SINCLAIR BROADCAST GROUP, INC., as Issuer,
CHESAPEAKE TELEVISION, INC.,
CHESAPEAKE TELEVISION LICENSEE, INC.,
FSF-TV, INC.,
KABB LICENSEE, INC.,
KDNL LICENSEE, INC.,
KSMO, INC.,
KSMO LICENSEE, INC.,
KUPN LICENSEE, INC.,
SCI-INDIANA LICENSEE, INC.,
SCI-SACRAMENTO LICENSEE, INC.,
SINCLAIR COMMUNICATIONS, INC.,
SINCLAIR RADIO OF ALBUQUERQUE, INC.,
SINCLAIR RADIO OF ALBUQUERQUE LICENSEE, INC..
SINCLAIR RADIO OF BUFFALO, INC.,
SINCLAIR RADIO OF BUFFALO LICENSEE, INC.,
SINCLAIR RADIO OF GREENVILLE, INC.,
SINCLAIR RADIO OF GREENVILLE LICENSEE, INC.,
SINCLAIR RADIO OF LOS ANGELES, INC.,
SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC.,
SINCLAIR RADIO OF MEMPHIS, INC.,
SINCLAIR RADIO OF MEMPHIS LICENSEE, INC.,
SINCLAIR RADIO OF NASHVILLE, INC.,
SINCLAIR RADIO OF NASHVILLE LICENSEE, INC.,
SINCLAIR RADIO OF NEW ORLEANS, INC.,
SINCLAIR RADIO OF NEW ORLEANS LICENSEE, INC.,
SINCLAIR RADIO OF ST. LOUIS, INC.,
SINCLAIR RADIO OF ST. LOUIS LICENSEE, INC.,
SINCLAIR RADIO OF WILKES-BARRE, INC.,
SINCLAIR RADIO OF WILKES-BARRE LICENSEE, INC.,
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.,
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.,
SUPERIOR KY LICENSE CORP.,
SUPERIOR OK LICENSE CORP.,
TUSCALOOSA BROADCASTING INC.,
WCGV, INC.,
WCGV LICENSEE, INC.,
WDBB, INC.,
WLFL, INC.,
WLFL LICENSEE, INC.,
WLOS LICENSEE, INC.,
WPGH, INC.
WPGH LICENSEE, INC.,
WSMH, INC,
WSMH LICENSEE, INC.,
WSTR, INC.,
WSTR LICENSEE, INC.,
WSYX, INC.,
WTTE, CHANNEL 28, INC,
WTTE, CHANNEL 28 LICENSEE, INC,
WTTO, INC.,
WTTO LICENSEE, INC.,
WTVZ, INC.,
WTVZ LICENSEE. INC.,
WYZZ, INC.,
and
WYZZ LICENSEE, INC.,
as Guarantors
and
FIRST UNION NATIONAL BANK OF MARYLAND, as Trustee
INDENTURE
Dated as of July 2, 1997
$200,000,000
9% Senior Subordinated Notes due 2007
TABLE OF CONTENTS
PAGE
----
PARTIES................................................................... 1
RECITALS.................................................................. 2
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....... 3
Section 101. Definitions.................................................. 3
"Accredited Investor"................................................ 3
"Acquired Indebtedness".............................................. 3
"Affiliate".......................................................... 3
"Asset Sale"......................................................... 4
"Agent Member"....................................................... 4
"Asset Swap"......................................................... 4
"Average Life to Stated Maturity".................................... 4
"Bank Credit Agreement".............................................. 4
"Bankruptcy Law"..................................................... 5
"Board of Directors"................................................ 5
"Board Resolution"................................................... 5
"Business Day"....................................................... 5
"Capital Lease Obligation"........................................... 5
"Cash Equivalents"................................................... 5
"Change of Control".................................................. 6
"Code"............................................................... 7
"Commission"......................................................... 7
"Company"............................................................ 7
"Company Request or Company Order"................................... 7
"Consolidated Interest Expense"...................................... 7
"Consolidated Net Income (Loss)"..................................... 7
"Consolidated Net Worth"............................................. 8
"Consolidation"...................................................... 8
"Corporate Trust Office"............................................. 8
"Cumulative Consolidated Interest Expense"........................... 8
"Cumulative Operating Cash Flow"..................................... 8
"Debt to Operating Cash Flow Ratio".................................. 9
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"Default"............................................................ 9
"Depositary"......................................................... 9
"Designated Guarantor Senior Indebtedness"........................... 9
"Designated Senior Indebtedness"..................................... 10
"Disqualified Equity Interests"...................................... 10
"Equity Interest".................................................... 10
"Event of Default"................................................... 10
"Exchange Act"....................................................... 10
"Exchange Offer"..................................................... 10
"Exchange Offer Registration Statement".............................. 10
"Fair Market Value".................................................. 10
"Film Contract"...................................................... 11
"Founders' Notes".................................................... 11
"Generally Accepted Accounting Principles" or "GAAP"................. 11
"Global Security".................................................... 11
"Guarantee".......................................................... 11
"Guaranteed Debt".................................................... 11
"Guarantor".......................................................... 11
"Guarantor Senior Indebtedness"...................................... 12
"Holder"............................................................. 12
"Indebtedness"....................................................... 12
"Indenture Obligations".............................................. 14
"Independent Director"............................................... 14
"Initial Purchasers"................................................. 14
"Initial Securities"................................................. 14
"Interest Payment Date".............................................. 14
"Interest Rate Agreements"........................................... 14
"Investments"........................................................ 14
"Issue Date"......................................................... 14
"Lien"............................................................... 14
"Local Marketing Agreement".......................................... 15
"Maturity"........................................................... 15
"Minority Note"...................................................... 15
"Moody's"............................................................ 15
"Net Cash Proceeds".................................................. 15
"Non-payment Default"................................................ 16
"Officers' Certificate".............................................. 16
"Operating Cash Flow"................................................ 16
"Opinion of Counsel"................................................. 17
"Opinion of Independent Counsel"..................................... 17
"Outstanding"........................................................ 17
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"Pari Passu Indebtedness"............................................ 18
"Paying Agent"....................................................... 18
"Payment Default".................................................... 18
"Permitted Guarantor Junior Securities".............................. 18
"Permitted Holders".................................................. 18
"Permitted Indebtedness"............................................. 18
"Permitted Investment"............................................... 18
"Permitted Junior Securities"........................................ 19
"Permitted Subsidiary Indebtedness".................................. 19
"Person"............................................................. 20
"Predecessor Security"............................................... 20
"Preferred Equity Interest".......................................... 20
"Prospectus"......................................................... 20
"Public Equity Offering"............................................. 20
"Qualified Equity Interests"......................................... 20
"Redemption Date".................................................... 20
"Redemption Price"................................................... 20
"Registration Rights Agreement"...................................... 20
"Registration Statement"............................................. 21
"Regular Record Date"................................................ 21
"Responsible Officer"................................................ 21
"Restricted Payment"................................................. 21
"Restricted Securities Legend"....................................... 21
"Restricted Securities Transfer Certificate"......................... 21
"Restricted Security"................................................ 21
"Restricted Subsidiary".............................................. 21
"Rule 144A Information".............................................. 21
"Sale and Leaseback Transaction"..................................... 21
"S&P"................................................................ 22
"Securities"......................................................... 22
"Securities Act"..................................................... 22
"Security Register" and "Security Registrar"......................... 22
"Senior Indebtedness"................................................ 22
"Series A Securities"................................................ 22
"Series B Securities"................................................ 23
"Shelf Registration Statement"....................................... 23
"Special Record Date"................................................ 23
"Stated Maturity".................................................... 23
"Subordinated Indebtedness".......................................... 23
"Subsidiary"......................................................... 23
"Successor Security"................................................. 23
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"Temporary Cash Investments"......................................... 23
"Trust Indenture Act"................................................ 24
"Trustee"............................................................ 24
"Unrestricted Subsidiary"............................................ 24
"Unrestricted Subsidiary Indebtedness"............................... 24
"Voting Stock"....................................................... 25
"Wholly Owned Restricted Subsidiary"................................. 25
Section 102. Other Definitions............................................ 25
Section 103. Compliance Certificates and Opinions......................... 26
Section 104. Form of Documents Delivered to Trustee....................... 27
Section 105. Acts of Holders.............................................. 27
Section 106. Notices, etc., to Trustee, the Company and any Guarantor..... 29
Section 107. Notice to Holders; Waiver.................................... 29
Section 108. Conflict with Trust Indenture Act............................ 30
Section 109. Effect of Headings and Table of Contents..................... 30
Section 110. Successors and Assigns....................................... 30
Section 111. Separability Clause.......................................... 30
Section 112. Benefits of Indenture........................................ 30
Section 113. Governing Law................................................ 30
Section 114. Legal Holidays............................................... 31
Section 115. Schedules and Exhibits....................................... 31
Section 116. Counterparts................................................. 31
ARTICLE TWO SECURITY FORMS................................................ 31
Section 201. Forms Generally.............................................. 31
Section 202. Form of Face of Security..................................... 32
Section 203. Form of Reverse of Securities................................ 40
Section 204. Additional Provisions Required in Global Security............ 48
Section 205. Form of Trustee's Certificate of Authentication.............. 49
Section 206. Form of Guarantee of Each of the Guarantors.................. 49
ARTICLE THREE THE SECURITIES.............................................. 53
Section 301. Title and Terms.............................................. 53
Section 302. Denominations................................................ 54
Section 303. Execution, Authentication, Delivery and Dating............... 54
Section 304. Temporary Securities......................................... 55
Section 305. Global Securities............................................ 55
Section 306. Registration, Registration of Transfer and Exchange.......... 57
Section 307. Special Transfer Provisions.................................. 59
Section 308. Mutilated, Destroyed, Lost and Stolen Securities............. 61
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Section 309. Payment of Interest; Interest Rights Preserved............... 62
Section 310. Persons Deemed Owners........................................ 63
Section 311. Cancellation................................................. 64
Section 312. Computation of Interest...................................... 64
Section 313. CUSIP Numbers................................................ 64
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE............................ 64
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance................................................. 64
Section 402. Defeasance and Discharge..................................... 65
Section 403. Covenant Defeasance.......................................... 65
Section 404. Conditions to Defeasance or Covenant Defeasance.............. 66
Section 405. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.............. 68
Section 406. Reinstatement................................................ 69
ARTICLE FIVE REMEDIES...................................................... 69
Section 501. Events of Default............................................ 69
Section 502. Acceleration of Maturity; Rescission and Annulment........... 72
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee ................................................... 73
Section 504. Trustee May File Proofs of Claim............................. 74
Section 505. Trustee May Enforce Claims without Possession of
Securities................................................. 75
Section 506. Application of Money Collected............................... 75
Section 507. Limitation on Suits.......................................... 76
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ...................................... 76
Section 509. Restoration of Rights and Remedies........................... 77
Section 510. Rights and Remedies Cumulative............................... 77
Section 511. Delay or Omission Not Waiver................................. 77
Section 512. Control by Holders........................................... 77
Section 513. Waiver of Past Defaults...................................... 78
Section 514. Undertaking for Costs........................................ 78
Section 515. Waiver of Stay, Extension or Usury Laws...................... 79
ARTICLE SIX THE TRUSTEE.................................................... 79
Section 601. Notice of Defaults........................................... 79
Section 602. Certain Rights of Trustee.................................... 79
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Section 603. Trustee Not Responsible for Recitals, Dispositions
of Securities or Application of Proceeds Thereof........... 81
Section 604. Trustee and Agents May Hold Securities; Collections;
etc........................................................ 81
Section 605. Money Held in Trust.......................................... 81
Section 606. Compensation and Indemnification of Trustee and Its
Prior Claim ............................................... 82
Section 607. Conflicting Interests........................................ 83
Section 608. Corporate Trustee Required; Eligibility...................... 83
Section 609. Resignation and Removal; Appointment of Successor
Trustee.................................................... 83
Section 610. Acceptance of Appointment by Successor....................... 85
Section 611. Merger, Conversion, Consolidation or Succession to
Business................................................... 85
Section 612. Preferential Collection of Claims Against Company............ 86
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............ 86
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.................................................... 86
Section 702. Disclosure of Names and Addresses of Holders................. 87
Section 703. Reports by Trustee........................................... 87
Section 704. Reports by Company and Guarantors............................ 87
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE......... 88
Section 801. Company or Any Guarantor May Consolidate, etc.; Only
on Certain Terms .......................................... 88
Section 802. Successor Substituted........................................ 90
ARTICLE NINE SUPPLEMENTAL INDENTURES....................................... 91
Section 901. Supplemental Indentures and Agreements without Consent
of Holders ................................................ 91
Section 902. Supplemental Indentures and Agreements with Consent
of Holders ................................................ 92
Section 903. Execution of Supplemental Indentures and Agreements.......... 93
Section 904. Effect of Supplemental Indentures............................ 94
Section 905. Conformity with Trust Indenture Act.......................... 94
Section 906. Reference in Securities to Supplemental Indentures........... 94
Section 907. Effect on Senior Indebtedness................................ 94
ARTICLE TEN COVENANTS...................................................... 94
Section 1001. Payment of Principal, Premium and Interest................... 94
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Section 1002. Maintenance of Office or Agency.............................. 95
Section 1003. Money for Security Payments to Be Held in Trust.............. 95
Section 1004. Corporate Existence.......................................... 97
Section 1005. Payment of Taxes and Other Claims............................ 97
Section 1006. Maintenance of Properties.................................... 98
Section 1007. Insurance.................................................... 98
Section 1008. Limitation on Indebtedness................................... 98
Section 1009. Limitation on Restricted Payments............................ 100
Section 1010. Limitation on Transactions with Affiliates................... 102
Section 1011. Limitation on Senior Subordinated Indebtedness............... 103
Section 1012. Limitation on Liens.......................................... 103
Section 1013. Limitation on Sale of Assets................................. 105
Section 1014. Limitation on Issuances of Guarantees of and Pledges
for Indebtedness .......................................... 109
Section 1015. Restriction on Transfer of Assets............................ 110
Section 1016. Purchase of Securities upon a Change of Control.............. 111
Section 1017. Limitation on Subsidiary Equity Interests.................... 114
Section 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries .................................... 115
Section 1019. Limitation on Unrestricted Subsidiaries...................... 115
Section 1020. Provision of Financial Statements............................ 116
Section 1021. Statement by Officers as to Default.......................... 116
Section 1022. Waiver of Certain Covenants.................................. 117
ARTICLE ELEVEN REDEMPTION OF SECURITIES.................................... 117
Section 1101. Rights of Redemption......................................... 117
Section 1102. Applicability of Article..................................... 117
Section 1103. Election to Redeem; Notice to Trustee........................ 117
Section 1104. Selection by Trustee of Securities to Be Redeemed............ 118
Section 1105. Notice of Redemption......................................... 118
Section 1106. Deposit of Redemption Price.................................. 119
Section 1107. Securities Payable on Redemption Date........................ 119
Section 1108. Securities Redeemed or Purchased in Part..................... 120
ARTICLE TWELVE SUBORDINATION OF SECURITIES................................. 120
Section 1201. Securities Subordinate to Senior Indebtedness................ 120
Section 1202. Payment Over of Proceeds Upon Dissolution, etc............... 121
Section 1203. Suspension of Payment When Senior Indebtedness in
Default.................................................... 122
Section 1204. Payment Permitted if No Default.............................. 123
Section 1205. Subrogation to Rights of Holders of Senior
Indebtedness............................................... 124
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Section 1206. Provisions Solely to Define Relative Rights.................. 124
Section 1207. Trustee to Effectuate Subordination.......................... 125
Section 1208. No Waiver of Subordination Provisions........................ 125
Section 1209. Notice to Trustee............................................ 126
Section 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent ......................................... 127
Section 1211. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights........................... 127
Section 1212. Article Applicable to Paying Agents.......................... 127
Section 1213. No Suspension of Remedies.................................... 127
Section 1214. Trustee's Relation to Senior Indebtedness.................... 128
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE................................ 128
Section 1301. Satisfaction and Discharge of Indenture...................... 128
Section 1302. Application of Trust Money.................................. 129
ARTICLE FOURTEEN GUARANTEE................................................ 130
Section 1401. Guarantor's Guarantee....................................... 130
Section 1402. Continuing Guarantee; No Right of Set-Off; Independent
Obligation ............................................... 130
Section 1403. Guarantee Absolute.......................................... 131
Section 1404. Right to Demand Full Performance............................ 134
Section 1405. Waivers..................................................... 134
Section 1406. The Guarantors Remain Obligated in Event the Company Is
No Longer Obligated to Discharge Indenture Obligations.... 135
Section 1407. Fraudulent Conveyance; Subrogation.......................... 135
Section 1408. Guarantee Is in Addition to Other Security.................. 135
Section 1409. Release of Security Interests............................... 136
Section 1410. No Bar to Further Actions................................... 136
Section 1411. Failure to Exercise Rights Shall Not Operate as a Waiver;
No Suspension of Remedies................................. 136
Section 1412. Trustee's Duties; Notice to Trustee......................... 137
Section 1413. Successors and Assigns...................................... 137
Section 1414. Release of Guarantee........................................ 137
Section 1415. Execution of Guarantee...................................... 138
Section 1416. Guarantee Subordinate to Guarantor Senior Indebtedness...... 138
Section 1417. Payment Over of Proceeds Upon Dissolution of the
Guarantor, etc. .......................................... 138
Section 1418. Default on Guarantor Senior Indebtedness.................... 140
Section 1419. Payment Permitted by Each of the Guarantors if No
Default................................................... 140
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Section 1420. Subrogation to Rights of Holders of Guarantor
Senior Indebtedness ...................................... 141
Section 1421. Provisions Solely to Define Relative Rights................. 141
Section 1422. Trustee to Effectuate Subordination......................... 142
Section 1423. No Waiver of Subordination Provisions....................... 142
Section 1424. Notice to Trustee by Each of the Guarantors................. 143
Section 1425. Reliance on Judicial Order or Certificate of
Liquidating Agent ........................................ 144
Section 1426. Rights of Trustee as a Holder of Guarantor
Senior Indebtedness; Preservation of Trustee's Rights..... 144
Section 1427. Article Applicable to Paying Agents......................... 144
Section 1428. No Suspension of Remedies................................... 144
Section 1429. Trustee's Relation to Guarantor Senior Indebtedness......... 145
TESTIMONIUM............................................................... 147
SIGNATURES AND SEALS...................................................... 148
ACKNOWLEDGMENTS
SCHEDULE I Existing Indebtedness of Sinclair Broadcast Group,
Inc. and its Restricted Subsidiaries
SCHEDULE II Existing Liens
SCHEDULE III Existing Encumbrances and Restrictions
EXHIBIT A Form of Restricted Securities Transfer Certificate
EXHIBIT B Form of Intercompany Note
-ix-
INDENTURE, dated as of July 2, 1997, among SINCLAIR BROADCAST
GROUP, INC., a Maryland corporation (the "Company"), CHESAPEAKE TELEVISION,
INC., a Maryland corporation, CHESAPEAKE TELEVISION LICENSEE, INC., a Delaware
corporation, FSF-TV, INC., a North Carolina corporation, KABB LICENSEE, INC., a
Delaware corporation, KDNL LICENSEE, INC., a Delaware corporation, KSMO, INC., a
Maryland corporation, KSMO LICENSEE, INC., a Delaware corporation, KUPN
LICENSEE, INC., a Maryland corporation, SCI-INDIANA LICENSEE, INC., a Delaware
corporation, SCI- SACRAMENTO LICENSEE, INC., a Delaware corporation, SINCLAIR
COMMUNICATIONS, INC., a Maryland corporation, SINCLAIR RADIO OF ALBUQUERQUE,
INC., a Maryland corporation, SINCLAIR RADIO OF ALBUQUERQUE LICENSEE, INC., a
Delaware corporation, SINCLAIR RADIO OF BUFFALO, INC., a Maryland corporation,
SINCLAIR RADIO OF BUFFALO LICENSEE, INC., a Delaware corporation, SINCLAIR RADIO
OF GREENVILLE, INC., a Maryland corporation, SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC., a Delaware corporation, SINCLAIR RADIO OF LOS ANGELES, INC., a
Maryland corporation, SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC., a Delaware
corporation, SINCLAIR RADIO OF MEMPHIS, INC., a Maryland corporation, SINCLAIR
RADIO OF MEMPHIS LICENSEE, INC., a Delaware corporation, SINCLAIR RADIO OF
NASHVILLE, INC., a Maryland corporation, SINCLAIR RADIO OF NASHVILLE LICENSEE,
INC., a Delaware corporation, SINCLAIR RADIO OF NEW ORLEANS, INC., a Maryland
corporation, SINCLAIR RADIO OF NEW ORLEANS LICENSEE, INC., a Delaware
corporation, SINCLAIR RADIO OF ST. LOUIS, INC., a Maryland corporation, SINCLAIR
RADIO OF ST. LOUIS LICENSEE, INC., a Delaware corporation, SINCLAIR RADIO OF
WILKES-BARRE, INC., a Maryland corporation, SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC., a Delaware corporation, SUPERIOR COMMUNICATIONS OF KENTUCKY,
INC., a Delaware corporation, SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC., an
Oklahoma corporation, SUPERIOR KY LICENSE CORP., a Delaware corporation,
SUPERIOR OK LICENSE CORP., a Delaware corporation, TUSCALOOSA BROADCASTING INC.,
a Maryland corporation, WCGV, INC., a Maryland corporation, WCGV LICENSEE, INC.,
a Delaware corporation, WDBB, INC., a Maryland corporation, WLFL, INC., a
Maryland corporation, WLFL LICENSEE, INC., a Delaware corporation, WLOS
LICENSEE, INC., a Delaware corporation, WPGH, INC., a Maryland corporation, WPGH
LICENSEE, INC., a Maryland corporation, WSMH, INC., a Maryland corporation, WSMH
LICENSEE, INC., a Delaware corporation, WSTR, INC., a Maryland corporation, WSTR
LICENSEE, INC., a Maryland corporation, WSYX, INC., a Maryland corporation,
WTTE, CHANNEL 28, INC., a Maryland corporation, WTTE, CHANNEL 28 LICENSEE, INC.,
a Maryland corporation, WTTO, INC., a Maryland corporation, WTTO LICENSEE, INC.,
a Delaware corporation, WTVZ, INC., a Maryland corporation, WTVZ LICENSEE, INC.,
a Maryland corporation, WYZZ, INC., a Maryland Corporation, and WYZZ LICENSEE,
INC., a Delaware corporation (collectively, the "Guarantors"), and FIRST UNION
NATIONAL BANK OF MARYLAND, a national banking association organized under the
laws of the United States of America, as trustee (the "Trustee").
