services, (iv) Indebtedness of such Guarantor to a Subsidiary of the Company or
any other Affiliate of the Company or any of such Affiliate's subsidiaries, (v)
amounts owing under leases (other than Capital Lease Obligations) and (vi) any
Indebtedness which at the time of issuance is issued in violation of this
Indenture (but, as to any such Indebtedness, no such violation shall be deemed
to exist for purposes of this definition if the holder(s) of such obligation or
their representative or the Company shall have furnished to the Trustee an
opinion of independent legal counsel unqualified in all material respects,
addressed to the Trustee (which legal counsel may, as to matters of fact, rely
upon an officers' certificate of the Company) to the effect that the incurrence
of such Indebtedness does not violate the provisions of the Indenture).
Section 303 Release of Guarantor.
A Guarantor shall be released from all of its obligations
under its Guarantee if all or substantially all of its assets are sold or all
of its Capital Stock are sold, in each case in a transaction in compliance with
Section 4.09 hereof, or the Guarantor merges with or
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into or consolidates with, or transfers all or substantially all of its assets
to, the Company or another Guarantor in a transaction in compliance with
Article 5 hereof, and such Guarantor has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 404 Limitation on Guarantee.
Notwithstanding the other provisions of this Article 11, the
maximum liability of a Guarantor pursuant to its Guarantee shall in no event
exceed the Maximum Guaranteed Amount (as defined below).
The "Maximum Guaranteed Amount" with respect to a Guarantor
shall mean the greater of:
(i) the amount received by such
Guarantor in respect of all loans, advances or capital contributions
made to such Guarantor with proceeds from the Notes ("Note Proceeds");
all debts and/or equity securities of such Guarantor acquired, repaid,
redeemed or otherwise discharged with Note Proceeds; and the fair
market value of all property acquired with Note Proceeds and
transferred to such Guarantor; and
(ii) ninety-five percent (95%) of the
Adjusted Net Worth of such Guarantor as of the earlier of (A) the date
of the commencement of a case under Title 11 of the United States Code
in which such Guarantor is a debtor or (B) the date enforcement
hereunder is sought (the "Guarantee Date").
The "Adjusted Net Worth" of a Guarantor as of the Guarantee
Date shall mean the excess of (a) the amount of the fair saleable value of the
assets of such Guarantor as of such date determined in accordance with
applicable Federal and state laws governing determinations of the insolvency of
debtors over (b) the amount of all liabilities of such Guarantor, contingent or
otherwise, as of the Guarantee Date, determined on the basis provided in clause
(a) above (excluding all liabilities under the Guarantees).
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Section 505 Successors.
The Guarantee shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Holders and, in the event of any transfer or assignment of
rights by any Holder, the rights and privileges herein conferred upon the party
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
ARTICLE XII
MISCELLANEOUS
Section 101 Trust Indenture Act 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 202 Notices.
Any notice or communication shall be given in writing and
delivered in person or by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
if to the Company or any Guarantor:
c/o NewCity Communications, Inc.
10 Middle Street
Bridgeport, Connecticut 06604-4277
Attention: President
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if to the Trustee:
Shawmut Bank Connecticut,
National Association
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Administration
Any notice or communication to the Company, any Guarantor or
the Trustee shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five calendar days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee and
except that a mailed notice to the Trustee shall not be deemed to have been
given until actually received by the Trustee).
The Company, the Guarantors or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed by first-class mail or other equivalent means to his address shown on
the register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it. If the
Company or any Guarantor mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee and each agent at the same time.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
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Section 303 Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 404 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05) stating that,
in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 12.05) stating that,
in the opinion of such counsel, all such conditions
precedent have been complied with.
Setion 505 Statements Required in Certificate or Opinion.
Each Officers' Certificate and Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(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;
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(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is
necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such covenant or condition has been
complied with;
provided, however, that with respect to matters of law, an Officers'
Certificate may be based upon an Opinion of Counsel, unless the signers know
that such Opinion of Counsel is erroneous, and provided, further, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials, unless the signer knows that
any such document is erroneous.
Section 606 When Treasury Notes Disregarded.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, any Guarantor or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company, such Guarantor or such obligor shall
be disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trustee knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to the Notes and that the pledgee is not the Company, a
Guarantor or any other obligor upon the Notes or any person directly or
indirectly controlling or controlled by or under direct common control with the
Company, such Guarantor or such obligor.
Section 707 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders. The Registrar
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or Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
Section 808 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or
a day on which banking institutions are not required to be open in either the
State of New York or the State of Connecticut. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
Section 909 Governing Law.
The laws of the State of New York shall govern this Indenture
and the Notes and Guarantees, without regard to conflicts of laws and rules
thereof.
Section 1010 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Secton 1111 No Recourse against Others.
No stockholder, officer, director or incorporator, as such,
past, present or future, of the Company or any Guarantor shall have any
personal liability under the Notes or the Guarantee by reason of his or its
status as such stockholder, officer, director or incorporator. Each Noteholder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes and the
Guarantee.
Section 1212 Successors.
All agreements of the Company or a Guarantor in this
Indenture, the Notes and the Guarantee shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
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Section 1313 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
Section 1414 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 1515 Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SIGNATURES
NEWCITY COMMUNICATIONS, INC.
as Issuer
(SEAL) By:/s/ John Riccardi
------------------------------------------
Title: VP-CFO
Attest:
/s/ James T. Morley
- ----------------------------
NEWCITY BROADCASTING COMPANY, INC.
NEWCITY COMMUNICATIONS OF ALABAMA, INC.
NEWCITY COMMUNICATIONS OF ATLANTA, INC.
NEWCITY COMMUNICATIONS OF CONNECTICUT, INC.
NEWCITY COMMUNICATIONS OF DAYTONA, INC.
NEWCITY COMMUNICATIONS OF FLORIDA, INC.
NEWCITY COMMUNICATIONS OF FULTON, INC.
NEWCITY COMMUNICATIONS OF MASSACHUSETTS,INC.
NEWCITY COMMUNICATIONS OF SAN ANTONIO, INC.
NEWCITY COMMUNICATIONS OF SYRACUSE, INC.
NEWCITY COMMUNICATIONS OF TULSA, INC.
BIRMINGHAM COMMUNICATIONS,INC.
NEWCITY TULSA TOWER, INC.
as Guarantors
By:/s/ John Riccardi
------------------------------------------
Title: Treasurer VP-CFO
Attest:
/s/ James T. Morley
- ----------------------------
AMERICAN COMEDY NETWORK, INC.
COMMERCIALWORKS, INC.
PARKCITY PRODUCTIONS, INC.
as Guarantors
By:/s/ John Riccardi
------------------------------------------
Title: VP-CFO
Treasurer
Attest:
/s/ James T. Morley
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SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION
as Trustee
(SEAL) By:/s/ E.C. Hammer
------------------------------------------
Title: Vice President
Attest:
/s/ Michelle K. Belzard
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