RECITALS OF THE COMPANY
-1-
The Company has duly authorized the creation of an issue of 9%
Senior Subordinated Notes due 2007, Series A (the "Initial Securities" or the
"Series A Securities"), and an issue of 9% Senior Subordinated Notes due 2007,
Series B (the "Series B Securities" and, together with the Series A Securities,
the "Securities") of substantially the tenor and amount hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture and the Securities.
Each Guarantor has duly authorized the issuance of a guarantee
(the "Guarantees") of the Securities, of substantially the tenor hereinafter set
forth, and to provide therefor, each Guarantor has duly authorized the execution
and delivery of this Indenture and the Guarantee.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
(ii) the Guarantees, when executed by each of the Guarantors and delivered
hereunder, the valid obligation of each of the Guarantors and (iii) this
Indenture a valid agreement of the Company and each of the Guarantors in
accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
-2-
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America.
"Accredited Investor" means an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any other
Person that owns, directly or indirectly, 5% or more of such Person's Equity
Interest or any officer or director of any such Person or other Person or, with
respect to any natural Person, any Person having a relationship with such Person
or other Person by blood, marriage or adoption not more remote than first cousin
or (iii) any other Person 10% or more of the voting Equity Interests of which
are beneficially owned or held directly or indirectly by such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Equity Interest of any Restricted Subsidiary; (ii) all or substantially all of
the properties and assets of any division or line of business of the Company or
its Restricted Subsidiaries; or (iii) any other properties or assets of the
Company or any Restricted Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any transfer of properties and assets (A) that is
-3-
governed by Section 801(a), (B) that is by the Company to any Wholly Owned
Restricted Subsidiary, or by any Restricted Subsidiary to the Company or any
Wholly Owned Restricted Subsidiary in accordance with the terms of this
Indenture or (C) that aggregates not more than $1,000,000 in gross proceeds.
"Agent Member" means any member of, or participant in, the
Depositary.
"Asset Swap" means an Asset Sale by the Company or any
Restricted Subsidiary in exchange for properties or assets that will be used in
the business of the Company and its Restricted Subsidiaries existing on the date
of this Indenture or reasonably related thereto.
"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.
"Bank Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of May 20, 1997, between the Company, the subsidiaries of
the Company identified on the signature pages thereof under the caption
"SUBSIDIARY GUARANTORS," the lenders named therein and The Chase Manhattan Bank,
as agent, as such agreement may be amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified from time
to time (including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing). For all purposes under this Indenture,
"Bank Credit Agreement" shall include any amendments, renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplements or any
other modifications that increase the principal amount of the Indebtedness or
the commitments to lend thereunder and have been made in compliance with Section
1008; provided that, for purposes of the definition of "Permitted Indebtedness,"
no such increase may result in the principal amount of Indebtedness of the
Company under the Bank Credit Agreement exceeding the amount permitted by
Section 1008(b)(i).
"Bankruptcy Law" means Title 11, United States Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
-4-
"Board of Directors" means the board of directors of the
Company or any Guarantor, as the case may be, or any duly authorized committee
of such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or any Guarantor, as the
case may be, to have been duly adopted by the Board of Directors of such entity
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, the State of Maryland or the city in which the Corporate Trust Office is
located are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means any obligation of the Company
and its Restricted Subsidiaries on a Consolidated basis under any capital lease
of real or personal property which, in accordance with GAAP, has been recorded
as a capitalized lease obligation.
"Cash Equivalents" means, (i) any evidence of Indebtedness
with a maturity of one year or less from the date of acquisition issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof); (ii) certificates
of deposit or acceptances with a maturity of one year or less from the date of
acquisition of any financial institution that is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not less
than $500,000,000; (iii) commercial paper with a maturity of one year or less
from the date of acquisition issued by a corporation that is not an Affiliate of
the Company organized under the laws of any state of the United States or the
District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or
higher) according to Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital
and surplus in excess of $500,000,000; and (v) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial ownership
of all shares that such Person has the right to acquire, whether such right is
-5-
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 40% of the total outstanding Voting Stock of the
Company, provided that the Permitted Holders "beneficially own" (as so defined)
a lesser percentage of such Voting Stock than such other Person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any
new directors whose election to such Board or whose nomination for election by
the shareholders of the Company, was approved by a vote of 66-2/3% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of such Board of
Directors then in office; (iii) the Company consolidates with or merges with or
into any Person or conveys, transfers or leases all or substantially all of its
assets to any Person, or any corporation consolidates with or merges into or
with the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction where the
outstanding Voting Stock of the Company is not changed or exchanged at all
(except to the extent necessary to reflect a change in the jurisdiction of
incorporation of the Company) or where (A) the outstanding Voting Stock of the
Company is changed into or exchanged for (x) Voting Stock of the surviving
corporation which is not Disqualified Equity Interests or (y) cash, securities
and other property (other than Equity Interests of the surviving corporation) in
an amount which could be paid by the Company as a Restricted Payment in
accordance with Section 1009 (and such amount shall be treated as a Restricted
Payment subject to the provisions described under Section 1009) and (B) no
"person" or "group" other than Permitted Holders owns immediately after such
transaction, directly or indirectly, more than the greater of (1) 40% of the
total outstanding Voting Stock of the surviving corporation and (2) the
percentage of the outstanding Voting Stock of the surviving corporation owned,
directly or indirectly, by Permitted Holders immediately after such transaction;
or (iv) the Company is liquidated or dissolved or adopts a plan of liquidation
or dissolution other than in a transaction which complies with the provisions
described under Article Eight.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means Sinclair Broadcast Group, Inc., a corporation
incorporated under the laws of Maryland, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
-6-
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its Vice Chairman, its President or a Vice President (regardless of vice
presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
- - "Consolidated Interest Expense" means, without duplication, for any period,
the sum of (a) the interest expense of the Company and its Consolidated
Restricted Subsidiaries for such period, on a Consolidated basis, including,
without limitation, (i) amortization of debt discount, (ii) the net cost under
interest rate contracts (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation and (iv) accrued interest,
plus (b) the interest component of the Capital Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Company during such period, and
all capitalized interest of the Company and its Consolidated Restricted
Subsidiaries, in each case as determined in accordance with GAAP consistently
applied.
"Consolidated Net Income (Loss)" means, for any period, the
Consolidated net income (or loss) of the Company and its Consolidated Restricted
Subsidiaries for such period as determined in accordance with GAAP consistently
applied, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) all extraordinary gains but not
losses (less all fees and expenses relating thereto), (ii) the portion of net
income (or loss) of the Company and its Consolidated Restricted Subsidiaries
allocable to interests in unconsolidated Persons or Unrestricted Subsidiaries,
except to the extent of the amount of dividends or distributions actually paid
to the Company or its Consolidated Restricted Subsidiaries by such other Person
during such period, (iii) net income (or loss) of any Person combined with the
Company or any of its Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (iv) any gain or
loss, net of taxes, realized upon the termination of any employee pension
benefit plan, (v) net gains but not losses (less all fees and expenses relating
thereto) in respect of dispositions of assets other than in the ordinary course
of business, or (vi) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its shareholders.
"Consolidated Net Worth" means the Consolidated equity of the
holders of Equity Interests (excluding Disqualified Equity Interests) of the
Company and its Restricted Subsidiaries, as determined in accordance with GAAP
consistently applied.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries (other
than any Unrestricted Subsidiaries) if and to the extent the accounts of such
Person and each of its subsidiaries (other than any Unrestricted Subsidiaries)
would normally be consolidated with those of such Person, all in
-7-
accordance with GAAP consistently applied. The term "Consolidated" shall have a
similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at First
Union National Bank of Maryland, 901 East Cary Street, 2nd Floor, Richmond,
Virginia 23219, Attention: Patricia Welling.
"Cumulative Consolidated Interest Expense" means, as of any
date of determination, Consolidated Interest Expense from September 30, 1993 to
the end of the Company's most recently ended full fiscal quarter prior to such
date, taken as a single accounting period.
"Cumulative Operating Cash Flow" means, as of any date of
determination, Operating Cash Flow from September 30, 1993 to the end of the
Company's most recently ended full fiscal quarter prior to such date, taken as a
single accounting period.
"Debt to Operating Cash Flow Ratio" means, as of any date of
determination, the ratio of (a) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Restricted Subsidiaries as of
such date on a Consolidated basis plus the aggregate liquidation preference or
redemption amount of all Disqualified Equity Interests of the Company (excluding
any such Disqualified Equity Interests held by the Company or a Wholly Owned
Restricted Subsidiary of the Company), to (b) Operating Cash Flow of the Company
and its Restricted Subsidiaries on a Consolidated basis for the four most recent
full fiscal quarters ending immediately prior to such date, determined on a pro
forma basis (and after giving pro forma effect to (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness was incurred,
and the application of such proceeds occurred, at the beginning of such
four-quarter period; (ii) the incurrence, repayment or retirement of any other
Indebtedness by the Company and its Restricted Subsidiaries since the first day
of such four-quarter period as if such Indebtedness was incurred, repaid or
retired at the beginning of such four-quarter period (except that, in making
such computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average balance of such Indebtedness at the end
of each month during such four-quarter period); (iii) in the case of Acquired
Indebtedness, the related acquisition, as if such acquisition had occurred at
the beginning of such four-quarter period; and (iv) any acquisition or
disposition by the Company and its Restricted Subsidiaries of any company or any
business or any assets out of the ordinary course of business, or any related
repayment of Indebtedness, in each case since the first day of such four-quarter
period, assuming such acquisition or disposition had been consummated on the
first day of such four-quarter period).
-8-
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in
the form of Global Securities, if any, The Depository Trust Company, a New York
limited purpose corporation, its nominees and successors, or any other Person
designated as the Depositary by the Company pursuant to Section 305(b), in each
case registered as a "clearing agency" under the Exchange Act and maintaining a
book-entry system that qualifies for treatment as "registered form" under
Section 163(f) of the Code.
"Designated Guarantor Senior Indebtedness" means (i) all
Guarantor Senior Indebtedness which guarantees Indebtedness under the Bank
Credit Agreement and (ii) any other Guarantor Senior Indebtedness which is
incurred pursuant to an agreement (or series of related agreements)
simultaneously entered into providing for indebtedness, or commitments to lend,
of at least $25,000,000 at the time of determination and is specifically
designated in the instrument evidencing such Guarantor Senior Indebtedness or
the agreement under which such Senior Indebtedness arises as "Designated
Guarantor Senior Indebtedness" by the Guarantor which is the obligor under the
Guarantor Senior Indebtedness.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness outstanding under the Bank Credit Agreement and (ii) any other
Senior Indebtedness which is incurred pursuant to an agreement (or series of
related agreements) simultaneously entered into providing for indebtedness, or
commitments to lend, of at least $25,000,000 at the time of determination and is
specifically designated in the instrument evidencing such Senior Indebtedness or
the agreement under which such Senior Indebtedness arises as "Designated Senior
Indebtedness" by the Company.
"Disqualified Equity Interests" means any Equity Interests
that, either by their terms or by the terms of any security into which they are
convertible or exchangeable or otherwise, are or upon the happening of an event
or passage of time would be required to be redeemed prior to any Stated Maturity
of the principal of the Securities or are redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or are convertible into
or exchangeable for debt securities at any time prior to any such Stated
Maturity at the option of the holder thereof.
"Equity Interest" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, of such Person, including any Preferred Equity Interests.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
-9-
"Exchange Offer" means the exchange offer by the Company of
Series B Securities for Series A Securities to be effected pursuant to Section
2(a) of the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2(a) of the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"Film Contract" means contracts with suppliers that convey the
right to broadcast specified films, videotape motion pictures, syndicated
television programs or sports or other programming.
"Founders' Notes" means the term notes, dated September 30,
1990, made by the Company to Julian S. Smith and to Carolyn C. Smith pursuant to
a stock redemption agreement, dated June 19, 1990, among the Company, certain of
its Subsidiaries, Julian S. Smith, Carolyn C. Smith, David D. Smith, Frederick
G. Smith, J. Duncan Smith and Robert E. Smith.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect on the date of this Indenture.
"Global Security" means a Security in book-entry form in the
form prescribed in Sections 202 through 205 evidencing all or part of the
Securities, issued to the Depositary or its nominee and registered in the name
of the Depositary or such nominee.
"Guarantee" means the guarantee by any Guarantor of the
Company's Indenture Obligations pursuant to a guarantee given in accordance with
this Indenture, including, without limitation, the Guarantees by the Guarantors
included in Article Fourteen of this Indenture and any Guarantee delivered
pursuant to Section 1014.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness contained in this Section guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (ii)
to purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss,
(iii) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services without requiring that
such property be received or such services be rendered), (iv) to maintain
working capital or equity capital of the
-10-
debtor, or otherwise to maintain the net worth, solvency or other financial
condition of the debtor or (v) otherwise to assure a creditor against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Guarantor" means the Subsidiaries listed as guarantors in
this Indenture or any other guarantor of the Indenture Obligations. On the date
hereof, the Guarantors consist of all of the Company's Subsidiaries other than
Cresap Enterprises, Inc., KDSM, Inc., KDSM Licensee, Inc. and Sinclair Capital.
"Guarantor Senior Indebtedness" is defined as the principal
of, premium, if any, and interest (including interest accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy laws whether or not allowable as a claim in such proceeding) on any
Indebtedness of any Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, and whether at any time owing, actually or
contingent, 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 any Guarantee. Without limiting the generality of the foregoing,
"Guarantor Senior Indebtedness" shall include (i) the principal of, premium, if
any, and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law
whether or not allowable as a claim in such proceeding) and all other
obligations of every nature of any Guarantor from time to time owed to the
lenders (or their agent) under the Bank Credit Agreement; provided, however,
that any Indebtedness under any refinancing, refunding or replacement of the
Bank Credit Agreement shall not constitute Guarantor Senior Indebtedness to the
extent that the Indebtedness thereunder is by its express terms subordinate to
any other Indebtedness of any Guarantor, (ii) Indebtedness evidenced by any
guarantee of the Founders' Notes and (iii) Indebtedness under Interest Rate
Agreements. Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall
not include (i) Indebtedness evidenced by the Guarantees, (ii) Indebtedness that
is subordinate or junior in right of payment to any Indebtedness of any
Guarantor, (iii) Indebtedness which when incurred and without respect to any
election under Section 1111(b) of Title 11 of the United States Code, is without
recourse to any Guarantor, (iv) Indebtedness which is represented by
Disqualified Equity Interests, (v) any liability for foreign, federal, state,
local or other taxes owed or owing by any Guarantor to the extent such liability
constitutes Indebtedness, (vi) Indebtedness of any Guarantor to a Subsidiary or
any other Affiliate of the Company or any of such Affiliate's subsidiaries,
(vii) Indebtedness evidenced by any guarantee of any Subordinated Indebtedness
or Pari Passu Indebtedness, (viii) that portion of any Indebtedness which at the
time of issuance is issued in violation of this Indenture, (ix) Indebtedness
owed by any Guarantor for compensation to employees or for services and (x) any
guarantee of the Minority Note.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
-11-
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Equity Interests of such Person, or any
warrants, rights or options to acquire such Equity Interests, now or hereafter
outstanding, (ii) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade payables arising in
the ordinary course of business, (iv) all obligations under Interest Rate
Agreements of such Person, (v) all Capital Lease Obligations of such Person,
(vi) all Indebtedness referred to in clauses (i) through (v) above of other
Persons and all dividends of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien, upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all
Disqualified Equity Interests valued at the greater of their voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
and (ix) any amendment, supplement, modification, deferral, renewal, extension,
refunding or refinancing of any liability of the types referred to in clauses
(i) through (viii) above; provided, however, that the term Indebtedness shall
not include any obligations of the Company and its Restricted Subsidiaries with
respect to Film Contracts entered into in the ordinary course of business. The
amount of Indebtedness of any Person at any date shall be, without duplication,
the principal amount that would be shown on a balance sheet of such Person
prepared as of such date in accordance with GAAP and the maximum determinable
liability of any Guaranteed Debt referred to in clause (vii) above at such date.
The Indebtedness of the Company and its Restricted Subsidiaries shall not
include any Indebtedness of Unrestricted Subsidiaries so long as such
Indebtedness is non-recourse to the Company and the Restricted Subsidiaries. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified Equity
Interests which do not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interests as if such
Disqualified Equity Interests were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified Equity
Interests, such Fair Market Value to be determined in good faith by the Board of
Directors of the issuer of such Disqualified Equity Interests.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the Securities, including
any Guarantor, to pay principal, premium, if any, and interest when due and
payable, and all other amounts due or to become due
-12-
under or in connection with this Indenture, the Securities and the performance
of all other obligations to the Trustee and the Holders under this Indenture and
the Securities, according to the terms hereof and thereof.
"Independent Director" means a director of the Company other
than a director (i) who (apart from being a director of the Company or any
Subsidiary) is an employee, insider, associate or Affiliate of the Company or a
Subsidiary or has held any such position during the previous five years or (ii)
who is a director, an employee, insider, associate or Affiliate of another party
to the transaction in question.
"Initial Purchasers" shall mean Smith Barney Inc., Chase
Securities Inc., Salomon Brothers Inc and Furman Selz as initial purchasers of
the Securities.
"Initial Securities" has the meaning specified in the Recitals.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Equity Interests, bonds, notes, debentures or other securities or assets issued
or owned by any other Person and all other items that would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Issue Date" means July 2, 1997.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind (including any conditional sale
or other title retention agreement, any leases in the nature thereof, and any
agreement to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired.
"Local Marketing Agreement" means a local marketing
arrangement, sale agreement, time brokerage agreement, management agreement or
similar arrangement pursuant to which a Person (i) obtains the right to sell at
least a majority of the advertising inventory of a television station on behalf
of a third party, (ii) purchases at least a majority of the air time of a
-13-
television station to exhibit programming and sell advertising time, (iii)
manages the selling operations of a television station with respect to at least
a majority of the advertising inventory of such station, (iv) manages the
acquisition of programming for a television station, (v) acts as a program
consultant for a television station, or (vi) manages the operation of a
television station generally.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity, the Offer
Date, or the Redemption Date and whether by declaration of acceleration, Offer
in respect of Excess Proceeds, Change of Control, call for redemption or
otherwise.
"Minority Note" means the promissory note, dated December 26,
1986, made by the Company to Frederick M. Himes, B. Stanley Resnick and Edward
A. Johnston, as representatives, pursuant to a stock purchase agreement, dated
December 22, 1986, among the Company, Commercial Radio Institute, Inc.,
Chesapeake Television, Inc. and certain individuals.
"Moody's" means Moody's Investors Service, Inc. or any
successor rating agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof in the form of cash or Temporary Cash
Investments including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Temporary Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary) net
of (i) brokerage commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
secured by the assets or properties the subject of such Asset Sale, (iv) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale
and (v) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee and (b) with respect to any
issuance or sale of Equity Interests, or debt securities or Equity Interests
that have been converted into or exchanged for Equity Interests, as referred to
under Section 1009, the proceeds of such issuance or sale in the form of cash or
Temporary Cash Investments, including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
for, cash or Temporary Cash Investments (except to the extent that such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary), net of attorney's fees, accountant's fees and brokerage,
consultation, underwriting
-14-
and other fees and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President or a Vice President
(regardless of vice presidential designation), and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or
any Guarantor, as the case may be, and delivered to the Trustee.
"Operating Cash Flow" means, for any period, the Consolidated
Net Income of the Company and its Restricted Subsidiaries for such period, plus
(a) extraordinary net losses and net losses on sales of assets outside the
ordinary course of business during such period, to the extent such losses were
deducted in computing Consolidated Net Income, plus (b) provision for taxes
based on income or profits, to the extent such provision for taxes was included
in computing such Consolidated Net Income, and any provision for taxes utilized
in computing the net losses under clause (a) hereof, plus (c) Consolidated
Interest Expense of the Company and its Restricted Subsidiaries for such period,
plus (d) depreciation, amortization and all other non-cash charges, to the
extent such depreciation, amortization and other non-cash charges were deducted
in computing such Consolidated Net Income (including amortization of goodwill
and other intangibles, including Film Contracts and write-downs of Film
Contracts, minus (e) any cash payments contractually required to be made with
respect to Film Contracts (to the extent not previously included in computing
such Consolidated Net Income).
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, any of the Guarantors or the Trustee, unless an
Opinion of Independent Counsel is required pursuant to the terms of this
Indenture, and who shall be acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel issued by someone who is not an employee or consultant of the Company or
any Guarantor and who shall be acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other
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than the Company or any Affiliate thereof) in trust or set aside and segregated
in trust by the Company or such Affiliate (if the Company or such Affiliate
shall act as the Paying Agent) for the Holders; provided that if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor reasonably satisfactory to the Trustee has
been made;
(c) Securities, except to the extent provided in Sections 402
and 403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company; provided, however, that in determining whether
the Holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company, any Guarantor, or any other obligor
upon the Securities or any Affiliate of the Company, any Guarantor, or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, any Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Guarantor or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or any Guarantor that is pari passu in right of payment to the
Securities or any Guarantee, as the case may be.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company.
"Payment Default" means any default in the payment of
principal of, premium, if any, or interest, on any Designated Senior
Indebtedness.
"Permitted Guarantor Junior Securities" means (so long as the
effect of any exclusion employing this definition is not to cause the Guarantee
to be treated in any case or proceeding or similar event described in clause
(a), (b) or (c) of Section 1417 as part of the same class of claims as the
Guarantor Senior Indebtedness or any class of claims pari passu with, or senior
to, the Guarantor Senior Indebtedness) for any payment or distribution, debt or
equity securities of any Guarantor or any successor corporation provided for by
a plan of reorganization
-16-
or readjustment that are subordinated at least to the same extent that the
Guarantee is subordinated to the payment of all Guarantor Senior Indebtedness
then outstanding; provided that (1) if a new corporation results from such
reorganization or readjustment, such corporation assumes any Guarantor Senior
Indebtedness not paid in full in cash or Cash Equivalents in connection with
such reorganization or readjustment and (2) the rights of the holders of such
Guarantor Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment.
"Permitted Holders" means as of the date of determination (i)
any of David D. Smith, Frederick G. Smith, J. Duncan Smith and Robert E. Smith;
(ii) family members or the relatives of the Persons described in clause (i);
(iii) any trusts created for the benefit of the Persons described in clause (i),
(ii) or (iv) or any trust for the benefit of any such trust; or (iv) in the
event of the incompetence or death of any of the Persons described in clauses
(i) and (ii), such Person's estate, executor, administrator, committee or other
personal representative or beneficiaries, in each case who at any particular
date shall beneficially own or have the right to acquire, directly or
indirectly, Equity Interests of the Company.
"Permitted Indebtedness" has the meaning specified in Section
1008.
"Permitted Investment" means (i) Investments in any Wholly
Owned Restricted Subsidiary; (ii) Indebtedness of the Company or a Restricted
Subsidiary described under clauses (vi) and (vii) of the definition of
"Permitted Indebtedness"; (iii) Temporary Cash Investments; (iv) Investments
acquired by the Company or any Restricted Subsidiary in connection with an Asset
Sale permitted under Section 1013 to the extent such Investments are non-cash
proceeds as permitted under such covenant; (v) guarantees of Indebtedness
otherwise permitted by the Indenture; (vi) Investments in existence on the date
of this Indenture; (vii) loans up to an aggregate of $1,000,000 outstanding at
any one time to employees pursuant to benefits available to the employees of the
Company or any Restricted Subsidiary from time to time in the ordinary course of
business; (viii) any Investments in the Securities; (ix) a Guarantee by any
Guarantor and any other guarantee given by a Guarantor of any Indebtedness of
the Company in accordance with this Indenture; (x) Investments by the Company or
any Restricted Subsidiary in a Person, if as a result of such Investment (I)
such Person becomes a Restricted Subsidiary or (II) such Person is merged,
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; and
(xi) other Investments that do not exceed $5,000,000 at any time outstanding.
"Permitted Junior Securities" means (so long as the effect of
any exclusion employing this definition is not to cause the Securities to be
treated in any case or proceeding or similar event described in clause (a), (b)
or (c) of Section 1202 as part of the same class of claims as the Senior
Indebtedness or any class of claims pari passu with, or senior to, the Senior
Indebtedness) for any payment or distribution, debt or equity securities of the
Company or any successor corporation provided for by a plan of reorganization or
readjustment that are subordinated at least to the same extent that the
Securities are subordinated to the payment of all
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Senior Indebtedness then outstanding; provided that (1) if a new corporation
results from such reorganization or readjustment, such corporation assumes any
Senior Indebtedness not paid in full in cash or Cash Equivalents in connection
with such reorganization or readjustment and (2) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment.
"Permitted Subsidiary Indebtedness" means:
(i) Indebtedness of any Guarantor under Capital Lease
Obligations incurred in the ordinary course of business; and
(ii) Indebtedness of any Guarantor (a) issued to finance or
refinance the purchase or construction of any assets of such Guarantor or (b)
secured by a Lien on any assets of such Guarantor where the lender's sole
recourse is to the assets so encumbered, in either case (x) to the extent the
purchase or construction prices for such assets are or should be included in
"property and equipment" in accordance with GAAP and (y) if the purchase or
construction of such assets is not part of any acquisition of a Person or
business unit.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Equity Interest," as applied to the Equity Interest
of any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such person, over Equity Interests of any other
class of such Person.
"Prospectus" means the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Series A Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Public Equity Offering" means, with respect to any Person, an
underwritten public offering by such Person of some or all of its Equity
Interests (other than Disqualified
-18-
Equity Interests), the net proceeds of which (after deducting any underwriting
discounts and commissions) exceed $10,000,000.
"Qualified Equity Interests" of any Person means any and all
Equity Interests of such Person other than Disqualified Equity Interests.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 2, 1997, among the Company, the Guarantors and the
Initial Purchasers.
"Registration Statement" means any registration statement of
the Company which covers any of the Series A Securities or Series B Securities
pursuant to the provisions of the Registration Rights Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the 15th day (whether or not a Business Day) next preceding
such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or the agent of the
Trustee appointed hereunder, including any vice president, assistant vice
president, assistant secretary, or any other officer or assistant officer of the
Trustee or the agent of the Trustee appointed hereunder to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Payment" has the meaning specified in Section 1009.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section 202
to be placed upon a Restricted Security.
"Restricted Securities Transfer Certificate" means a
certificate substantially in the form set forth in Exhibit A.
-19-
"Restricted Security" means each Security required pursuant to
Section 306 to bear a Restricted Securities Legend.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144A Information" shall be such information with respect
to the Company and the Guarantors as is specified pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto).
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which the Company or a Restricted
Subsidiary sells or transfers any property or asset in connection with the
leasing, or the resale against installment payments, of such property or asset
to the seller or transferor.
"S&P" means Standard & Poor's Ratings Service, a division of
the McGraw Hill Companies, or any successor rating agency.
"Securities" has the meaning specified in the Recitals.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
"Senior Indebtedness" is defined as the principal of, premium,
if any, and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law
whether or not allowable as a claim in such proceeding) on any Indebtedness of
the Company (other than as otherwise provided in this definition), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, and whether at any time owing, actually or contingent, unless, in the
case of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
the principal of, premium, if any, and interest (including interest accruing
after the filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy law whether or not allowable as a claim in such
proceeding) and all other obligations of every nature of the Company from time
to time owed to the lenders (or their agent) under the Bank Credit Agreement;
provided, however, that any Indebtedness under any refinancing, refunding or
replacement of the Bank Credit Agreement shall not constitute Senior
Indebtedness to the extent that the Indebtedness thereunder is by its express
terms subordinate to any other Indebtedness of the Company, (ii) Indebtedness
outstanding under the Founders' Notes and (iii) Indebtedness under Interest Rate
Agreements. Notwithstanding the foregoing, "Senior Indebtedness" shall not
-20-
include (i) Indebtedness evidenced by the Securities, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the Company,
(iii) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to
the Company, (iv) Indebtedness which is represented by Disqualified Equity
Interests, (v) any liability for foreign, federal, state, local or other taxes
owed or owing by the Company to the extent such liability constitutes
Indebtedness, (vi) Indebtedness of the Company to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture, (viii) Indebtedness owed by the Company for compensation to
employees or for services and (ix) Indebtedness outstanding under the Minority
Note.
"Series A Securities" has the meaning specified in the
Recitals.
"Series B Securities" has the meaning specified in the
Recitals.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to Section 2(b) of the Registration Rights
Agreement, which covers all or a portion of the Registrable Securities (as
defined in the Registration Rights Agreement) on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon, means the date specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
or any Guarantor subordinated in right of payment to the Securities or a
Guarantee, as the case may be.
"Subsidiary" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security. For the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
-21-
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, or an instrumentality or agency thereof
and guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not more
than one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution (including the Trustee) that is a member of the
Federal Reserve System and that has combined capital and surplus and undivided
profits of not less than $500,000,000, whose debt has a rating, at the time as
of which any investment therein is made, of "P-1" (or higher) according to
Moody's or "A-1" (or higher) according to S&P, (iii) commercial paper, maturing
not more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company) (including the Trustee)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's or "A-1" (or higher) according to S&P and (iv) any
money market deposit accounts issued or offered by a domestic commercial bank
having capital and surplus in excess of $500,000,000.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary if all of
the following conditions apply: (a) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness and (b) any Investment in such Subsidiary made as a result of
designating such Subsidiary an Unrestricted Subsidiary shall not violate the
provisions of Section 1019. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions. The
Board of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that immediately after giving effect to such
designation, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to the restrictions under Section 1008.
KDSM, Inc., KDSM License, Inc., Sinclair Capital and Cresap, Inc. are
Unrestricted Subsidiaries.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to which
neither the Company nor any Restricted Subsidiary is directly or indirectly
liable (by virtue of the Company or any such
-22-
Restricted Subsidiary being the primary obligor on, guarantor of, or otherwise
liable in any respect to, such Indebtedness), except Guaranteed Debt of the
Company or any Restricted Subsidiary to any Affiliate, in which case (unless the
incurrence of such Guaranteed Debt resulted in a Restricted Payment at the time
of incurrence) the Company shall be deemed to have made a Restricted Payment
equal to the principal amount of any such Indebtedness to the extent guaranteed
at the time such Affiliate is designated an Unrestricted Subsidiary and (ii)
which, upon the occurrence of a default with respect thereto, does not result
in, or permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare, a default on such Indebtedness of the Company or any
Restricted Subsidiary or cause the payment thereof to be accelerated or payable
prior to its Stated Maturity.
"Voting Stock" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Equity Interest of which is owned by the Company or another
Wholly Owned Restricted Subsidiary.
-23-
Section 102. Other Definitions.
Defined in
Term Section
- ---- -------
"Act" 105
"Change of Control Offer" 1016
"Change of Control Purchase Date" 1016
"Change of Control Purchase Notice" 1016
"Change of Control Purchase Price" 1016
"covenant defeasance" 403
"Defaulted Interest" 309
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Deficiency" 1013
"Excess Proceeds" 1013
"Guarantor Senior Representative" 1424
"Initial Blockage Period" 1203
"Offer" 1013
"Offer Date" 1013
"Offered Price" 1013
"Pari Passu Debt Amount" 1013
"Pari Passu Offer" 1013
"Payment Blockage Period" 1203
"Penalty Interest" 202
"Permitted Guarantor Junior Securities" 1417
"Permitted Indebtedness" 1008
"Permitted Payments" 1009
"Physical Securities" 305
"Prescribed Time Period" 202
"QIB" 203
"Required Filing Dates" 1020
"Security Amount" 1013
"Senior Representative" 1203
"Surviving Entity" 801
"U.S. Government Obligations" 404
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company, any
Guarantor and any other obligor on the Securities shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent,
-24-
if any, provided for in this Indenture (including any covenants compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents, certificates and/or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual,
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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Guarantor or other obligor of the Securities may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, any Guarantor or
other obligor of the Securities stating that the information with respect to
such factual matters is in the possession of the Company, any Guarantor or other
obligor of the Securities, unless such counsel knows that the certificate or
opinion or
-25-
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture, if made in the manner provided in this Section. The fact and date of
the execution by any person of any such instrument or writing or the authority
of the person executing the same, may also be proved in any other manner which
the Trustee deems sufficient in accordance with such reasonable rules as the
Trustee may determine.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company or any Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of
-26-
Holders generally in connection therewith and no later than the date such
solicitation is completed.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf of
the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Trustee shall have no obligation to do so. Any such record date shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than a date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 106. Notices, etc., to Trustee, the Company and any
Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any
Guarantor or any other obligor of the Securities or a Senior Representative or
holder of Senior Indebtedness shall be sufficient for every purpose hereunder if
in writing and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to or with the Trustee at the Corporate Trust Office,
Attention: Corporate Trust Division, or at any other address previously
furnished in writing to the Holders, the Company, any Guarantor, any other
obligor of the Securities or a Senior Representative or holder of Senior
Indebtedness by the Trustee; or
(b) the Company or any Guarantor shall be sufficient for every
purpose (except as provided in Section 501(c)) hereunder if in writing and
mailed, first-class postage prepaid, or delivered by recognized overnight
courier, to the Company or such Guarantor addressed to it at Sinclair Broadcast
Group, Inc., 2000 West 41st Street, Baltimore, Maryland 21211, Attention:
President, or at any other address previously furnished in writing to the
Trustee by the Company;
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Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Guarantors shall bind their successors and assigns, whether so expressed
or not.
Section 111. Separability Clause.
-28-
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the
Guarantees, express or implied, shall give to any Person (other than the parties
hereto and their successors hereunder, any Paying Agent, the Holders and the
holders of Senior Indebtedness or Guarantor Senior Indebtedness) any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE AND THE SECURITIES AND THE GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity and no interest shall accrue with respect to such payment for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 115. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 116. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
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ARTICLE II
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The terms and provisions contained in the form of Securities
set forth in Sections 202 through 205 shall constitute, and are expressly made,
a part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Section 202. Form of Face of Security.
(a) The form of the face of any Series A Security
authenticated and delivered hereunder shall be substantially as follows:
Unless and until (i) a Series A Security is sold under an
effective Registration Statement or (ii) a Series A Security is exchanged for a
Series B Security in connection with an effective Registration Statement, in
each case pursuant to the Registration Rights Agreement, then each Series A
Security shall bear the legend set forth below (the "Restricted Securities
Legend") on the face thereof:
SINCLAIR BROADCAST GROUP, INC.
------------------------------
9% SENIOR SUBORDINATED NOTE DUE 2007, SERIES A [IF THE
SECURITY IS A RESTRICTED SECURITY, INSERT -- THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
-30-
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR"),
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
No. $ ______________
-----------------------
SINCLAIR BROADCAST GROUP, INC., a Maryland corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _________ or registered assigns, the principal sum of __________ United
States dollars ($________) on July 15, 2007, at the office or agency of the
Company referred to below, and to pay interest thereon from July 2, 1997, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on January 15 and July 15, in each year,
commencing January 15, 1998 at the rate of 9% per annum, plus Penalty Interest,
if any, in United States dollars, until the principal hereof is paid or duly
provided for.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Series A Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the interest rate borne by the Series A Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Series A Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Series A Securities
not less than 10 days
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prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Series A Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
The Holder of this Series A Security is entitled to the
benefits of the Registration Rights Agreement, dated as of July 2, 1997, among
the Company, the Guarantors and the Initial Purchasers, pursuant to which,
subject to the terms and conditions thereof, the Company is obligated, among
other things, to consummate the Exchange Offer pursuant to which the Holder of
this Series A Security shall have the right to exchange this Series A Security
for 9% Senior Subordinated Notes due 2007, Series B (herein called the "Series B
Securities") in like principal amount as provided therein. The Series A
Securities and the Series B Securities are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
Additional interest ("Penalty Interest") will be assessed on
the Series A Securities as follows:
(i) (A) if an Exchange Offer Registration Statement (or, in
the event of a change in applicable law or due to current interpretations by the
Commission, the Company is not permitted to effect the Exchange Offer, a Shelf
Registration Statement) is not filed within 60 days following the Closing Date,
(B) in the event that within 30 days after consummation of the Exchange Offer,
any Holder shall notify the Company that such Holder (x) is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
(y) may not resell Exchange Securities acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (z) is a broker-dealer and holds Series A
Securities acquired directly from the Company or an "affiliate" of the Company
and a Shelf Registration Statement is not filed within 60 days after such notice
or (C) upon the request of an Initial Purchaser, a Shelf Registration Statement
is not filed within 60 days after such request, then commencing on either the
61st day after the Closing Date or the expiration of either of the 60-day time
periods set forth in clauses (B) or (C) above (either, a "Prescribed Time
Period"), as the case may be, Penalty Interest shall be accrued on the Series A
Securities over and above the stated payment rates thereon at a rate of .50% per
annum for the first 90 days immediately following either the 61st day after the
Closing Date or the expiration of the applicable Prescribed Time Period, as the
case may be, such Penalty Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding full
paragraph and is not declared effective within either 120 days following the
Closing Date or 60 days following the expiration of the applicable Prescribed
Time Period, as the case may be, then commencing on the 121st day after either
the Closing Date or the 61st day following the expiration of the applicable
Prescribed Time Period, as
-32-
the case may be, Penalty Interest shall be accrued on the Series A Securities
over and above the accrued stated payment rates thereon at a rate of .50% per
annum for the first 90 days immediately following the 121st day after either the
Closing Date or the 61st day after the expiration of the applicable Prescribed
Time Period, as the case may be, such Penalty Interest rate increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period; and
(iii) if either (A) the Company has not exchanged the Exchange
Securities (as defined in the Registration Rights Agreement) for all of the
Series A Securities validly tendered in accordance with the terms of the
Exchange Offer on or prior to 165 days after the Closing Date, or (B) if
applicable, a Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective prior to two years from its
original effective date or such shorter period that will terminate when all of
the Series A Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement, then, subject to certain
exceptions, Penalty Interest shall be accrued on the Series A Securities over
and above the stated payment rates at a rate of .50% per annum for the first 60
days immediately following the (x) 166th day after the Closing Date in the case
of (A) above or (y) the day such Shelf Registration Statement ceases to be
effective in the case of (B) above, such Penalty Interest rate increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period;
provided, however, that the Penalty Interest rate on the Series A Securities may
not exceed 1.5% per annum; and provided, further, that (1) upon the filing of
the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of (ii)
above), or (3) upon the exchange of Exchange Securities for all Series A
Securities tendered in the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective prior to two years
from its original effective date (in the case of (iii) above), Penalty Interest
as a result of such clause (i), (ii) or (iii) shall cease to accrue.
Any Penalty Interest due pursuant to clause (i), (ii) or (iii)
above will be payable in cash on the Interest Payment Date related to the Series
A Securities. The Penalty Interest will be determined by multiplying the
applicable Penalty Interest rate by the principal amount of the Series A
Securities, multiplied by a fraction the numerator of which is the number of
days such Penalty interest rate was applicable during such period, and the
denominator of which is 360.
Payment of the principal of, premium, if any, and interest on
this Series A Security will be made at the office or agency of the Company
maintained for that purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register. If any of the
Series A Securities are held
-33-
by the Depositary, payments of interest to the Depositary may be made by wire
transfer to the Depositary. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
Reference is hereby made to the further provisions of this
Series A Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Series A Security is entitled to the benefits of
Guarantees by each of the Guarantors of the punctual payment when due of the
Indenture Obligations made in favor of the Trustee for the benefit of the
Holders. Reference is hereby made to Article Fourteen of the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations under the Guarantees of each of the Guarantors.
All references in this Series A Security or in the Indenture
to accrued and unpaid interest shall be deemed to include, to the extent
applicable, a reference to Penalty Interest.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Series A Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: SINCLAIR BROADCAST GROUP, INC.
By:
---------------------------------
Attest:
[SEAL]
Secretary
(b) The form of the face of any Series B Security
authenticated and delivered hereunder shall be substantially as follows:
SINCLAIR BROADCAST GROUP, INC.
------------------------------
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9% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
No. $ ____________
-----------------------
SINCLAIR BROADCAST GROUP, INC., a Maryland corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ________________ or registered assigns, the principal sum of _______________
United States dollars ($_________) on July 15, 2007, at the office or agency of
the Company referred to below, and to pay interest thereon from July 2, 1997, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on January 15 and July 15, in each year,
commencing January 15, 1998 at the rate of 9% per annum, plus Penalty Interest,
if any, in United States dollars, until the principal hereof is paid or duly
provided for.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Series B Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the interest rate borne by the Series B Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Series B Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Series B Securities
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series B Securities may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
This Series B Security was issued pursuant to the Exchange
Offer pursuant to which the 9% Senior Subordinated Notes due 2007, Series A
(herein called the "Series A Securities") in like principal amount were
exchanged for the Series B Securities. The Series B Securities rank pari passu
in right of payment with the Series A Securities.
In addition, pursuant to the Registration Rights Agreement,
dated as of July 2, 1997, among the Company, the Guarantors and the Initial
Purchasers for any period in which the Series A Security exchanged for this
Series B Security was outstanding:
(i) (A) if an Exchange Offer Registration Statement (or, in
the event of a change in applicable law or due to current interpretations by the
Commission, the Company is not permitted to effect the Exchange Offer, a Shelf
Registration Statement) is not filed within 60 days following the Closing Date,
(B) in the event that within 30 days after consummation of the
-35-
Exchange Offer, any Holder shall notify the Company that such Holder (x) is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, (y) may not resell Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (z) is a
broker-dealer and holds Securities acquired directly from the Company or an
"affiliate" of the Company and a Shelf Registration Statement is not filed
within 60 days after such notice or (C) upon the request of an Initial
Purchaser, a Shelf Registration Statement is not filed within 60 days after such
request, then commencing on either the 61st day after the Closing Date or the
expiration of either of the 60-day time periods set forth in clauses (B) or (C)
above (either, a "Prescribed Time Period"), as the case may be, Penalty Interest
shall be accrued on the Series A Securities over and above the stated payment
rates thereon at a rate of .50% per annum for the first 90 days immediately
following either the 61st day after the Closing Date or the expiration of the
applicable Prescribed Time Period, as the case may be, such Penalty Interest
rate increasing by an additional .25% per annum at the beginning of each
subsequent 90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding full
paragraph and is not declared effective within either 120 days following the
Closing Date or 60 days following the expiration of the applicable Prescribed
Time Period, as the case may be, then commencing on the 121st day after either
the Closing Date or the 61st day following the expiration of the applicable
Prescribed Time Period, as the case may be, Penalty Interest shall be accrued on
the Series A Securities over and above the accrued stated payment rates thereon
at a rate of .50% per annum for the first 90 days immediately following the
121st day after either the Closing Date or the 61st day after the expiration of
the applicable Prescribed Time Period, as the case may be, such Penalty Interest
rate increasing by an additional .25% per annum at the beginning of each
subsequent 90-day period; and
(iii) if either (A) the Company has not exchanged the Exchange
Securities (as defined in the Registration Rights Agreement) for all of the
Securities validly tendered in accordance with the terms of the Exchange Offer
on or prior to 165 days after the Closing Date or (B) if applicable, a Shelf
Registration Statement has been declared effective and such Shelf Registration
Statement ceases to be effective prior to two years from its original effective
date or such shorter period that will terminate when all of the Series A
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, then, subject to certain exceptions,
Penalty Interest shall be accrued on the Series A Securities over and above the
stated payment rates at a rate of .50% per annum for the first 60 days
immediately following the (x) 166th day after the Closing Date in the case of
(A) above or (y) the day such Shelf Registration Statement ceases to be
effective in the case of (B) above, such Penalty Interest rate increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period;
provided, however, that the Penalty Interest rate on the Series A Securities may
not exceed 1.5% per annum; and provided, further, that (1) upon the filing of
the Exchange Offer Registration
-36-
Statement or a Shelf Registration Statement (in the case of (i) above), (2) upon
the effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of (ii) above) or (3) upon the exchange of
Exchange Securities for all Series A Securities tendered in the Exchange Offer
or upon the effectiveness of the Shelf Registration Statement which had ceased
to remain effective prior to two years from its original effective date (in the
case of (iii) above), Penalty Interest as a result of such clause (i), (ii) or
(iii) shall cease to accrue.
Any Penalty Interest due pursuant to clause (i), (ii) or (iii)
above will be payable in cash on the Interest Payment Date related to the Series
A Securities. The Penalty Interest will be determined by multiplying the
applicable Penalty Interest rate by the principal amount of the Series A
Securities, multiplied by a fraction the numerator of which is the number of
days such Penalty Interest rate was applicable during such period, and the
denominator of which is 360.
Payment of the principal of, premium, if any, and interest on
this Series B Security will be made at the office or agency of the Company
maintained for that purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register. If any of the
Series B Securities are held by the Depositary, payments of interest to the
Depositary may be made by wire transfer to the Depositary. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this
Series B Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Series B Security is entitled to the benefits of
Guarantees by each of the Guarantors of the punctual payment when due of the
Indenture Obligations made in favor of the Trustee for the benefit of the
Holders. Reference is hereby made to Article Fourteen of the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations under the Guarantees of each of the Guarantors.
All references in this Series B Security or in the Indenture
to accrued and unpaid interest shall be deemed to include, to the extent
applicable, a reference to Penalty Interest.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Series B Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
-37-
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: SINCLAIR BROADCAST GROUP, INC.
By:
--------------------------------
Attest:
[SEAL]
Secretary
Section 203. Form of Reverse of Securities.
(a) The form of the reverse of the Series A Securities shall
be substantially as follows:
SINCLAIR BROADCAST GROUP, INC.
------------------------------
9% SENIOR SUBORDINATED NOTE DUE 2007, SERIES A
This Security is one of a duly authorized issue of Securities
of the Company designated as its 9% Senior Subordinated Notes due 2007, Series A
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $200,000,000,
which may be issued under an indenture (herein called the "Indenture"), dated as
of July 2, 1997, among the Company, the Guarantors and First Union National Bank
of Maryland, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities and the Guarantees are, and are to be,
authenticated and delivered.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance or noncompliance with certain conditions set forth therein.
-38-
The Indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, whether
Outstanding on the date of the Indenture or thereafter, and this Security is
issued subject to such provisions. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose; provided, however,
that, subject to Section 406 of the Indenture, the Indebtedness evidenced by
this Security shall cease to be so subordinate and subject in right of payment
upon any defeasance of this Security referred to in clause (a) or (b) of the
preceding paragraph.
The Securities are subject to redemption at any time on or
after July 15, 2002, at the option of the Company, in whole or in part, on not
less than 30 nor more than 60 days' prior notice by first-class mail in amounts
of $1,000 or an integral multiple of $1,000 at the following redemption prices
(expressed as a percentage of the principal amount), if redeemed during the
12-month period beginning July 15 of the years indicated below:
Year Redemption
Price
2002 .............................. 104.50%
2003 .............................. 103.00
2004 .............................. 101.50
and thereafter at 100% of the principal amount, in each case together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on relevant record dates to receive interest due on
an interest payment date). If less than all of the Securities are to be
redeemed, the Trustee shall select the Securities or portions thereof to be
redeemed pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable.
In addition, at any time on or prior to July 15, 2000, the
Company may redeem up to 25% of the original principal amount of Securities with
the net proceeds of a Public Equity Offering of the Company at 109% of the
aggregate principal amount, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the right of Holders of record on relevant
record dates to receive interest due on an interest payment date). The Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder may
require the Company to repurchase all or a portion of such Holder's Securities
in an amount of $1,000 or integral multiples of $1,000, at a purchase price in
cash equal to 101% of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of repurchase.
-39-
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from any Asset Sale,
which proceeds are not used to prepay Senior Indebtedness or invested in
properties or assets used in the businesses of the Company, exceed $5,000,000
the Company will be required to apply such proceeds to the repayment of the
Securities and certain Indebtedness ranking pari passu to the Securities.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities of record as of the close of business
on the relevant record date referred to on the face hereof. Securities (or
portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
date of redemption.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
If this Security is in certificated form, then as provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Security is a Restricted Security in certificated
form, then as provided in the Indenture and subject to certain limitations
therein set forth, the Holder, provided it is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act (a "QIB"), may exchange
this Security for an interest in a Global Security by instructing the Trustee
(by completing the Restricted Securities Transfer Certificate in the form in
Exhibit A to the Indenture) to arrange for such Security to be represented by a
beneficial interest in a Global Security in accordance with the customary
procedures of the Depositary, unless the Company has elected not to issue a
Global Security.
If this Security is a Global Security, except as described
below, it is not exchangeable for a Security or Securities in certificated form.
The Securities will be delivered in certificated form if (i) the Depositary
ceases to be registered as a clearing agency under the Exchange Act or is no
longer willing or able to provide securities depository services with respect to
the Securities, (ii) the Company so determines and (iii) there shall have
occurred an
-40-
Event of Default or an event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default with respect to the Securities
represented by such Global Security and such Event of Default or event continues
for a period of 90 days. Upon any such issuance, the Trustee is required to
register such certificated Security in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any thereof). All such
certificated Securities would be required to include the Restricted Securities
Legend.
At any time when the Company is not subject to Sections 13 or
15(d) of the Exchange Act, upon the written request of a Holder of a Security,
the Company will promptly furnish or cause to be furnished Rule 144A Information
to such Holder or to a prospective purchaser of such Security who such Holder
informs the Company is reasonably believed to be a QIB, as the case may be, in
order to permit compliance by such Holder with Rule 144A under the Securities
Act.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Guarantors and the rights of the Holders
under the Indenture and the Guarantees at any time by the Company, the
Guarantors and the Trustee with the consent of the Holders of a specified
percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company and the Guarantors with certain provisions of the
Indenture and the Guarantees and certain past Defaults under the Indenture and
the Guarantees and their consequences. Any such consent or waiver by or on
behalf of the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor upon the Securities (in the event
such other obligor is obligated to make payments in respect of the Securities),
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed, subject to the subordination provisions of the
Indenture.
The Securities if issued in certificated form are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
-41-
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes (subject to provisions with
respect to record dates for the payment of interest), whether or not this
Security is overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF).
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
(b) The form of the reverse of the Series B Securities shall
be substantially as follows:
SINCLAIR BROADCAST GROUP, INC.
------------------------------
9% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
This Security is one of a duly authorized issue of Securities
of the Company designated as its 9% Senior Subordinated Notes due 2007, Series B
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $200,000,000,
which may be issued under an indenture (herein called the "Indenture"), dated as
of July 2, 1997, among the Company, the Guarantors and First Union National Bank
of Maryland, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities and the Guarantees are, and are to be,
authenticated and delivered.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance or noncompliance with certain conditions set forth therein.
-42-
The Indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, whether
Outstanding on the date of the Indenture or thereafter, and this Security is
issued subject to such provisions. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose; provided, however,
that, subject to Section 406 of the Indenture, the Indebtedness evidenced by
this Security shall cease to be so subordinate and subject in right of payment
upon any defeasance of this Security referred to in clause (a) or (b) of the
preceding paragraph.
The Securities are subject to redemption at any time on or
after July 15, 2002, at the option of the Company, in whole or in part, on not
less than 30 nor more than 60 days' prior notice by first-class mail in amounts
of $1,000 or an integral multiple of $1,000 at the following redemption prices
(expressed as a percentage of the principal amount), if redeemed during the
12-month period beginning July 15 of the years indicated below:
Year Redemption
Price
2002 .............................. 104.50%
2003 .............................. 103.00
2004 .............................. 101.50
and thereafter at 100% of the principal amount, in each case together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on relevant record dates to receive interest due on
an interest payment date). If less than all of the Securities are to be
redeemed, the Trustee shall select the Securities or portions thereof to be
redeemed pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable.
In addition, at any time on or prior to July 15, 2000, the
Company may redeem up to 25% of the original principal amount of Securities with
the net proceeds of a Public Equity Offering of the Company at 109% of the
aggregate principal amount, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the right of Holders of record on relevant
record dates to receive interest due on an interest payment date). The Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder may
require the Company to repurchase all or a portion of such Holder's Securities
in an amount of $1,000 or integral multiples of $1,000, at a purchase price in
cash equal to 101% of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of repurchase.
-43-
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from any Asset Sale,
which proceeds are not used to prepay Senior Indebtedness or invested in
properties or assets used in the businesses of the Company, exceed $5,000,000
the Company will be required to apply such proceeds to the repayment of the
Securities and certain Indebtedness ranking pari passu to the Securities.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities of record as of the close of business
on the relevant record date referred to on the face hereof. Securities (or
portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
date of redemption.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
If this Security is in certificated form, then as provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Security is a Global Security, except as described
below, it is not exchangeable for a Security or Securities in certificated form.
The Securities will be delivered in certificated form if (i) the Depositary
ceases to be registered as a clearing agency under the Exchange Act or is no
longer willing or able to provide securities depository services with respect to
the Securities, (ii) the Company so determines and (iii) there shall have
occurred an Event of Default or an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default with respect to the
Securities represented by such Global Security and such Event of Default or
event continues for a period of 90 days. Upon any such issuance, the Trustee is
required to register such certificated Security in the name of, and cause the
same to be delivered to, such Person or Persons (or the nominee of any thereof).
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Guarantors and the rights
-44-
of the Holders under the Indenture and the Guarantees at any time by the
Company, the Guarantors and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company and the Guarantors with certain provisions of the
Indenture and the Guarantees and certain past Defaults under the Indenture and
the Guarantees and their consequences. Any such consent or waiver by or on
behalf of the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor upon the Securities (in the event
such other obligor is obligated to make payments in respect of the Securities),
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed, subject to the subordination provisions of the
Indenture.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes (subject to provisions with
respect to record dates for the payment of interest), whether or not this
Security is overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF).
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
-45-
Section 204. Additional Provisions Required in Global
Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
IF THE DEPOSITORY TRUST COMPANY IS ACTING AS THE DEPOSITARY, INSERT -- UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be included
on the Securities and shall be substantially in the form as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF
MARYLAND,
As Trustee
-46-
By:
----------------------------------
Authorized Signatory
Section 206. Form of Guarantee of Each of the Guarantors.
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEES
For value received, each of the undersigned hereby
unconditionally guarantees, jointly and severally, to the holder of this
Security the payment of principal of, premium, if any, and interest on this
Security in the amounts and at the time when due and interest on the overdue
principal and interest, if any, of this Security, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture or the
Securities, to the holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security and Article
Fourteen of the Indenture. These Guarantees will not become effective until the
Trustee duly executes the certificate of authentication on this Security. The
Indebtedness evidenced by these Guarantees is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness (as defined in the
Indenture), whether Outstanding on the date of the Indenture or thereafter, and
these Guarantees are issued subject to such provisions.
CHESAPEAKE TELEVISION, INC.
CHESAPEAKE TELEVISION
LICENSEE, INC.
FSF-TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KSMO, INC.
KSMO LICENSEE, INC.
KUPN LICENSEE, INC.
SCI-INDIANA LICENSEE, INC.
SCI-SACRAMENTO LICENSEE, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF ALBUQUERQUE
LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF BUFFALO LICENSEE, INC.
-47-
SINCLAIR RADIO OF GREENVILLE,
INC.
SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES,
INC.
SINCLAIR RADIO OF LOS ANGELES
LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF MEMPHIS LICENSEE,
INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS,
INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF ST. LOUIS LICENSEE,
INC.
SINCLAIR RADIO OF WILKES-BARRE,
INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR COMMUNICATIONS OF
OKLAHOMA, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
TUSCALOOSA BROADCASTING INC.
WCGV, INC.
WCGV LICENSEE, INC.
WDBB, INC.
WLFL, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
-48-
WSMH LICENSEE, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTTO LICENSEE, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
WYZZ LICENSEE, INC.
Attest
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ARTICLE III
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $200,000,000 in
principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 303, 304, 305, 306, 307, 308, 906, 1013,
1016 or 1108.
The Securities shall be known and designated as the "9% Senior
Subordinated Notes due 2007," in the case of either Series A or Series B, of the
Company. The Stated Maturity of the Securities shall be July 15, 2007, and the
Securities shall each bear interest at the rate of 9% plus Penalty Interest, if
any, from July 2, 1997 or from the most recent Interest Payment Date to which
interest has been paid, as the case may be, payable on January 15, 1998 and
semiannually thereafter on January 15 and July 15, in each year, until the
principal thereof is paid or duly provided for.
-49-
Unless otherwise specified herein, the Series A Securities and
the Series B Securities will be treated as one class and are together referred
to as the "Securities." The Series A Securities rank pari passu in right of
payment with the Series B Securities.
The principal of, premium, if any, and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose; provided, however, that at the option of the Company interest
may be paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register. If any of the Securities are
held by the Depositary, payments of interest may be made by wire transfer to the
Depositary. The Trustee is hereby initially designated as the Paying Agent under
this Indenture.
The Securities shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Twelve.
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
one of its Chairman of the Board, its President or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices on the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
-50-
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
In case the Company or any Guarantor, pursuant to Article
Eight, shall be consolidated, merged with or into any other Person or shall
sell, assign, convey, transfer or lease substantially all of its properties and
assets to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
sale, assignment, conveyance, transfer or lease as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer or lease may, from
time to time, at the request of the successor Person, be exchanged for other
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Securities as specified in such request for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or
-51-
agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Global Securities.
With respect to transfers of QIBs, a Global Security shall, if
the Depositary permits, (i) be registered in the name of the Depositary for such
Global Security or the nominee of such Depositary, (ii) be deposited with, or on
behalf of, the Depositary and (iii) bear legends as set forth in Sections 202(a)
and 204; provided, however, the Securities are eligible to be in the form of a
Global Security.
Transfers made to Accredited Investors shall be made only in
certificated form and not as a beneficial interest in a Global Security.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Security.
(a) Transfers of the Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307. Under the circumstances
described in clause (a) above, and in this clause (b) below, beneficial owners
shall obtain physical securities in the form set forth in Sections 202, 203, 204
(if applicable) and 205 ("Physical Securities") in exchange for their beneficial
interests in a Global Security in accordance with the Depositary's and the
Securities Registrar's procedures. In connection with the execution,
authentication and delivery of such Physical Securities, the Security Registrar
shall reflect on its books and records a decrease in the principal amount of the
Global Security equal to the principal amount of such Physical Securities and
the Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Securities having an equal aggregate principal amount. The
Securities will be delivered in certificated form if (i) the Depositary ceases
to be registered as a clearing agency under the Exchange Act or is not willing
or no longer willing or able to provide securities depository services with
respect to the Securities, (ii) the
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Company so determines or (iii) there shall have occurred an Event of Default or
an event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default with respect to the Securities represented by
such Global Security and such Event of Default or event continues for a period
of 90 days.
(b) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (b) of this
Section to beneficial owners who are required to hold Physical Securities, the
Security Registrar shall reflect on its books and records the date and a
decrease in the principal amount of a Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
(c) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to subsection (b) of this Section, a
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial owner identified by the Depositary in exchange for its
beneficial interest in a Global Security, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(d) Any Physical Security delivered in exchange for an
interest in Global Securities pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided by paragraph (a)(i)(x) and
paragraph (c) of Section 307, bear the Restricted Securities Legend.
(e) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
Section 306. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may designate, a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as the
Security Registrar may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee or an agent thereof or
of the Company shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate principal
amount.
Furthermore, any Holder of a Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interest
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Securities shall be required to be
reflected in a book entry.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Series A Securities for Series B
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be cancelled.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Securities, but the
Company may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303, 304, 305, 306, 307,
308, 906, 1013, 1016 or 1108 not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business (i) 15 days before the date of selection of Securities for redemption
under Section 1104 and ending at the close of business on the day of such
selection or (ii) 15 days before an Interest Payment Date and ending on the
close of business on the Interest Payment Date, or (b) to register the transfer
of or
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exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of Securities being redeemed in part.
Every Restricted Security shall be subject to the restrictions
on transfer provided in the legend required to be set forth on the face of each
Restricted Security pursuant to Section 202(a), and the restrictions set forth
in this Section 306, and the Holder of each Restricted Security, by such
Holder's acceptance thereof (or interest therein), agrees to be bound by such
restrictions on transfer.
The restrictions imposed by this Section 306 upon the
transferability of any particular Restricted Security shall cease and terminate
on (a) the later of two years from their date of issuance or two years after the
last date on which the Company or any Affiliate of the Company was the owner of
such Restricted Security (or any predecessor of such Restricted Security) or (b)
(if earlier) if and when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or under the Securities Act (or any successor provision),
unless the Holder thereof is an affiliate of the Company within the meaning of
Rule 144 (or such successor provisions). Any Restricted Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon surrender of such Restricted Security for
exchange to the Security Registrar in accordance with the provision of this
Section 306 (accompanied, in the event that such restrictions on transfer have
terminated pursuant to Rule 144 (or any successor provision), by an Opinion of
Counsel satisfactory to the Company and the Trustee, to the effect that the
transfer of such Restricted Security has been made in compliance with Rule 144
(or any such successor provision)), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the Restricted
Securities Legend. The Company shall inform the Trustee of the effective date of
any Registration Statement registering the Securities under the Securities Act
no later than two Business Days after such effective date.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section,
Section 304, 308, 906 or 1108 or otherwise, shall also be a Global Security and
bear the legend specified in Section 202(a).
Section 307. Special Transfer Provisions.
Unless and until (i) a Security is sold under an effective
Registration Statement, or (ii) a Security is exchanged for a Series B Security
in connection with the Exchange Offer, in each case pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to an "Accredited Investor" which is
not a QIB:
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(i) The Security Registrar shall register the
transfer of any Initial Security whether or not such Initial
Security bears the Restricted Securities Legend, if (x) the
requested transfer is at least two years after the original
issue date of the Initial Securities or (y) the proposed
transferee has delivered to the Security Registrar a
certificate substantially in the form set forth in Exhibit A.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the Global Security, upon
receipt by the Security Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Security Registrar's
procedures therefor, the Security Registrar shall reflect on
its books and records the date and a decrease in the principal
amount of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global
Security transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical
Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Security
to a QIB:
(i) If the Security to be transferred consists of
Physical Securities, the Security Registrar shall register the
transfer if such transfer is being made by a proposed
transferor who has advised the Company and the Security
Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to the transferee
who has signed the certification provided for on the form of
Initial Security stating, or has otherwise advised the Company
and the Security Registrar in writing, that it is purchasing
the Initial Security for its own account or an account with
respect to which it exercises sole investment discretion and
that it, or the person on whose behalf it is acting with
respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member,
and the Initial Security to be transferred consists of
Physical Securities, upon receipt by the Securities Registrar
of instructions given in accordance with the Depositary's and
the Security Registrar's procedures therefor, the Security
Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Global Security in
an amount equal to the principal amount of the Physical
Securities, to be transferred, and the Trustee shall cancel
the Physical Security so transferred.
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(c) Restricted Securities Legend. Upon the registration of
transfer, exchange or replacement of Securities not bearing the Restricted
Securities Legend, the Security Registrar shall deliver Securities that do not
bear the Restricted Securities Legend. Upon the registration of transfer,
exchange or replacement of Securities bearing the Restricted Securities Legend,
the Security Registrar shall deliver only Securities that bear the Restricted
Securities Legend unless either (i) the circumstances contemplated by paragraph
(a)(i)(x) of this Section 307 exist or (ii) there is delivered to the Security
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Security bearing the
Restricted Securities Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Restricted Securities Legend and agrees that it will transfer such Security only
as provided in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Security Registrar.
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, each Guarantor and the Trustee, such security or indemnity, in each
case, as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, any Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its written request the Trustee shall authenticate and deliver, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a replacement Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
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Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantors, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date (not less than 30 days after such notice) of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Subsection provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company in writing of such Special Record Date. In the name and at the expense
of the Company, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose
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names the Securities are registered on such Special Record Date and shall no
longer be payable pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsection, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 310. Persons Deemed Owners.
The Company, any Guarantor, the Trustee and any agent of the
Company, any Guarantor or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section 309)
interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Company, any Guarantor, the Trustee
nor any agent of the Company, any Guarantor or the Trustee shall be affected by
notice to the contrary. No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, any Guarantor, the Trustee and any agent of the Company,
any Guarantor or the Trustee as the owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, any Guarantor, the Trustee or any agent of the Company, any
Guarantor or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
Section 311. Cancellation.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Company and any
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or such
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be
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destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled Securities be
returned to it. The Trustee shall provide the Company a list of all Securities
that have been cancelled from time to time as requested by the Company.
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either Section 402 or
Section 403 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company, each of the Guarantors and any
other obligor upon the Securities, if any, shall be deemed to have been
discharged from its obligations with respect to the Defeased Securities on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the Defeased
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 405 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at
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the expense of the Company, and, upon written request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such Defeased
Securities under Sections 304, 305, 306, 307, 1002 and 1003, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 606, and (d) this Article
Four. Subject to compliance with this Article Four, the Company may exercise its
option under this Section 402 notwithstanding the prior exercise of its option
under Section 403 with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company and each Guarantor shall be released
from its obligations under any covenant or provision contained or referred to in
Sections 1006 through 1019, inclusive, and the provisions of Article Twelve and
Sections 1416 through 1429 shall not apply, with respect to the Defeased
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Defeased Securities shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants and the provisions of Article Twelve
and Sections 1416 through 1429, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Defeased Securities, 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 Section or Article, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
501(c), (d) or (g), but, except as specified above, the remainder of this
Indenture and such Defeased Securities shall be unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Defeased Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 608 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, or (b) U.S. Government Obligations which through the scheduled
payment of principal and interest
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in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (c) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, and interest on
the Defeased Securities on the Stated Maturity of such principal or installment
of principal or interest (or on any date after July 15, 2002 (such date being
referred to as the "Defeasance Redemption Date"), if when exercising under
Section 401 either its option applicable to Section 402 or its option applicable
to Section 403, the Company shall have delivered to the Trustee an irrevocable
notice to redeem all of the Outstanding Securities on the Defeasance Redemption
Date); provided that the Trustee shall have been irrevocably instructed to apply
such United States dollars or the proceeds of such U.S. Government Obligations
to said payments with respect to the Securities; and provided, further, that the
United States dollars or U.S. Government Obligations deposited shall not be
subject to the rights of the holders of Senior Indebtedness or Guarantor Senior
Indebtedness pursuant to the provisions of Articles Twelve and Fourteen. For
this purpose, "U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(b) In the case of an election under Section 402, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States 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, and based thereon such Opinion of
Independent Counsel in the United States shall confirm that, the holders of the
Outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(c) In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States to the effect that
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the holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred.
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 501(h) and (i)
are concerned, at any time during the period ending on the 91st day after the
date of deposit.
(e) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest with respect to any
securities of the Company or any Guarantor.
(f) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company or any Guarantor is
a party or by which it is bound.
(g) The Company shall have delivered to the Trustee an Opinion
of Independent Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Senior Indebtedness or Guarantor Senior
Indebtedness, including, without limitation, those arising under this Indenture
and (B) after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the Securities or any Guarantee over the
other creditors of the Company or any Guarantor with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Guarantor or
others.
(i) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and interest
on the Securities on the date of such deposit or at any time ending on the 91st
day after the date of such deposit.
(j) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel, each stating that
all conditions precedent provided for relating to either the defeasance under
Section 402 or the covenant defeasance under Section 403 (as the case may be)
have been complied with as contemplated by this Section 404. Opinions of Counsel
or Opinions of Independent Counsel required to be delivered under this Section
may have qualifications customary for opinions of the type required and counsel
delivering such opinions may rely on certificates of the Company or government
or other officials customary for opinions of the type required, including
certificates certifying as to matters of fact, including that various financial
covenents have been complied with.
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Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee as
permitted under Section 404 (collectively, for purposes of this Section 405, the
"Trustee") pursuant to Section 404 in respect of the Defeased Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and each Guarantor's obligations under this
Indenture and the Securities and the provisions of Articles Twelve and Fourteen
hereof shall be revived and reinstated as though no deposit had occurred
pursuant to Section 402 or 403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such United States dollars or
U.S. Government Obligations in accordance with Section 402 or 403, as the case
may be; provided, however, that if the Company makes any payment to the Trustee
or Paying Agent of principal of, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Trustee or Paying Agent
shall promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE V
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events which has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on
any Security (including any Penalty Interest) when it becomes due and payable,
and such default shall continue for a period of 30 days;
(b) there shall be a default in the payment of the principal
of (or premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company or any Guarantor under this
Indenture (other than a default in the performance or breach of a covenant or
agreement which is specifically dealt with in clause (a) or (b) or in clause
(ii), (iii) or (iv) of this clause (c)) and such default or breach shall
continue for a period of 30 days after written notice has been given, by
certified mail, (1) to the Company by the Trustee or (z) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities; (ii) there shall be a default in the performance or
breach of the provisions of Article Eight; (iii) the Company shall have failed
to make or consummate an Offer in accordance with the provisions of Section
1013; or (iv) the Company shall have failed to make or consummate a Change of
Control Offer in accordance with the provisions of Section 1016;
(d) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company, any Guarantor or
any Restricted Subsidiary then has outstanding Indebtedness in excess of
$5,000,000 in the aggregate and, if not already matured at its final maturity in
accordance with its terms, such Indebtedness shall have been accelerated;
(e) any Guarantee shall for any reason cease to be, or be
asserted in writing by any Guarantor or the Company not to be, in full force and
effect, and enforceable in accordance with its terms, except to the extent
contemplated by this Indenture and any such Guarantee;
(f) one or more judgments, orders or decrees for the payment
of money in excess of $5,000,000 either individually or in the aggregate (net of
amounts covered by
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insurance, bond, surety or similar instrument), shall be entered against the
Company, any Guarantors, or any Restricted Subsidiary or any of their respective
properties and shall not be discharged and either (a) any creditor shall have
commenced an enforcement proceeding upon such judgment, order or decree or (b)
there shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of an appeal or otherwise,
shall not be in effect;
(g) any holder or holders of at least $5,000,000 in aggregate
principal amount of Indebtedness of the Company, any Guarantors, or any
Restricted Subsidiary after a default under such Indebtedness shall notify the
Trustee of the intended sale or disposition of any assets of the Company, any
Guarantors or any Restricted Subsidiary that have been pledged to or for the
benefit of such holder or holders to secure such Indebtedness or shall commence
proceedings, or take any action (including by way of set-off), to retain in
satisfaction of such Indebtedness or to collect on, seize, dispose of or apply
in satisfaction of Indebtedness, assets of the Company or any Restricted
Subsidiary (including funds on deposit or held pursuant to lock-box and other
similar arrangements);
(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company, any
Guarantor or any Restricted Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or (ii) a decree or order adjudging the
Company, any Guarantor or any Restricted Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company, any Guarantor or any Restricted Subsidiary under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, any Guarantor
or any Restricted Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(i) (i) the Company, any Guarantor or any Restricted
Subsidiary commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or
insolvent, (ii) the Company, any Guarantor or any Restricted Subsidiary consents
to the entry of a decree or order for relief in respect of the Company, any
Guarantor or such Restricted Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (iii) the Company, any Guarantor or
any Restricted Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (iv) the
Company, any Guarantor or any Restricted Subsidiary (1) consents to the filing
of such petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company, any Guarantor or such Restricted Subsidiary or of any
substantial part of its respective properties, (2) makes an assignment for the
benefit of creditors or (3) admits in writing its inability to pay its debts
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generally as they become due, or (v) the Company, any Guarantor or any
Restricted Subsidiary takes any corporate action authorizing any such actions in
this paragraph (i).
The Company shall deliver to the Trustee within five days
after the occurrence thereof, written notice, in the form of an Officers'
Certificate, of any Default, its status and what action the Company is taking or
proposes to take with respect thereto. Unless the Corporate Trust Office of the
Trustee has received written notice of an Event of Default of the nature
described in this Section, the Trustee shall not be deemed to have knowledge of
such Event of Default for the purposes of Article Five or for any other purpose.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Sections 501(h) and (i)), shall occur and be continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities Outstanding may, and the Trustee at the request of the Holders of not
less than 25% in aggregate principal amount of the Securities Outstanding shall,
declare all unpaid principal of, premium, if any, and accrued interest on all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders of the Securities); provided
that so long as the Bank Credit Agreement is in effect, such declaration shall
not become effective until the earlier of (a) five Business Days after receipt
of such notice of acceleration from the Holders or the Trustee by the agent
under the Bank Credit Agreement or (b) acceleration of the Indebtedness under
the Bank Credit Agreement. Thereupon the Trustee may, at its discretion, proceed
to protect and enforce the rights of the Holders of the Securities by
appropriate judicial proceeding. If an Event of Default specified in clause (h)
or (i) of Section 501 occurs and is continuing, then all the Securities shall
ipso facto become and be immediately due and payable, in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest,
if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder. The Trustee
or, if notice of acceleration is given by the Holders, the Holders shall give
notice to the agent under the Bank Credit Agreement of any such acceleration.
At any time after such declaration of acceleration has been
made but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel,
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(ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of acceleration and
interest thereon at a rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
(v) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 513.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company and each Guarantor covenant that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Stated Maturity thereof,
the Company and any such Guarantor will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, subject to Articles Twelve
and Fourteen, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, with interest upon the overdue
principal and premium, if any, and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest, at the rate
borne by the Securities; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company or any Guarantor, as the case may be, fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
Guarantor or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Guarantor or any other obligor upon the
Securities, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture or the Guarantees by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, including, seeking recourse against any
Guarantor pursuant to the terms of any Guarantee, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or therein, or to enforce any other proper
remedy, including, without limitation, seeking recourse against any Guarantor
pursuant to the terms of a Guarantee, or to enforce any other proper remedy,
subject however to Section 512.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor,
including each Guarantor, upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) subject to Articles Twelve and Fourteen, to collect and
receive any moneys, securities or other property payable or deliverable upon any
conversion or exchange of Securities or upon 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 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities.
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All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: Subject to Articles Twelve and Fourteen, to the
payment of the amounts then due and unpaid upon the Securities for principal,
premium, if any, and interest, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal,
premium, if any, and interest; and
THIRD: Subject to Articles Twelve and Fourteen, the balance,
if any, to the Person or Persons entitled thereto, including the Company,
provided that all sums due and owing to the Holders and the Trustee have been
paid in full as required by this Indenture.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Guarantee to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner provided in this Indenture or any Guarantee and for the equal and ratable
benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, but
subject to Articles Twelve and Fourteen, the Holder of any Security shall have
the right on the terms stated herein, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
309) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repurchase, on the Redemption
Date or repurchase date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder, subject to Articles Twelve and Fourteen.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or the Guarantees and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, each of the Guarantors, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
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No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, provided
that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or any Guarantee or expose the Trustee to personal
liability; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or
interest (including Penalty Interest) on any Security (unless such Default has
been cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration and any Penalty Interest has been
deposited with the Trustee); or
(b) in respect of a covenant or a provision hereof which under
Article Nine cannot be modified or amended without the consent of a higher
percentage of the principal amount of the Outstanding Securities affected.
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Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
Each of the Company and any Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company or any Guarantor
from paying all or any portion of the principal of, premium, if any, or interest
on the Securities contemplated herein or in the Securities or which may affect
the covenants or the performance of this Indenture; and each of the Company and
any Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
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ARTICLE VI
THE TRUSTEE
Section 601. Notice of Defaults.
Within 30 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default hereunder known to the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections
315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) the Trustee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
therein or thereby in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence of the Trustee;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document; provided, that the Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may deem fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers;
(i) the Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company,
except as otherwise provided herein; and
(j) money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law, except as otherwise
provided herein.
Section 603. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section 604. Trustee and Agents May Hold Securities;
Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Trust Indenture Act Sections 310 and 311, may
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otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Security Registrar or such other agent.
Section 605. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee may invest all
moneys received by the Trustee, until used or applied as herein provided, in
Temporary Cash Investments in accordance with the written directions of the
Company. The Trustee shall not be liable for any losses incurred in connection
with any investments made in accordance with this Section 605, unless the
Trustee acted with gross negligence or in bad faith. With respect to any losses
on investments made under this Section 605, the Company is liable for the full
extent of any such loss.
Section 606. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation for all
services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) set forth
in a letter agreement executed by the Company and the Trustee, as such agreement
may be amended or supplemented, and the Company covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence or bad faith on
such Trustee's part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and such Trustee's
duties hereunder, including enforcement of this Indenture and also including any
liability which the Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental charge, and the costs and
expenses of defending itself against or investigating any claim of liability
(whether asserted by any Holder, the Company or any other Person) in connection
with the exercise or performance of any of its powers or duties under this
Indenture. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecesso Trustee for expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture.
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All payments and reimbursements pursuant to this Section 606
shall be made with interest at the rate borne by the Securities.
As security for the performance of the obligations of the
Company under this Section 606, the Trustee shall have a Lien prior to the
Securities upon all property and funds held or collected by the Trustee, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of any
amounts due under this Section 606 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Securities may be so
subordinate), and the Securities shall be subordinate to the Trustee's right to
receive such payment.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $250,000,000, to the
extent there is an institution eligible and willing to serve. The Trustee shall
be a participant in the Depository Trust Company and FAST distribution systems.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. The Corporate Trust Office shall initially be located at First Union
National Bank of Maryland, 901 East Cary Street, Richmond, Virginia 23219.
Section 609. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee under
Section 610.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors of the Company, a copy of which shall be delivered to the
resigning Trustee and a copy to the successor trustee. If an instrument of
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acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor trustee and supersede the successor trustee
appointed by the Company. If no successor trustee shall have been so appointed
by the Company or the Holders of the Securities and accepted appointment in the
manner hereinafter
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provided, the Holder of any Security who has been a bona fide Holder for at
least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 610. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges then unpaid, such retiring
Trustee shall, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
Trustee or such successor trustee to secure any amounts then due such Trustee
pursuant to the provisions of Section 606.
No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 610 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Sixth and
shall have a combined capital and surplus of at least $250,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 608.
Upon acceptance of appointment by any successor trustee as
provided in this Section 610, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 609. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
Section 611. Merger, Conversion, Consolidation or Succession
to Business.
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Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under Trust Indenture Act
Section 310(a) and this Article Sixth and shall have a combined capital and
surplus of at least $250,000,000 and have a Corporate Trust Office or an agent
selected in accordance with Section 608 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 612. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to the Trust Indenture Act Section 311(a) to the
extent indicated therein.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
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(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities, the Trustee shall transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, as provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and to the extent required by Trust
Indenture Act Section 313(a).
Section 704. Reports by Company and Guarantors.
The Company and any Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or
any Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company or any Guarantor may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or any
Guarantor, as the case may be, is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
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(b) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance by
the Company or any Guarantor, as the case may be, with the conditions and
covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit or cause to be transmitted by mail to all
Holders, as their names and addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to by filed by the Company or any
Guarantor, as the case may be, pursuant to Subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Company or Any Guarantor May Consolidate, etc.,
Only on Certain Terms.
(a) The Company shall not, in a single transaction or through
a series of related transactions, consolidate with or merge with or into any
other Person or sell, assign, convey, transfer or lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person or group of affiliated Persons, or permit any of its Subsidiaries to
enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposal of all or substantially all of the properties and
assets of the Company and its Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (1) the Company shall be the continuing
corporation, or (2) the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company
and its Subsidiaries on a Consolidated basis (the "Surviving
Entity") shall be a corporation duly organized and validly
existing under the laws of the United States of America, any
state thereof or the District of Columbia and such Person
assumes, by a supplemental indenture in a form reasonably
satisfactory to the Trustee, all the obligations of the
Company under the Securities and this Indenture, and this
Indenture shall remain in full force and effect;
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(ii) immediately before and immediately after giving
effect to such transaction, no Default or Event of Default
shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis, the Consolidated Net Worth
of the Company (or the Surviving Entity if the Company is not
the continuing obligor under this Indenture) is equal to or
greater than the Consolidated Net Worth of the Company
immediately prior to such transaction;
(iv) immediately before and immediately after giving
effect to such transaction on a pro forma basis (on the
assumption that the transaction occurred on the first day of
the four-quarter period immediately prior to the consummation
of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma
calculation), the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture)
could incur $1.00 of additional Indebtedness under Section
1008 (other than Permitted Indebtedness);
(v) each Guarantor, if any, unless it is the other
party to the transactions described above, shall have by
supplemental indenture confirmed that its Guarantee shall
apply to such Person's obligations under this Indenture and
the Securities;
(vi) if any of the property or assets of the Company
or any of its Subsidiaries would thereupon become subject to
any Lien, the provisions of Section 1012 are complied with;
and
(vii) the Company or the Surviving Entity shall have
delivered, or caused to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, transfer, sale,
assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with this
Indenture and that all conditions precedent herein provided
for relating to such transaction have been complied with.
(b) Each Guarantor shall not, and the Company shall not permit
a Guarantor to, in a single transaction or through a series of related
transactions merge or consolidate with or into any other corporation (other than
the Company or any other Guarantor) or other entity, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets on a Consolidated basis to any entity (other than the
Company or any other Guarantor) unless at the time and after giving effect
thereto:
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(i) either (1) such Guarantor shall be the continuing
corporation or (2) the entity (if other than such Guarantor)
formed by such consolidation or into which such Guarantor is
merged or the entity which acquires by sale, assignment,
conveyance, transfer, lease or disposition the properties and
assets of such Guarantor shall be a corporation duly organized
and validly existing under the laws of the United States, any
state thereof or the District of Columbia and shall expressly
assume by an indenture supplemental hereto, executed and
delivered to the Trustee, in a form reasonably satisfactory to
the Trustee, all the obligations of such Guarantor under its
Guarantees and this Indenture;
(ii) immediately before and immediately after giving
effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and
(iii) such Guarantor shall have delivered to the
Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or disposition and
such supplemental indenture comply with this Indenture, and
thereafter all obligations of the predecessor shall terminate.
The provisions of this Section 801(b) shall not apply to any transaction
(including any Asset Sale made in accordance with Section 1013) with respect to
any Guarantor if the Guarantee of such Guarantor is released in connection with
such transaction in accordance with Section 1014(c).
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company or any Guarantor in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
or such Guarantor, as the case may be, is merged or the successor Person to
which such sale, assignment, conveyance, transfer, lease or disposition 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, the
Securities and/or such Guarantee, as the case may be, with the same effect as if
such successor had been named as the Company or such Guarantor, as the case may
be, herein, in the Securities and/or in such Guarantee, as the case may be. When
a successor assumes all the obligations of its predecessor under this Indenture,
the Securities or a Guarantee, as the case may be, the predecessor shall be
released from those obligations; provided that in the case of a transfer by
lease, the predecessor shall not be released from the payment of principal and
interest on the Securities or a Guarantee, as the case may be.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without
Consent of Holders.
Without the consent of any Holders, the Company and the
Guarantors, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto
or agreements or other instruments with respect to any Guarantee, in form and
substance satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, any Guarantor or any other obligor upon the Securities, and the
assumption by any such successor of the covenants of the Company or such
Guarantor or obligor herein and in the Securities and in any Guarantee, in each
case in compliance with the provisions of this Indenture;
(b) to add to the covenants of the Company, any Guarantor or
any other obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company, any Guarantor or
any other obligor upon the Securities, as applicable, herein, in the Securities
or in any Guarantee;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein or in any Guarantee, or to make any other provisions with respect to
matters or questions arising under this Indenture, the Securities or any
Guarantee; provided that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section
1014;
(f) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise; or
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(h) to provide for uncertificated Securities in place of or in
addition to certificated Securities.
Section 902. Supplemental Indentures and Agreements with
Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, each Guarantor, and the Trustee, the Company, and each
Guarantor (if a party thereto) when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee in form and
substance satisfactory to the Trustee for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture, the Securities or any Guarantee; provided, however, that no such
supplemental indenture, agreement or instrument shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount thereof
or the rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date);
(b) amend, change or modify the obligation of the Company to
make and consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 1013 or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 1016, including amending, changing or modifying any
definitions with respect thereto;
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture or with
respect to any Guarantee;
(d) modify any of the provisions of this Section or Sections
513 or 1022, except to increase the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security affected
thereby;
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(e) except as otherwise permitted under Article Eight, consent
to the assignment or transfer by the Company or any Guarantor of any of its
rights and obligations under this Indenture; or
(f) amend or modify any of the provisions of this Indenture
relating to the subordination of the Securities or any Guarantee in any manner
adverse to the Holders of the Securities or any Guarantee.
the written request of the Company and each Guarantor,
accompanied by a copy of a Board Resolution authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall, subject
to Section 903, join with the Company and each Guarantor in the execution of
such supplemental indenture or Guarantee.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
Guarantee or agreement or instrument relating to any Guarantee, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 602 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture, agreement or instrument is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture, agreement or instrument which affects the
Trustee's own rights, duties or immunities under this Indenture, any Guarantee
or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
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Section 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and each Guarantor and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
Section 907. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights
under Articles Twelve and Fourteen, or any definitions or provisions related
thereto, or the Guarantees of any holder of Senior Indebtedness or Guarantor
Senior Indebtedness unless the requisite holders of each issue of Senior
Indebtedness or Guarantor Senior Indebtedness affected thereby shall have
consented to such supplemental indenture.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
Subject to the provisions of Articles Twelve and Fourteen, the
Company will duly and punctually pay the principal of, premium, if any, and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency where Securities
may be presented or surrendered for payment. The Company also will maintain an
office or agency where Securities may be surrendered for registration of
transfer, redemption or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location and any
change in the location of any such offices or agencies. If at any time the
Company shall fail to maintain any such required offices or agencies or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the office of the agent
of the Trustee described above and the Company hereby appoints such agent as its
agent to receive all such presentations, surrenders, notices and demands.
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The Company may from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes, and may from time to time rescind such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company
will, before each due date of the principal of, premium, if any, or interest on
any Securities, deposit with a Paying Agent a sum in same day funds sufficient
to pay the principal, premium, if any, or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or
any Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor,
including each Guarantor, upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee shall serve as the Paying
Agent.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will promptly be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Subsidiary; provided, however, that the Company shall not
be required to preserve any such right or franchise or the corporate existence
of any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any of its assets in compliance with the terms of
this Indenture.
Section 1005. Payment of Taxes and Other Claims.
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The Company will pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company or any
Guarantor to perform its obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any Subsidiary, except for any Lien permitted to
be incurred under Section 1012 if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the
Company or any Guarantor to perform its obligations hereunder; 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 properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the Company)
are being maintained in accordance with generally accepted accounting principles
consistently applied.
Section 1006. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any Subsidiary or used or held for use in the conduct of its business
or the business of any Subsidiary to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be consistent with sound business practice and 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 maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not reasonably expected to have a material adverse effect on the ability of the
Company to perform its obligations hereunder.
Section 1007. Insurance.
The Company will at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
Section 1008. Limitation on Indebtedness.
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(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Indebtedness), except that the Company may
incur Indebtedness and a Guarantor may incur Permitted Subsidiary Indebtedness
if, in each case, the Debt to Operating Cash Flow Ratio of the Company and its
Restricted Subsidiaries at the time of the incurrence of such Indebtedness,
after giving pro forma effect thereto, is (x) on or prior to December 15, 1999,
7:1 or less or (y) after December 15, 1999, 6.5:1 or less.
(b) The foregoing limitation will not apply to the incurrence
of any of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Bank Credit
Agreement in an aggregate principal amount at any one time
outstanding not to exceed $50,000,000 under any revolving
credit facility thereunder;
(ii) Indebtedness of the Company pursuant to the
Securities and Indebtedness of any Guarantor pursuant to a
Guarantee;
(iii) Indebtedness of any Guarantor consisting of a
guarantee of the Company's Indebtedness under the Bank Credit
Agreement;
(iv) Indebtedness of the Company or any Restricted
Subsidiary outstanding on the date of this Indenture and
listed on Schedule I hereto;
(v) Indebtedness of the Company owing to a Restricted
Subsidiary; provided that any Indebtedness of the Company
owing to a Restricted Subsidiary that is not a Guarantor is
made pursuant to an intercompany note in the form attached to
this Indenture as Exhibit B and is subordinated in right of
payment from and after such time as the Securities shall
become due and payable (whether at Stated Maturity,
acceleration or otherwise) to the payment and performance of
the Company's obligations under the Securities; provided,
further, that any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or
transfer to a Wholly Owned Restricted Subsidiary or a pledge
to or for the benefit of the lenders under the Bank Credit
Agreement) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause (v);
(vi) Indebtedness of a Wholly Owned Restricted
Subsidiary owing to the Company or another Wholly Owned
Restricted Subsidiary; provided that, with respect to
Indebtedness owing to a Wholly Owned Subsidiary that is not a
Guarantor, (1) any such Indebtedness is made pursuant to an
intercompany note in the form attached to this Indenture as
Exhibit B and (2) any such Indebtedness
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shall be subordinated in right of payment from and after such
time as the obligations under the Guarantee by such Wholly
Owned Restricted Subsidiary shall become due and payable to
the payment and performance of such Wholly Owned Restricted
Subsidiary's obligations under its Guarantee; provided,
further, that (1) any disposition, pledge or transfer of any
such Indebtedness to a Person (other than a disposition,
pledge or transfer to the Company or a Wholly Owned Restricted
Subsidiary or pledge to or for the benefit of the lenders
under the Bank Credit Agreement) shall be deemed to be an
incurrence of such Indebtedness by the obligor not permitted
by this clause (vi) and (2) any transaction pursuant to which
any Wholly Owned Restricted Subsidiary, which has Indebtedness
owing to the Company or any other Wholly Owned Restricted
Subsidiary, ceases to be a Wholly Owned Restricted Subsidiary
shall be deemed to be the incurrence of Indebtedness by such
Wholly Owned Restricted Subsidiary that is not permitted by
this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in
accordance with the provisions of Section 1014;
(viii) obligations of the Company entered into in the
ordinary course of business pursuant to Interest Rate
Agreements designed to protect the Company against
fluctuations in interest rates in respect of Indebtedness of
the Company, as long as such obligations at the time incurred
do not exceed the aggregate principal amount of such
Indebtedness then outstanding or in good faith anticipated to
be outstanding within 90 days of such incurrence;
(ix) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively, a
"refinancing") of any Indebtedness described in clauses (ii),
(iii), (iv) and (v) above, including any successive
refinancings so long as the aggregate principal amount of
Indebtedness represented thereby is not increased by such
refinancing plus the lesser of (I) the stated amount of any
premium, interest or other payment required to be paid in
connection with such a refinancing pursuant to the terms of
the Indebtedness being refinanced or (II) the amount of
premium, interest or other payment actually paid at such time
to refinance the Indebtedness, plus, in either case, the
amount of expenses of the Company incurred in connection with
such refinancing and, in the case of Pari Passu or
Subordinated Indebtedness, such refinancing does not reduce
the Average Life to Stated Maturity or the Stated Maturity of
such Indebtedness; and
(x) Indebtedness of the Company in addition to that
described in clauses (i) through (ix) above, and any renewals,
extensions, substitutions, refinancings, or replacements of
such Indebtedness, so long as the aggregate principal amount
of all such Indebtedness shall not exceed $10,000,000.
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Section 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any of the Company's Equity
Interests (other than dividends or distributions payable
solely in its Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire
for value, directly or indirectly, any Equity Interest of the
Company or any Affiliate thereof (except Equity Interests held
by the Company or a Wholly Owned Restricted Subsidiary);
(iii) make any principal payment on, or repurchase,
redeem, defease, retire or otherwise acquire for value, prior
to any scheduled principal payment, sinking fund or maturity,
any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on
any Equity Interests of any Subsidiary to any Person (other
than the Company or any of its Wholly Owned Restricted
Subsidiaries);
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate (other than a Wholly Owned
Restricted Subsidiary of the Company); or
(vi) make any Investment in any Person (other than
any Permitted Investments)
(any of the foregoing payments described in clauses (i) through (vi), other than
any such action that is a Permitted Payment, collectively, "Restricted
Payments") unless after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution), (1) no Default or Event of Default shall have
occurred and be continuing and such Restricted Payment shall not be an event
which is, or after notice or lapse of time or both, would be, an "event of
default" under the terms of any Indebtedness of the Company or its Restricted
Subsidiaries; and (2) the aggregate amount of all such Restricted Payments
declared or made after the date of this Indenture does not exceed the sum of:
(A) an amount equal to the Company's Cumulative
Operating Cash Flow less 1.4 times the Company's Cumulative
Consolidated Interest Expense; and
(B) the aggregate Net Cash Proceeds received after
December 9, 1993 by the Company from capital contributions
(other than from a Subsidiary) or from the issuance or sale
(other than to any of its Subsidiaries) of its Qualified
Equity Interests (except, in each
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case, to the extent such proceeds are used to purchase, redeem or otherwise
retire Equity Interests or Subordinated Indebtedness as set forth below).
(b) Notwithstanding the foregoing, and in the case of clauses
(ii) through (v) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (i) through (v) being referred to as "Permitted Payments"):
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of
declaration such payment would be permitted by the provisions
of paragraph (a) of this Section and such payment shall be
deemed to have been paid on such date of declaration for
purposes of the calculation required by paragraph (a) of this
Section;
(ii) any transaction with an officer or director of
the Company entered into in the ordinary course of business
(including compensation or employee benefit arrangements with
any officer or director of the Company);
(iii) the repurchase, redemption, or other
acquisition or retirement of any Equity Interests of the
Company in exchange for (including any such exchange pursuant
to the exercise of a conversion right or privilege in
connection therewith cash is paid in lieu of the issuance of
fractional shares or scrip), or out of the Net Cash Proceeds
of, a substantially concurrent issue and sale for cash (other
than to a Subsidiary) of other Qualified Equity Interests of
the Company; provided that the Net Cash Proceeds from the
issuance of such Qualified Equity Interests are excluded from
clause (2)(B) of paragraph (a) of this Section;
(iv) any repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any Subordinated Indebtedness in exchange for, or
out of the net proceeds of, a substantially concurrent
issuance and sale for cash (other than to any Subsidiary of
the Company) of any Qualified Equity Interests of the Company,
provided that the Net Cash Proceeds from the issuance of such
shares of Qualified Equity Interests are excluded from clause
(2)(B) of paragraph (a) of this Section; and
(v) the repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any Subordinated Indebtedness (other than
Disqualified Equity Interests) (a "refinancing") through the
issuance of new Subordinated Indebtedness of the Company, as
the case may be, provided that any such new Indebtedness (1)
shall be in a principal amount that does not exceed the
principal amount so refinanced or, if such Subordinated
Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration or
acceleration thereof, then such lesser amount as of
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the date of determination), plus the lesser of (I) the stated
amount of any premium, interest or other payment required to
be paid in connection with such a refinancing pursuant to the
terms of the Indebtedness being refinanced or (II) the amount
of premium, interest or other payment actually paid at such
time to refinance the Indebtedness, plus, in either case, the
amount of expenses of the Company incurred in connection with
such refinancing; (2) has an Average Life to Stated Maturity
greater than the remaining Average Life to Stated Maturity of
the Securities; (3) has a Stated Maturity for its final
scheduled principal payment later than the Stated Maturity for
the final scheduled principal payment of the Securities; and
(4) is expressly subordinated in right of payment to the
Securities at least to the same extent as the Indebtedness to
be refinanced.
Section 1010. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate of the Company (other than the Company or a Wholly
Owned Restricted Subsidiary) unless (a) such transaction or series of
transactions is in writing on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than would be available in a
comparable transaction in arm's-length dealings with an unrelated third party
and (b) (i) with respect to any transaction or series of transactions involving
aggregate payments in excess of $1,000,000, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (a) above and such transaction or series of
related transactions has been approved by a majority of the members of the Board
of Directors of the Company (and approved by a majority of Independent Directors
or, in the event there is only one Independent Director, by such Independent
Director) and (ii) with respect to any transaction or series of transactions
involving aggregate payments in excess of $5,000,000, an opinion as to the
fairness to the Company or such Restricted Subsidiary from a financial point of
view issued by an investment banking or appraisal firm of national standing.
Notwithstanding the foregoing, this provision will not apply to (A) any
transaction with an officer or director of the Company entered into in the
ordinary course of business (including compensation or employee benefit
arrangements with any officer or director of the Company), (B) any transaction
entered into by the Company or one of its Wholly Owned Restricted Subsidiaries
with a Wholly Owned Restricted Subsidiary of the Company, and (C) transactions
in existence on the date of this Indenture.
Section 1011. Limitation on Senior Subordinated Indebtedness.
The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise in
any manner become directly or indirectly liable for or with respect to or
otherwise permit to exist any Indebtedness that is subordinate in right of
payment to any Indebtedness of the Company or such Guarantor, as the
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case may be, unless such Indebtedness is also pari passu with the Securities or
the Guarantee of such Guarantor, or subordinate in right of payment to the
Securities or such Guarantee to at least the same extent as the Securities or
such Guarantee are subordinate in right of payment to Senior Indebtedness or
Guarantor Senior Indebtedness, as the case may be, as set forth in this
Indenture.
Section 1012. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, affirm or suffer to exist
any Lien of any kind upon any of its property or assets (including any
intercompany notes), now owned or acquired after the date of this Indenture, or
any income or profits therefrom, except if the Securities are directly secured
equally and ratably with (or prior to in the case of Liens with respect to
Subordinated Indebtedness) the obligation or liability secured by such Lien,
excluding, however, from the operation of the foregoing any of the following:
(a) any Lien existing as of the date of this Indenture and
listed on Schedule II hereto;
(b) any Lien arising by reason of (i) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;
(ii) taxes not yet delinquent or which are being contested in good faith; (iii)
security for payment of workers' compensation or other insurance; (iv) good
faith deposits in connection with tenders, leases, contracts (other than
contracts for the payment of money); (v) zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Subsidiary or
the value of such property for the purpose of such business; (vi) deposits to
secure public or statutory obligations, or in lieu of surety or appeal bonds;
(vii) certain surveys, exceptions, title defects, encumbrances, easements,
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph or telephone lines and other similar purposes or zoning or other
restrictions as to the use of real property not interfering with the ordinary
conduct of the business of the Company or any of its Subsidiaries; or (viii)
operation of law in favor of mechanics, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums which are not
yet delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof;
(c) any Lien now or hereafter existing on property of the
Company or any of its Restricted Subsidiaries securing Senior Indebtedness or
Guarantor Senior Indebtedness, in
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each case which Indebtedness is permitted under the provisions of Section 1008
and provided that the provisions of Section 1014 are complied with;
(d) any Lien securing Acquired Indebtedness created prior to
(and not created in connection with or in contemplation of) the incurrence of
such Indebtedness by the Company or any Subsidiary, in each case which
Indebtedness is permitted under the provisions of Section 1008; provided that
any such Lien only extends to the assets that were subject to such Lien securing
such Acquired Indebtedness prior to the related transaction by the Company or
its Subsidiaries;
(e) any Lien securing Permitted Subsidiary Indebtedness; and
(f) any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing clauses (a) through (e)
so long as the amount of security is not increased thereby.
Section 1013. Limitation on Sale of Assets.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale
unless (i) at least 80% of the consideration from such Asset Sale is received in
cash and (ii) the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value of the
shares or assets sold (other than in the case of an involuntary Asset Sale, as
determined by the Board of Directors of the Company and evidenced in a Board
Resolution or in connection with an Asset Swap, the Fair Market Value as
determined in writing by a nationally recognized investment banking or appraisal
firm); provided, however that, in the event that the Company or any Restricted
Subsidiary engages in an Asset Sale with any third party and receives in
consideration therefor, or simultaneously with such Asset Sale enters into, a
Local Marketing Agreement with such third party or any affiliate thereof, the
Fair Market Value of such Local Marketing Agreement (as determined in writing by
a nationally recognized investment banking or appraisal firm) shall be deemed
cash and considered when determining whether such Asset Sale complies with the
foregoing clauses (i) and (ii). Notwithstanding the foregoing, clause (i) of the
preceding sentence shall not be applicable to any Asset Swap.
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale are not required to be applied to repay permanently any Senior Indebtedness
then outstanding as required by the terms thereof, or the Company determines not
to apply such Net Cash Proceeds to the permanent prepayment of such Senior
Indebtedness or if no such Senior Indebtedness is then outstanding, then the
Company may, within 12 months of the Asset Sale, invest the Net Cash Proceeds in
properties and assets that (as determined by the Board of Directors) replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets that will be used in the businesses of the Company or its Restricted
Subsidiaries existing on the date of this Indenture or reasonably related
thereto. The amount of such Net Cash Proceeds neither used
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to permanently repay or prepay Senior Indebtedness nor used or invested as set
forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company shall apply the Excess Proceeds to the repayment
of the Securities and any Pari Passu Indebtedness required to be repurchased
under the instrument governing such Pari Passu Indebtedness as follows: (a) the
Company shall make an offer to purchase (an "Offer") from all Holders of the
Securities in accordance with the procedures set forth in this Indenture in the
maximum principal amount (expressed as a multiple of $1,000) of Securities that
may be purchased out of an amount (the "Security Amount") equal to the product
of such Excess Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities, and the denominator of which is
the sum of the outstanding principal amount of the Securities and such Pari
Passu Indebtedness (subject to proration in the event such amount is less than
the aggregate Offered Price of all Securities tendered) and (b) to the extent
required by such Pari Passu Indebtedness to permanently reduce the principal
amount of such Pari Passu Indebtedness, the Company shall make an offer to
purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the excess of
the Excess Proceeds over the Security Amount; provided that in no event shall
the Pari Passu Debt Amount exceed the principal amount of such Pari Passu
Indebtedness plus the amount of any premium required to be paid to repurchase
such Pari Passu Indebtedness. The offer price shall be payable in cash in an
amount equal to 100% of the principal amount of the Securities plus accrued and
unpaid interest, if any, to the date (the "Offer Date") such Offer is
consummated (the "Offered Price"), in accordance with the procedures set forth
in this Indenture. To the extent that the aggregate Offered Price of the
Securities tendered pursuant to the Offer is less than the Security Amount
relating thereto or the aggregate amount of Pari Passu Indebtedness that is
purchased is less than the Pari Passu Debt Amount (the amount of such shortfall,
if any, constituting a "Deficiency"), the Company shall use such Deficiency in
the business of the Company and its Restricted Subsidiaries. Upon completion of
the purchase of all the Securities tendered pursuant to an Offer and repurchase
of the Pari Passu Indebtedness pursuant to a Pari Passu Offer, the amount of
Excess Proceeds, if any, shall be reset at zero.
(d) Whenever the Excess Proceeds received by the Company
exceed $5,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the depositary or a Paying Agent of
the amount required to purchase the Securities or Pari Passu Indebtedness
tendered in an Offer or a Pari Passu Offer, (ii) delivery by the Company of the
Offered Price to the Holders of the Securities or Pari Passu Indebtedness
tendered in an Offer or a Pari Passu Offer and (iii) application, as set forth
above, of Excess Proceeds in the business of the Company and its Restricted
Subsidiaries. Such Excess Proceeds may be invested in Temporary Cash
Investments, provided that the maturity date of any such investment made after
the amount of Excess Proceeds exceeds $5,000,000 shall not be later than the
Offer Date. The Company shall be entitled to any interest or dividends accrued,
earned or paid on such Temporary Cash Investments, provided that the Company
shall not withdraw such interest from the separate account if an Event of
Default has occurred and is continuing.
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(e) If the Company becomes obligated to make an Offer pursuant
to clause (c) above, the Securities shall be purchased by the Company, at the
option of the Holder thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 45 days and not later than 60 days
from the date the notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the Security Amount is less than the
aggregate Offered Price of all Securities tendered.
(f) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing under (i) Indebtedness as in effect on the
date of this Indenture and listed on Schedule I hereto as such Indebtedness may
be refinanced from time to time, provided that such restrictions are no less
favorable to the Holders of Securities than those existing on the date of this
Indenture or (ii) any Senior Indebtedness and any Guarantor Senior Indebtedness)
that would materially impair the ability of the Company to make an Offer to
purchase the Securities or, if such Offer is made, to pay for the Securities
tendered for purchase.
(h) Subject to paragraph (f) above, within 30 days after the
date on which the amount of Excess Proceeds equals or exceeds $5,000,000, the
Company shall send or cause to be sent by first-class mail, postage prepaid, to
the Trustee and to each Holder of the Securities, at his address appearing in
the Security Register, a notice stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's
Securities at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to
have its Securities purchased in accordance with paragraph (c)
of this Section; and
(4) (i) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of
the Company, the most recent subsequently filed Quarterly
Report on Form 10-Q and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Sales otherwise described in
the offering materials (or corresponding successor reports)(or
in the event the Company is not required to prepare any of the
foregoing Forms, the comparable information required pursuant
to Section 1020), (ii) a description of material developments
in
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the Company's business subsequent to the date of the latest of
such Reports, (iii) if material, appropriate pro forma
financial information, and (iv) such other information, if
any, concerning the business of the Company which the Company
in good faith believes will enable such Holders to make an
informed investment decision.
(i) Holders electing to have Securities purchased hereunder
will be required to surrender such Securities at the address specified in the
notice at least three Business Days prior to the Offer Date. Holders will be
entitled to withdraw their election to have their Securities purchased pursuant
to this Section 1013 if the Company receives, not later than three Business Days
prior to the Offer Date, a telegram, telex, facsimile transmission or letter
setting forth (1) the name of the Holder, (2) the certificate number of the
Security in respect of which such notice of withdrawal is being submitted, (3)
the principal amount of the Security (which shall be $1,000 or an integral
multiple thereof) delivered for purchase by the Holder as to which his election
is to be withdrawn, (4) a statement that such Holder is withdrawing his election
to have such principal amount of such Security purchased, and (5) the principal
amount, if any, of such Security (which shall be $1,000 or an integral multiple
thereof) that remains subject to the original notice of the Offer and that has
been or will be delivered for purchase by the Company.
(j) The Company shall (i) not later than the Offer Date,
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (New York City time) on the Offer Date,
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the Offer Date) sufficient to pay the aggregate Offered
Price of all the Securities or portions thereof which are to be purchased on
that date and (iii) not later than the Offer Date, deliver to the Paying Agent
(if other than the Company) an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company.
Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Offered Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, the Trustee shall hold such
excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Offer Date the Trustee
shall return any such excess to the Company together with interest or dividends,
if any, thereon.
(k) Securities to be purchased shall, on the Offer Date,
become due and payable at the Offered Price and from and after such date (unless
the Company shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such Holder
promptly following the later of the Offer Date and the time of
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delivery of such Security to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner required. Upon surrender of any
such Security for purchase in accordance with the foregoing provisions, such
Security shall be paid by the Company at the Offered Price; provided, however,
that installments of interest whose Stated Maturity is on or prior to the Offer
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 309; provided, further,
that Securities to be purchased are subject to proration in the event the Excess
Proceeds are less than the aggregate Offered Price of all Securities tendered
for purchase, with such adjustments as may be appropriate by the Trustee so that
only Securities in denominations of $1,000 or integral multiples thereof, shall
be purchased. If any Security tendered for purchase shall not be so paid upon
surrender thereof by deposit of funds with the Trustee or a Paying Agent in
accordance with paragraph (j) above, the principal thereof shall, until paid,
bear interest from the Offer Date at the rate borne by such Security. Any
Security that is to be purchased only in part shall be surrendered to a Paying
Agent at the office of such Paying Agent (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so surrendered
that is not purchased.
Section 1014. Limitation on Issuances of Guarantees of and
Pledges for Indebtedness.
(a) The Company shall not permit any Restricted Subsidiary,
other than the Guarantors, directly or indirectly, to secure the payment of any
Senior Indebtedness of the Company and the Company will not, and will not permit
any Restricted Subsidiary to, pledge any intercompany notes representing
obligations of any Restricted Subsidiary (other than the Guarantors) to secure
the payment of any Senior Indebtedness unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a guarantee of payment of the Securities by such Restricted
Subsidiary, which guarantee shall be on the same terms as the guarantee of the
Senior Indebtedness (if a guarantee of Senior Indebtedness is granted by any
such Restricted Subsidiary) except that the guarantee of the Securities need not
be secured and shall be subordinated to the claims against such Restricted
Subsidiary in respect of Senior Indebtedness to the same extent as the
Securities are subordinated to Senior Indebtedness of the Company under this
Indenture.
(b) The Company shall not permit any Restricted Subsidiary,
other than the Guarantors, directly or indirectly, to guarantee, assume or in
any other manner become liable with respect to any Indebtedness of the Company
unless such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a
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guarantee of the Securities on the same terms as the guarantee of such
Indebtedness except that if the Securities are subordinated in right of payment
to such Indebtedness, the guarantee under the supplemental indenture shall be
subordinated to the guarantee of such Indebtedness to the same extent as the
Securities are subordinated to such Indebtedness under this Indenture.
(c) Each guarantee created pursuant to the provisions
described in the foregoing paragraph is referred to as a "Guarantee" and the
issuer of each such Guarantee is referred to as a "Guarantor." Notwithstanding
the foregoing, any Guarantee by a Restricted Subsidiary of the Securities shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Equity Interest in, or all or
substantially all the assets of, such Restricted Subsidiary, which is in
compliance with this Indenture or (ii) (with respect to any Guarantees created
after the date of this Indenture) the release by the holders of the Indebtedness
of the Company described in clauses (a) and (b) above of their security interest
or their guarantee by such Restricted Subsidiary (including any deemed release
upon payment in full of all obligations under such Indebtedness), at a time when
(A) no other Indebtedness of the Company has been secured or guaranteed by such
Restricted Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is secured or guaranteed by such Restricted Subsidiary also
release their security interest in, or guarantee by, such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness).
Section 1015. Restriction on Transfer of Assets.
The Company and the Guarantors shall not sell, convey,
transfer or otherwise dispose of their respective assets or property to any of
the Company's Restricted Subsidiaries (other than any Guarantor), except for
sales, conveyances, transfers or other dispositions made in the ordinary course
of business and except for capital contributions to any Restricted Subsidiary,
the only material assets of which are broadcast licenses. For purposes of this
provision, any sale, conveyance, transfer, lease or other disposition of
property or assets, having a Fair Market Value in excess of (a) $1,000,000 for
any sale, conveyance, transfer, lease or disposition or series of related sales,
conveyances, transfers, leases and dispositions and (b) $5,000,000 in the
aggregate for all such sales, conveyances, transfers, leases or dispositions in
any fiscal year of the Company shall not be considered "in the ordinary course
of business."
Section 1016. Purchase of Securities upon a Change of Control.
(a) If a Change of Control shall occur at any time, then each
Holder of Securities shall have the right to require that the Company purchase
such Holder's Securities in whole or in part in integral multiples of $1,000, at
a purchase price (the "Change of Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Securities, plus accrued and
unpaid interest, if any, to the date of purchase (the "Change of Control
Purchase Date"), pursuant to the offer described in subsection (c) of this
Section (the "Change of Control
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Offer") and in accordance with the procedures set forth in Subsections (b), (c),
(d) and (e) of this Section.
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice (a "Change of
Control Purchase Notice") of such Change of Control to each Holder by
first-class mail, postage prepaid, at his address appearing in the Security
Register stating or including:
(1) that a Change of Control has occurred, the date
of such event, and that such Holder has the right to require
the Company to repurchase such Holder's Securities at the
Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding
such Change of Control (including but not limited to
information with respect to pro forma historical income, cash
flow and capitalization after giving effect to such Change of
Control);
(3) (i) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of
the Company, the most recent subsequently filed Quarterly
Report on Form 10-Q, as applicable, and any Current Report on
Form 8-K of the Company filed subsequent to such Quarterly
Report (or in the event the Company is not required to prepare
any of the foregoing Forms, the comparable information
required to be prepared by the Company and any Guarantor
pursuant to Section 1020), (ii) a description of material
developments in the Company's business subsequent to the date
of the latest of such reports and (iii) such other
information, if any, concerning the business of the Company
which the Company in good faith believes will enable such
Holders to make an informed investment decision;
(4) that the Change of Control Offer is being made
pursuant to this Section 1016(a) and that all Securities
properly tendered pursuant to the Change of Control Offer will
be accepted for payment at the Change of Control Purchase
Price;
(5) the Change of Control Purchase Date which shall
be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed, or such later date
as is necessary to comply with requirements under the Exchange
Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and
the offices or agencies referred to in Section 1002;
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(8) that Securities must be surrendered on or prior
to the Change of Control Purchase Date to the Paying Agent at
the office of the Paying Agent or to an office or agency
referred to in Section 1002 to collect payment;
(9) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn
will be paid promptly following the Change of Control Offer
Purchase Date;
(10) the procedures for withdrawing a tender of
Securities and Change of Control Purchase Notice;
(11) that any Security not tendered will continue to
accrue interest; and
(12) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Security accepted
for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase
Date.
(c) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
Company at the Change of Control Purchase Price; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Change of
Control Purchase Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section 309. If any
Security tendered for purchase shall not be so paid upon surrender thereof, the
principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Change of Control Purchase Date at the rate borne by such
Security. Holders electing to have Securities purchased will be required to
surrender such Securities to the Paying Agent at the address specified in the
Change of Control Purchase Notice at least two Business Days prior to the Change
of Control Purchase Date. Any Security that is to be purchased only in part
shall be surrendered to a Paying Agent at the office of such Paying Agent (with,
if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security Registrar or the Trustee, as the case may be, duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, one or more new
Securities of any authorized denomination as requested by such Holder in an
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased.
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(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) not later than 11:00 a.m. (New
York City time) on the Change of Control Purchase Date, deposit with the Paying
Agent an amount of cash sufficient to pay the aggregate Change of Control
Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Change of Control Purchase Date and (iii) not later than the
Change of Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Change of Control
Purchase Price of the Securities purchased from each such Holder, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the results of
the Change of Control Offer on the Change of Control Purchase Date. For purposes
of this Section 1016, the Company shall choose a Paying Agent which shall not be
the Company.
(e) A Change of Control Purchase Notice may be withdrawn
before or after delivery by the Holder to the Paying Agent at the office of the
Paying Agent of the Security to which such Change of Control Purchase Notice
relates, by means of a written notice of withdrawal delivered by the Holder to
the Paying Agent at the office of the Paying Agent or to the office or agency
referred to in Section 1002 to which the related Change of Control Purchase
Notice was delivered not later than three Business Days prior to the Change of
Control Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in
respect of which such notice of withdrawal is being
submitted;
(3) the principal amount of the Security (which shall
be $1,000 or an integral multiple thereof) delivered for
purchase by the Holder as to which such notice of withdrawal
is being submitted; and
(4) the principal amount, if any, of such Security
(which shall be $1,000 or an integral multiple thereof) that
remains subject to the original Change of Control Purchase
Notice and that has been or will be delivered for purchase by
the Company.
(f) Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the Change
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of Control Purchase Price; provided, however, that (x) to the extent that the
aggregate amount of cash deposited by the Company pursuant to clause (ii) of
paragraph (d) above exceeds the aggregate Change of Control Purchase Price of
the Securities or portions thereof to be purchased, then the Trustee shall hold
such excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Change of Control
Purchase Date the Trustee shall return any such excess to the Company together
with interest, if any, thereon.
(g) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer.
(h) The Company shall not, and shall not permit any Subsidiary
to, create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Indenture) that would materially impair the ability of the Company to make a
Change of Control Offer to purchase the Securities or, if such Change of Control
Offer is made, to pay for the Securities tendered for purchase.
Section 1017. Limitation on Subsidiary Equity Interests.
The Company shall not permit any Restricted Subsidiary of the
Company to issue any Equity Interests, except for (a) Equity Interests issued to
and held by the Company or a Wholly Owned Restricted Subsidiary, and (b) Equity
Interests issued by a Person prior to the time (A) such Person becomes a
Restricted Subsidiary, (B) such Person merges with or into a Restricted
Subsidiary or (C) a Restricted Subsidiary merges with or into such Person;
provided that such Equity Interests were not issued or incurred by such Person
in anticipation of the type of transaction contemplated by subclause (A), (B) or
(C).
Section 1018. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (i) pay dividends or make
any other distribution on its Equity Interests, (ii) pay any Indebtedness owed
to the Company or a Restricted Subsidiary of the Company, (iii) make any
Investment in the Company or a Restricted Subsidiary of the Company or (iv)
transfer any of its properties or assets to the Company or any Restricted
Subsidiary, except (a) any encumbrance or restriction pursuant to an agreement
in effect on the date of this Indenture and listed on Schedule III hereto; (b)
any encumbrance or restriction, with respect to a Restricted Subsidiary that is
not a Subsidiary of the Company on the date of this Indenture, in existence at
the time such Person becomes a Restricted Subsidiary of the Company and not
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary; (c) any encumbrance or
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restriction existing under any agreement that extends, renews, refinances or
replaces the agreements containing the encumbrances or restrictions in the
foregoing clauses (a) and (b), or in this clause (c), provided that the terms
and conditions of any such encumbrances or restrictions are not materially less
favorable to the Holders of the Securities than those under or pursuant to the
agreement evidencing the Indebtedness so extended, renewed, refinanced or
replaced or are not more restrictive than those set forth in this Indenture; and
(d) any encumbrance or restriction created pursuant to an asset sale agreement,
stock sale agreement or similar instrument pursuant to which an Asset Sale
permitted under Section 1013 is to be consummated, so long as such restriction
or encumbrance shall be effective only for a period from the execution and
delivery of such agreement or instrument through a termination date not later
than 270 days after such execution and delivery.
Section 1019. Limitation on Unrestricted Subsidiaries.
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to make, any Investments in Unrestricted Subsidiaries
if, at the time thereof, the aggregate amount of such Investments would exceed
the amount of Restricted Payments then permitted to be made pursuant to Section
1009. Any Investments in Unrestricted Subsidiaries permitted to be made pursuant
to this covenant (i) will be treated as the payment of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company and (ii) may
be made in cash or property.
Section 1020. Provision of Financial Statements.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, the Company shall, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Sections 13(a) or 15(d) if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost.
Section 1021. Statement by Officers as to Default.
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(a) The Company will deliver to the Trustee, on or before a
date not more than 60 days after the end of each fiscal quarter and not more
than 120 days after the end of each fiscal year of the Company ending after the
date hereof, a written statement signed by two executive officers of the
Company, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating
whether or not, after a review of the activities of the Company during such year
or such quarter and of the Company's performance under this Indenture, to the
best knowledge, based on such review, of the signers thereof, the Company has
fulfilled all its obligations and is in compliance with all conditions and
covenants under this Indenture throughout such year or quarter, as the case may
be, and, if there has been a Default specifying each Default and the nature and
status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default (other than
with respect to Indebtedness in the principal amount of less than $5,000,000),
the Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an Officers'
Certificate specifying such Default, Event of Default, notice or other action
within five Business Days of its occurrence.
Section 1022. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1006 through 1012, 1014, 1015
and 1017 through 1020, if, before or after the time for such compliance, the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE XI
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REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
(a) The Securities may be redeemed at the election of the
Company, in whole or in part, at any time on or after July 15, 2002, subject to
the conditions, and at the Redemption Price, specified in the form of Security,
together with accrued and unpaid interest, if any, to the Redemption Date.
(b) At any time on or prior to July 15, 2000, the Company may
redeem up to 25% of the original principal amount of Securities with the net
proceeds of a Public Equity Offering of the Company subject to the conditions,
and at the Redemption Price, specified in the form of Security, together with
accrued and unpaid interest, if any, to the Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata, by lot or
such other method as the Trustee shall deem fair and reasonable, and the amounts
to be redeemed may be equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed
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or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security, new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice to any Holder of any
Security designated for redemption as a whole or
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in part, or any defect in any such notice, shall not affect the validity of the
proceedings for the redemption of any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in same day funds sufficient to pay the Redemption Price of and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
When the Redemption Date falls on an Interest Payment Date, payments of interest
due on such date are to be paid as provided hereunder as if no such redemption
were occurring.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
Section 1108. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange
for, the unredeemed portion of the principal of the Security so surrendered that
is not redeemed or purchased.
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ARTICLE XII
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on each and all of the Securities and all other Indenture
Obligations are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full, in cash or
Cash Equivalents or in any other form as acceptable to the holders of Senior
Indebtedness, of all Senior Indebtedness.
This Article Twelve shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold Senior Indebtedness; and such provisions are made for the benefit of the
holders of Senior Indebtedness; and such holders are made obligees hereunder and
they or each of them may enforce such provisions.
Section 1202. Payment Over of Proceeds Upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshaling of assets or liabilities of the Company, then
and in any such event:
(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash or Cash
Equivalents or in any other form as acceptable to the holders
of Senior Indebtedness, of all amounts due on or in respect of
all Senior Indebtedness, before the Holders of the Securities
are entitled to receive any payment or distribution of any
kind or character (excluding Permitted Junior Securities) on
account of the principal of, premium, if any, or interest on
the Securities or any other Indenture Obligations; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities (excluding Permitted Junior Securities), by set-off
or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article shall be paid
by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to
the
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holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or Cash Equivalents
or in any other form as acceptable to the Holders of Senior
Indebtedness, of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Security shall have received any payment or distribution of
assets of the Company of any kind or character, whether in
cash, property or securities, in respect of principal,
premium, if any, and interest on the Securities or any other
Indenture Obligations before all Senior Indebtedness is paid
in full, then and in such event such payment or distribution
(excluding Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash or Cash Equivalents or in any
other form as acceptable to the Holders of Senior
Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the sale, assignment, conveyance, transfer, lease or other
disposal of all or substantially all of the Company's properties or assets to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by sale, assignment, conveyance, transfer, lease or other disposal of
all or substantially all of the Company's properties or assets, as the case may
be, shall, as a part of such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposal, comply with the conditions set
forth in Article Eight.
Section 1203. Suspension of Payment When Senior Indebtedness
in Default.
(a) Unless Section 1202 shall be applicable, upon the
occurrence of a Payment Default, no payment (other than any payments previously
made pursuant to the provisions described in Article Four) or distribution of
any assets of the Company of any kind or character (excluding Permitted Junior
Securities) shall be made by the Company on account of principal
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of, premium, if any, or interest on, the Securities or any other Indenture
Obligations or on account of the purchase, redemption, defeasance (whether under
Section 402 or 403) or other acquisition of or in respect of the Securities
unless and until such Payment Default shall have been cured or waived or shall
have ceased to exist or the Designated Senior Indebtedness with respect to which
such Payment Default shall have occurred shall have been discharged or paid in
full in cash or Cash Equivalents or in any other form as acceptable to the
Holders of Senior Indebtedness, after which the Company shall resume making any
and all required payments in respect of the Securities, including any missed
payments.
(b) Unless Section 1202 shall be applicable, upon (1) the
occurrence of a Nonpayment Default and (2) receipt by the Trustee and the
Company from the representative of the holders of Designated Senior Indebtedness
(a "Senior Representative") of written notice of such occurrence, no payment
(other than any payments previously made pursuant to the provisions described in
Article Four) or distribution of any assets of the Company of any kind or
character (excluding Permitted Junior Securities) shall be made by the Company
on account of any principal of, premium, if any, or interest on, the Securities
or any other Indenture Obligations or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of Securities for a period
("Payment Blockage Period") commencing on the date of receipt by the Trustee of
such notice unless and until the earliest of (subject to any blockage of
payments that may then or thereafter be in effect under subsection (a) of this
Section 1203) (x) 179 days having elapsed since receipt of such written notice
by the Trustee (provided any Designated Senior Indebtedness as to which notice
was given shall theretofore have not been accelerated), (y) the date such
Non-payment Default and all other Non-payment Defaults as to which notice is
also given after such period is initiated shall have been cured or waived or
shall have ceased to exist or the Senior Indebtedness related thereto shall have
been discharged or paid in full in cash or Cash Equivalents or in any other form
as acceptable to the Holders of Senior Indebtedness, or (z) the date on which
such Payment Blockage Period (and all Non-payment Defaults as to which notice is
given after such Payment Blockage Period is initiated) shall have been
terminated by written notice to the Company or the Trustee from the Senior
Representative or the holders of at least a majority of the Designated Senior
Indebtedness that initiated such Payment Blockage Period, after which, in each
such case, the Company shall resume making any and all required payments in
respect of the Securities, including any missed payments. Notwithstanding any
other provision of this Indenture, in no event shall a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the Company or the
Trustee of the notice referred to in clause (2) of this paragraph (b) (the
"Initial Blockage Period"). Any number of notices of Nonpayment Defaults may be
given during the Initial Blockage Period; provided that during any 365-day
consecutive period only one Payment Blockage Period during which payment of
principal of, or interest on, the Securities may not be made may commence and
the duration of the Payment Blockage Period may not exceed 179 days. No
Non-payment Default with respect to Designated Senior Indebtedness which existed
or was continuing on the date of the commencement of any Payment Blockage Period
will be, or can be, made the basis for the commencement of a second Payment
Blockage Period, whether or not within a period of 365
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consecutive days, unless such default shall have been cured or waived for a
period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to a Senior
Representative of the holders of the Designated Senior Indebtedness or as a
court of competent jurisdiction shall direct.
Section 1204. Payment Permitted if No Default.
Nothing contained in this Article, elsewhere in this Indenture
or in any of the Securities shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payments at any time of principal of,
premium, if any, or interest on the Securities.
Section 1205. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness in
cash or Cash Equivalents or in any other form as acceptable to the holders of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of, premium, if any, and interest on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the
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Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 1202, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder, or (2) under the conditions specified in Section 1203, to prevent
any payment prohibited by such Section or enforce their rights pursuant to
Section 1203(c).
Section 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
Section 1208. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section and notwithstanding any other provision contained herein, the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Company and any other Person;
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provided, however, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity of
the Securities in accordance with the provisions set forth in Article Five or to
pursue any rights or remedies under this Indenture or under applicable laws if
the taking of such action does not otherwise violate the terms of this Article.
Section 1209. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities or other Indenture
Obligations. Notwithstanding the provisions of this Article or any provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from a Senior Representative or any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security or other Indenture Obligations),
then, anything herein contained to the contrary notwithstanding but without
limiting the rights and remedies of the holders of Senior Indebtedness or any
trustee, fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it after such date; nor shall the Trustee be charged
with knowledge of the curing of any such default or the elimination of the act
or condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and the Company by a Person representing
himself to be a Senior Representative or a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a Senior Representative or a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor); provided, however, that failure to give
such notice to the Company shall not affect in any way the ability of the
Trustee to rely on such notice. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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Section 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of 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, provided that the foregoing shall apply only if such
court has been fully apprised of the provisions of this Article.
Section 1211. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 606.
Section 1212. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting under this
Indenture, the term "Trustee" as used in this Article shall in such case (unless
the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1211 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1213. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five and as set forth in this
Indenture or to pursue any rights or remedies hereunder or under applicable law,
subject to the rights, if any, under this Article of the holders, from time to
time, of Senior Indebtedness to receive the cash, property or securities
receivable upon the exercise of such rights or remedies.
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Section 1214. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Article against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the
Trustee shall not be liable to any holder of Senior Indebtedness if it shall
mistakenly in the absence of gross negligence or willful misconduct pay over or
deliver to Holders, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of Securities
herein, rights to payment, including Penalty Interest, and rights to replacement
of stolen, lost or mutilated Securities expressly provided for) and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 308 or (ii) all Securities for whose
payment United States dollars have theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(2) all such Securities not theretofore delivered to
the Trustee for cancellation (x) have become due and payable,
(y) will become due and payable at their Stated Maturity
within one year, or (z) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company or any
Guarantor, in the case of (2)(x),(y) or (z) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
United States dollars sufficient to pay and
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discharge the entire Indebtedness on the Securities not
theretofore delivered to the Trustee for cancellation, for the
principal of, premium, if any, and accrued interest at such
Stated Maturity or Redemption Date;
(b) the Company or any Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company or any Guarantor; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that (i) all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with and (ii) such satisfaction and discharge will not result
in a breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any Guarantor is
a party or by which the Company or any Guarantor is bound.
Opinions of Counsel required to be delivered under this
Section may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and,
if United States dollars shall have been deposited with the Trustee pursuant to
subclause (2) of Subsection (a) of this Section, the obligations of the Trustee
under Section 1302 and the last paragraph of Section 1003 shall survive.
Section 1302. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars deposited with the Trustee pursuant to Section
1301 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the Securities for whose payment such United
States dollars have been deposited with the Trustee.
ARTICLE XIV
GUARANTEE
Section 1401. Guarantors' Guarantee.
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For value received, each of the Guarantors, in accordance with
this Article Fourteen, hereby absolutely, unconditionally and irrevocably
guarantees, jointly and severally, to the Trustee and the Holders, as if the
Guarantors were the principal debtor, the punctual payment and performance when
due of all Indenture Obligations (which for purposes of this Guarantee shall
also be deemed to include all commissions, fees, charges, costs and other
expenses (including reasonable legal fees and disbursements of one counsel in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances)
arising out of or incurred by the Trustee or the Holders in connection with the
enforcement of this Guarantee).
Section 1402. Continuing Guarantee; No Right of Set-Off;
Independent Obligation.
(a) This Guarantee shall be a continuing guarantee of the
payment and performance of all Indenture Obligations and shall remain in full
force and effect until the payment in full of all of the Indenture Obligations
and shall apply to and secure any ultimate balance due or remaining unpaid to
the Trustee or the Holders; and this Guarantee shall not be considered as wholly
or partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this Indenture including those set forth in Article Eight.
Without limiting the generality of the foregoing, each of the Guarantors'
liability shall extend to all amounts which constitute part of the Indenture
Obligations and would be owed by the Company under this Indenture and the
Securities but for the fact that they are unenforceable, reduced, limited,
impaired, suspended or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
(b) Each Guarantor, jointly and severally, hereby guarantees
that the Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
(c) Each Guarantor, jointly and severally, guarantees that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the holders of the
Securities.
(d) Each Guarantor's liability to pay or perform or cause the
performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to the Guarantors in the manner prescribed in Section 106 hereof.
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(e) Except as provided herein, the provisions of this Article
Fourteen cover all agreements between the parties hereto relative to this
Guarantee and none of the parties shall be bound by any representation, warranty
or promise made by any Person relative thereto which is not embodied herein; and
it is specifically acknowledged and agreed that this Guarantee has been
delivered by each Guarantor free of any conditions whatsoever and that no
representations, warranties or promises have been made to any Guarantor
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any representations, warranties or promises now or at any time hereafter made by
the Company to any Guarantor.
Section 1403. Guarantee Absolute.
The obligations of the Guarantors hereunder are independent of
the obligations of the Company under the Securities and this Indenture and a
separate action or actions may be brought and prosecuted against any Guarantor
whether or not an action or proceeding is brought against the Company and
whether or not the Company is joined in any such action or proceeding. The
liability of the Guarantors hereunder is irrevocable, absolute and unconditional
and (to the extent permitted by law) the liability and obligations of the
Guarantors hereunder shall not be released, discharged, mitigated, waived,
impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in
respect of any Indebtedness or other obligation of the Company or any other
Person under this Indenture or the Securities, or any agreement or instrument
relating to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or the Holders may
extend to, or make with, the Company, any Guarantor or any other Person, or any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Indenture Obligations, or any other amendment or waiver of, or any
consent to or departure from, this Indenture or the Securities, including any
increase or decrease in the Indenture Obligations;
(c) the taking of security from the Company, any Guarantor or
any other Person, and the release, discharge or alteration of, or other dealing
with, such security;
(d) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future action of
any governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of any Guarantor hereunder;
(e) the abstention from taking security from the Company, any
Guarantor or any other Person or from perfecting, continuing to keep perfected
or taking advantage of any security;
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(f) any loss, diminution of value or lack of enforceability of
any security received from the Company, any Guarantor or any other Person, and
including any other guarantees received by the Trustee;
(g) any other dealings with the Company, any Guarantor or any
other Person, or with any security;
(h) the Trustee's or the Holders' acceptance of compositions
from the Company or any Guarantor;
(i) the application by the Holders or the Trustee of all
monies at any time and from time to time received from the Company, any
Guarantor or any other Person on account of any indebtedness and liabilities
owing by the Company or any Guarantor to the Trustee or the Holders, in such
manner as the Trustee or the Holders deems best and the changing of such
application in whole or in part and at any time or from time to time, or any
manner of application of collateral, if any, or proceeds thereof, to all or any
of the Indenture Obligations, or the manner of sale of any such collateral;
(j) the release or discharge of the Company or any Guarantor
of the Securities or of any Person liable directly as surety or otherwise by
operation of law or otherwise for the Securities, other than an express release
in writing given by the Trustee, on behalf of the Holders, of the liability and
obligations of any Guarantor hereunder;
(k) any change in the name, business, capital structure or
governing instrument of the Company or any Guarantor or any refinancing or
restructuring of any of the Indenture Obligations;
(l) the sale of the Company's or any Guarantor's business or
any part thereof;
(m) subject to Section 1414, any merger or consolidation,
arrangement or reorganization of the Company, any Guarantor, any Person
resulting from the merger or consolidation of the Company or any Guarantor with
any other Person or any other successor to such Person or merged or consolidated
Person or any other change in the corporate existence, structure or ownership of
the Company or any Guarantor;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets of the Company or its
assets or any resulting discharge of any obligations of the Company (whether
voluntary or involuntary) or of any Guarantor or the loss of corporate
existence;
(o) subject to Section 1414, any arrangement or plan of
reorganization affecting the Company or any Guarantor;
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(p) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense available to, or
discharge of, the Company or any Guarantor; or
(q) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Indenture Obligations or
the liability of the Company or any other obligor under the Securities, in whole
or in part, and any refusal of payment by the Trustee, in whole or in part, from
any other obligor or other guarantor in connection with any of the Indenture
Obligations, whether or not with notice to, or further assent by, or any
reservation of rights against, each of the Guarantors.
Section 1404. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from any Guarantor hereunder, the Trustee or the Holders shall have the
right to demand its full claim and to receive all dividends or other payments in
respect thereof until the Indenture Obligations have been paid in full, and the
Guarantors shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
this Indenture and the Securities. The retention by the Trustee or the Holders
of any security, prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as between the
Trustee and any Guarantor, be considered as a purchase of such security, or as
payment, satisfaction or reduction of the Indenture Obligations due to the
Trustee or the Holders by the Company or any part thereof.
Section 1405. Waivers.
(a) Each Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Guarantee and notice of the
existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Company or such Guarantor with respect to the
Indenture Obligations. Each Guarantor hereby acknowledges communication to it of
the terms of this Indenture and the Securities and all of the provisions therein
contained and consents to and approves the same. Each Guarantor hereby expressly
waives (to the extent permitted by law) diligence, presentment, protest and
demand for payment.
(b) Without prejudice to any of the rights or recourses which
the Trustee or the Holders may have against the Company, each Guarantor hereby
expressly waives (to the extent permitted by law) any right to require the
Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse
against the Company, any Guarantor or any other Person;
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(ii) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee
or the Holders may have in law or equity;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
(c) With respect to this Section 1405, to the extent
applicable to any Guarantor, each Guarantor expressly waives application of
Sections 26-7 through 26-9 of the North Carolina General Statutes.
Section 1406. The Guarantors Remain Obligated in Event the
Company Is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Guarantors
that if for any reason the Company has no legal existence, is or becomes under
no legal obligation to discharge the Indenture Obligations owing to the Trustee
or the Holders by the Company or if any of the Indenture Obligations owing by
the Company to the Trustee or the Holders becomes irrecoverable from the Company
by operation of law or for any reason whatsoever, this Guarantee and the
covenants, agreements and obligations of the Guarantors contained in this
Article Fourteen shall nevertheless be binding upon the Guarantors, as principal
debtor, until such time as all such Indenture Obligations have been paid in full
to the Trustee and all Indenture Obligations owing to the Trustee or the Holders
by the Company have been discharged, or such earlier time as Section 402 shall
apply to the Securities and the Guarantors shall be responsible for the payment
thereof to the Trustee or the Holders upon demand.
Section 1407. Fraudulent Conveyance; Subrogation.
(a) Any term or provision of this Guarantee to the contrary
notwithstanding, the aggregate amount of the Indenture Obligations guaranteed
hereunder shall be reduced to the extent necessary to prevent this Guarantee
from violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) Each Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under federal bankruptcy law) or
otherwise by reason of any payment by it pursuant to the provisions of this
Article Fourteen.
Section 1408. Guarantee Is in Addition to Other Security.
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This Guarantee shall be in addition to and not in substitution
for any other guarantees or other security which the Trustee may now or
hereafter hold in respect of the Indenture Obligations owing to the Trustee or
the Holders by the Company and (except as may be required by law) the Trustee
shall be under no obligation to marshal in favor of each of the Guarantors any
other guarantees or other security or any moneys or other assets which the
Trustee may be entitled to receive or upon which the Trustee or the Holders may
have a claim.
Section 1409. Release of Security Interests.
Without limiting the generality of the foregoing and except as
otherwise provided in this Indenture, each Guarantor hereby consents and agrees,
to the fullest extent permitted by applicable law, that the rights of the
Trustee hereunder, and the liability of the Guarantors hereunder, shall not be
affected by any and all releases for any purpose of any collateral, if any, from
the Liens and security interests created by any collateral document and that
this Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Indenture Obligations is rescinded
or must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made.
Section 1410. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Fourteen and this Guarantee and no recovery or judgment
in pursuance thereof shall be a bar or defense to any further action or
proceeding which may be brought under Article Fourteen and this Guarantee by
reason of any further default or defaults under Article Fourteen and this
Guarantee or in the payment of any of the Indenture Obligations owing by the
Company.
Section 1411. Failure to Exercise Rights Shall Not Operate as
a Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the
part of the Trustee or the Holders, any right, power, privilege or remedy under
this Article Fourteen and this Guarantee shall operate as a waiver thereof, nor
shall any single or partial exercise of any rights, power, privilege or remedy
preclude any other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies herein provided
for are cumulative and not exclusive of any rights or remedies provided in law
or equity.
(b) Nothing contained in this Article Fourteen shall limit the
right of the Trustee or the Holders to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 1412. Trustee's Duties; Notice to Trustee.
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(a) Any provision in this Article Fourteen or elsewhere in
this Indenture allowing the Trustee to request any information or to take any
action authorized by, or on behalf of any Guarantor, shall be permissive and
shall not be obligatory on the Trustee except as the Holders may direct in
accordance with the provisions of this Indenture or where the failure of the
Trustee to request any such information or to take any such action arises from
the Trustee's negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company, any Guarantor or the officers,
directors or agents acting or purporting to act on their respective behalf.
Section 1413. Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen
shall extend to and be binding upon each Guarantor and its successors and
permitted assigns and shall enure to the benefit of and may be enforced by the
Trustee and its successors and assigns; provided, however, that the Guarantors
may not assign any of their rights or obligations hereunder other than in
accordance with Article Eight.
Section 1414. Release of Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Article Fourteen. Upon the delivery by the Company to the
Trustee of an Officer's Certificate and, if requested by the Trustee, an Opinion
of Counsel to the effect that the transaction giving rise to the release of this
Guarantee was made by the Company in accordance with the provisions of this
Indenture and the Securities, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Guarantors from their
obligations under this Guarantee. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantors under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Indenture Obligations are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
This Guarantee shall terminate with respect to each Guarantor
and shall be automatically and unconditionally released and discharged as
provided in Section 1014(c).
Section 1415. Execution of Guarantee.
To evidence the Guarantee, each Guarantor hereby agrees to
execute the guarantee substantially in the form set forth in Section 206, to be
endorsed on each Security authenticated and delivered by the Trustee and that
this Indenture shall be executed on behalf of each Guarantor by its Chairman of
the Board, its President, or one of its Vice Presidents and attested
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by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Section 1416. Guarantee Subordinate to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and each Holder of a
Guarantee, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Guarantees is hereby made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full in cash or Cash Equivalents or in any other form as acceptable to the
holders of Guarantor Senior Indebtedness of all Guarantor Senior Indebtedness;
provided, however, that the Indebtedness represented by this Guarantee in all
respects shall rank equally with, or prior to, all existing and future
Indebtedness of such Guarantor that is expressly subordinated to such
Guarantor's Guarantor Senior Indebtedness.
This Article Fourteen shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become holders of, or
continue to hold Guarantor Senior Indebtedness; and such provisions are made for
the benefit of the holders of Guarantor Senior Indebtedness; and such holders
are made obligees hereunder and they or each of them may enforce such
provisions.
With respect to the relative rights of Holders and holders of
Senior Indebtedness and Guarantor Senior Indebtedness and for the purpose of
Section 1407(a), each Holder of a Security by his acceptance thereof
acknowledges that all Senior Indebtedness and any guarantee by a Guarantor of
such Senior Indebtedness shall be deemed to have been incurred prior to the
incurrence by such Guarantor of its liability under its Guarantee.
Section 1417. Payment Over of Proceeds Upon Dissolution of the
Guarantor, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets or liabilities of any Guarantor,
then and in any such event:
(1) the holders of Guarantor Senior Indebtedness
shall be entitled to receive payment in full in cash or Cash
Equivalents or in any other form as acceptable to the holders
of Guarantor Senior Indebtedness of all amounts due on or in
respect of all Guarantor Senior Indebtedness, before the
Holders of the Securities are entitled to receive any payment
or distribution of any kind or
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character (excluding Permitted Guarantor Junior Securities)
on account of the Guarantee of such Guarantor; and
(2) any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property
or securities (excluding Permitted Guarantor Junior
Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this
Article shall be paid by the liquidating trustee or agent or
other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Guarantor Senior
Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Guarantor Senior
Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior
Guarantor Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or Cash
Equivalents or in any other form as acceptable to the holders
of Guarantor Senior Indebtedness of all Guarantor Senior
Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such
Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Security shall have received any payment or distribution of
assets of any Guarantor of any kind or character, whether in
cash, property or securities, in respect of the Guarantee of
such Guarantor before all Guarantor Senior Indebtedness is
paid in full, then and in such event such payment or
distribution (excluding Permitted Guarantor Junior Securities)
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or distribution
of assets of such Guarantor for application to the payment of
all Guarantor Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Guarantor Senior Indebtedness in
full in cash or Cash Equivalents or in any other form as
acceptable to the holders of Guarantor Senior Indebtedness
after giving effect to any concurrent payment or distribution
to or for the holders of Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another Person or the liquidation or dissolution of any
Guarantor following the sale, assignment, conveyance, transfer, lease or other
disposal of all or substantially all of such Guarantor's properties or assets to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of such
Guarantor for the purposes of this Section if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
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other disposal of all or substantially all of such Guarantor's properties and
assets, as the case may be, shall, as a part of such consolidation, merger,
sale, assignment, conveyance, transfer, lease or other disposal comply with the
conditions set forth in Article Eight.
Section 1418. Default on Guarantor Senior Indebtedness.
(a) Upon the maturity of any Guarantor Senior Indebtedness by
lapse of time, acceleration or otherwise, all principal thereof and interest
thereon and other amounts due in connection therewith shall first be paid in
full or such payment duly provided for before any payment is made by any of the
Guarantors or any Person acting on behalf of any of the Guarantors in respect of
the Guarantee of such Guarantor.
(b) No payment (excluding payments in the form of Permitted
Guarantor Junior Securities) shall be made by any Guarantor in respect of its
Guarantee during the period in which Section 1417 shall be applicable, during
any suspension of payments in effect under Section 1203(a) of this Indenture or
during any Payment Blockage Period in effect under Section 1203(b) of this
Indenture.
(c) In the event that, notwithstanding the foregoing, any
Guarantor shall make any payment to the Trustee or the Holder of its Guarantee
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to the representatives
of Guarantor Senior Indebtedness or as a court of competent jurisdiction shall
direct.
Section 1419. Payment Permitted by Each of the Guarantors if
No Default.
Nothing contained in this Article, elsewhere in this Indenture
or in any of the Securities shall prevent any Guarantor, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of such Guarantor referred to in Section 1417 or under
the conditions described in Section 1418, from making payments at any time of
principal of, premium, if any, or interest on the Securities.
Section 1420. Subrogation to Rights of Holders of Guarantor
Senior Indebtedness.
Subject to the payment in full of all Guarantor Senior
Indebtedness in cash or Cash Equivalents or in any other form acceptable to the
holders of Guarantor Senior Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Guarantor Senior Indebtedness until the principal of, premium, if any,
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Guarantor Senior
Indebtedness of any cash, property
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or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Guarantor Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among any
Guarantor, its creditors other than holders of Guarantor Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment or distribution by
such Guarantor to or on account of the Guarantor Senior Indebtedness.
Section 1421. Provisions Solely to Define Relative Rights.
The provisions of Sections 1416 through 1429 of this Indenture
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Guarantor Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or shall (a) impair, as
among any Guarantor, its creditors other than holders of Guarantor Senior
Indebtedness and the Holders of the Securities, the obligation of such
Guarantor, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against each of the Guarantors of the Holders
of the Securities and creditors of each of the Guarantors other than the holders
of Guarantor Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Guarantor Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Guarantors referred to in Section 1417, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 1418, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 1418(c).
Section 1422. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of any Guarantor whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of any Guarantor owing to such Holder in the form required
in such proceedings and the causing of such claim to be approved.
Section 1423. No Waiver of Subordination Provisions.
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(a) No right of any present or future holder of any Guarantor
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Guarantor or by any act or failure to act by any such holder, or by
any non-compliance by any Guarantor with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section and notwithstanding any other provision contained herein, the holders of
Guarantor Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of
Guarantor Senior Indebtedness, do any one or more of the following: (1) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Guarantor Senior Indebtedness or any instrument evidencing the same or
any agreement under which Guarantor Senior Indebtedness is outstanding; (2)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Guarantor Senior Indebtedness; (3) release any Person
liable in any manner for the collection or payment of Guarantor Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against any
of the Guarantors and any other Person; provided, however, that in no event
shall any such actions limit the right of the Holders of the Securities to take
any action to accelerate the maturity of the Securities in accordance with the
provisions set forth in Article 5 or to pursue any rights or remedies under this
Indenture or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
Section 1424. Notice to Trustee by Each of the Guarantors.
(a) Each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Guarantee. Notwithstanding
the provisions of this Article or any provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from any Guarantor or a holder of Guarantor Senior Indebtedness or any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of, premium, if any, or interest on any
Security or any other Indenture Obligations), then, anything herein contained to
the contrary notwithstanding but without limiting the rights and remedies of the
holders of Guarantor Senior Indebtedness or any trustee, fiduciary or agent
thereof, the Trustee shall have full power and authority to receive such money
and to apply the same to the
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purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it after such date; nor shall
the Trustee be charged with knowledge of the curing of any such default or the
elimination of the act or condition preventing any such payment unless and until
the Trustee shall have received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and each Guarantor by a Person
representing himself to be a representative of one or more holders of Designated
Guarantor Senior Indebtedness (a "Guarantor Senior Representative") or a holder
of Guarantor Senior Indebtedness (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a Guarantor Senior Representative
or a holder of Guarantor Senior Indebtedness (or a trustee, fiduciary or agent
therefor); provided, however, that failure to give such notice to the Company
shall not affect in any way the ability of the Trustee to rely on such notice.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1425. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Guarantor Senior
Indebtedness and other indebtedness of such Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article, provided that the foregoing shall
apply only if such court has been fully apprised of the provisions of this
Article.
Section 1426. Rights of Trustee as a Holder of Guarantor
Senior Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Guarantor Senior
Indebtedness which may at any time be held by
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it, to the same extent as any other holder of Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 606.
Section 1427. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting under this
Indenture, the term "Trustee" as used in this Article shall in such case (unless
the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1426 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1428. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to the provisions described under Article
Five and as set forth in this Indenture or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article of the holders, from time to time, of Guarantor Senior Indebtedness to
receive the cash, property or securities receivable upon the exercise of such
rights or remedies.
Section 1429. Trustee's Relation to Guarantor Senior
Indebtedness.
With respect to the holders of Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Article against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Indebtedness and the Trustee shall not be liable to any holder of Guarantor
Senior Indebtedness if it shall mistakenly in the absence of gross negligence or
willful misconduct pay over or deliver to Holders, the Company or any other
Person moneys or assets to which any holder of Guarantor Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Security on which a
Guarantee is endorsed, such Guarantee shall be valid nevertheless.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SINCLAIR BROADCAST GROUP, INC.,
as Issuer
CHESAPEAKE TELEVISION, INC.
CHESAPEAKE TELEVISION LICENSEE, INC.
FSF-TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KSMO, INC.
KSMO LICENSEE, INC.
KUPN LICENSEE, INC.
SCI-INDIANA LICENSEE, INC.
SCI-SACRAMENTO LICENSEE, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF ALBUQUERQUE LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF BUFFALO LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF GREENVILLE LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC.
SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF MEMPHIS LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NASHVILLE LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF NEW ORLEANS LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF ST. LOUIS LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE, INC.
SINCLAIR RADIO OF WILKES-BARRE LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
TUSCALOOSA BROADCASTING INC.
WCGV, INC.
WCGV LICENSEE, INC.
WDBB, INC.
WLFL, INC.
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WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSMH LICENSEE, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTTO LICENSEE, INC.
WTVZ, INC.
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WTVZ LICENSEE, INC.
WYZZ, INC.
WYZZ LICENSEE, INC.,
as Guarantors
Attest David B. Amy By: /s/ David D. Smith
--------------------------------------
Name: David B. Amy Name: David D. Smith
Title: Secretary/Treasurer Title: President
FIRST UNION NATIONAL BANK OF MARYLAND, as Trustee
By: /s/ Patricia A. Welling
--------------------------------------
Name: Patricia A. Welling
Title: Vice President
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STATE OF MARYLAND)
) ss.:
CITY OF BALTIMORE)
On the 2nd day of July, 1997, before me personally came , to
me known, who, being by me duly sworn, did depose and say that he resides at 802
Hillstead Drive; that he is President of each of Sinclair Broadcast Group, Inc.,
Chesapeake Television, Inc., WTTE, Channel 28, Inc., WPGH, Inc., WTTO, Inc.,
WCGV, Inc., Chesapeake Television Licensee, Inc., FSF-TV, Inc., KABB Licensee,
Inc., KDNL Licensee, Inc., KSMO, Inc., KSMO Licensee, Inc., KUPN Licensee, Inc.,
SCI-Indiana Licensee, Inc., SCI-Sacramento Licensee, Inc., Sinclair
Communications, Inc., Sinclair Radio of Albuquerque, Inc., Sinclair Radio of
Albuquerque Licensee, Inc., Sinclair Radio of Buffalo, Inc., Sinclair Radio of
Buffalo Licensee, Inc., Sinclair Radio of Greenville, Inc., Sinclair Radio of
Greenville Licensee, Inc., Sinclair Radio of Los Angeles, Inc., Sinclair Radio
of Los Angeles Licensee, Inc., Sinclair Radio of Memphis, Inc., Sinclair Radio
of Memphis Licensee, Inc., Sinclair Radio of Nashville, Inc., Sinclair Radio of
Nashville Licensee, Inc., Sinclair Radio of New Orleans, Inc., Sinclair Radio of
New Orleans Licensee, Inc., Sinclair Radio of St. Louis, Inc., Sinclair Radio of
St. Louis Licensee, Inc., Sinclair Radio of Wilkes- Barre, Inc., Sinclair Radio
of Wilkes-Barre Licensee, Inc., Superior Communications of Kentucky, Inc.,
Superior Communications of Oklahoma, Inc., Superior KY License Corp., Superior
OK License Corp., Tuscaloosa Broadcasting Inc., WCGV, Inc., WCGV Licensee, Inc.,
WDBB, Inc., WLFL, Inc., WLFL Licensee, Inc., WLOS Licensee, Inc., WPGH, Inc.,
WPGH Licensee, Inc., WSMH, Inc., WSMH Licensee, Inc., WSTR, Inc., WSTR Licensee,
Inc., WSYX, Inc., WTTE, Channel 28, Inc., WTTE, Channel 28 Licensee, Inc., WTTO,
Inc., WTTO Licensee, Inc., WTVZ, Inc., WTVZ Licensee, Inc., WYZZ, Inc. and WYZZ
Licensee, Inc., the corporations described in and which executed the foregoing
instrument; and that he signed his name thereto pursuant to authority of the
Boards of Directors of such corporations.
(NOTARIAL
SEAL)
/s/ Lonnie Reynolds
-----------------------------------
Comm. exp. 6/1/98
STATE OF VIRGINIA)
) ss.:
CITY OF RICHMOND)
On the 30 day of July, 1997, before me personally came
Patricia A. Welling, to me known, who, being by me duly sworn, did depose and
say that he resides at Midlothian, Va.; that he is an authorized officer of
First Union National Bank of Maryland, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like authority.
(NOTARIAL
SEAL)
/s/ Nancy M. Tucker
---------------------------
My commission expires
June 30, 2001
SCHEDULE I
EXISTING INDEBTEDNESS OF SINCLAIR BROADCAST GROUP, INC.
AND ITS RESTRICTED SUBSIDIARIES
1. Note, dated September 30, 1990, between Sinclair Broadcast Group, Inc.
(as borrower) and Julian S. Smith (as lender).
2. Term Note, dated September 30, 1990, between Sinclair Broadcast Group, Inc.
(as borrower) and Carolyn C. Smith (as lender).
3. Promissory Note, dated December 26, 1986, between Sinclair Broadcast Group,
Inc. (as borrower) and Frederick H. Hines, B. Stanley Resnick and Edward A.
Johnston (as representatives for the lenders).
4. Mortgage, dated April 8, 1981, between Sinclair Broadcast Group, Inc. (as
borrower) and Harry Rosen, as Trustee for Penn Montier Realty Company (as
lender), 1996, for the property located at 500 Seco Road, Monroeville,
Pennsylvania, deded to WPGH, Inc. on November 4, 1993.
5. Mortgage, dated September 30, 1981, between Sinclair Broadcast Group, Inc.
(as borrower) and Lafayette Life Insurance Company, expiring in October
1996, for the property located at 6130 Sunbury Road, Waterville, Ohio,
deeded to WPGH, Inc. and November 4, 1993.
6. Lease Agreement, dated January 1, 1991, between Chesapeake Television, Inc.
(as Lessee) and Keyser Investment Group, Inc.(as lessor), for space located
at 2000-2008 W. 41st Street, Baltimore, MA.
7. Lease Agreement, dated April 2, 1987, between Chesapeake Television, Inc.
(as lessee) and Cunningham Communications, Inc. (as lessor), for space
located on the primary Baltimore broadcasting tower at 3900 Hooper Avenue,
Baltimore, MA.
8. Lease Agreement, dated March 16, 1988, between Chesapeake Television, Inc.
(as lessee) and Cunningham Communications, Inc. (as lessor), for space
located on the back-up Baltimore broadcasting tower at 1200 N. Rolling
Road, Baltimore, MA.
9. Lease Agreement, dated September 23, 1993, between WPGH, Inc. (as lessee)
and Gerstell Development Limited Partnership (as lessor), for tower and
building space located at 750 Ivory Avenue, Pittsburgh, PA.
10. Guaranty of Payment Agreement, dated October 15, 1993, by and between the
Company and Maryland National Bank, relating to Gerstell Development
Limited Partnership Loan from Maryland National Bank.
11. Indenture, dated as of December 9, 1993, as amended, among Sinclair
Broadcast Group, Inc. (as borrower), the Guarantors named therein (as
guarantors), and First Union National Bank of North Carolina (as trustee).
12. Option Agreement, dated as of December 16, 1994, between The Smith Brothers
and Chase Manhattan bank (National Association), which Option Agreement was
assigned by The Smith Brothers to the Company on June 12, 1993.
13. Indenture, dated as of August 28, 1995, as amended, among Sinclair
Broadcast Group, Inc. (as borrower), the Guarantors named therein, (as
guarantors), and United States Trust Company of New York (as trustee).
14. Amended and Restated Credit Agreement, dated as of May 20, 1997, between
Sinclair Broadcast Group, Inc. (as borrower), various subsidiaries of
Sinclair Broadcast Group, Inc. party thereto (as guarantors), various
lenders (as lenders) and The Chase Manhattan Bank (as agent).
SCHEDULE II
EXISTING LIENS
1. Bank Credit Agreement.
2. Term Note dated September 30, 1990, between Sinclair Broadcast Group, Inc.
(as borrower) and Julian S. Smith (as lender).
3. Term Note dated September 30, 1990, between Sinclair Broadcast Group, Inc.
(as borrower) and Carolyn C. Smith (as lender).
SCHEDULE III
EXISTING ENCUMBRANCES AND RESTRICTIONS
Notes
1. Encumbrances and restrictions under the Bank Credit Agreement, Founders'
Notes and Minority Note as in effect on August 28, 1995.
2. Restrictions under the Indenture dated as of December 9, 1993 in the
original principal amount of Two Hundred Million Dollars ($200,000,000.00)
by and among the Company and certain of its wholly-owned subsidiaries and
the First Union National Bank of North Carolina, as Trustee, as in effect
on August 28, 1995.
3. Indenture, dated as of August 28, 1995, as amended, among Sinclair
Broadcast Group, Inc. (as borrower), the Guarantors named therein, (as
guarantors), and United States Trust Company of New York (as trustee).
4. The restrictions, if any, contained in the terms of the Company's Series B
Convertible Preferred Stock.
5. The restrictions, if any, contained in the terms of the Company's Series C
Preferred Stock.
[UPDATE]
EXHIBIT A
[Form of Restricted Securities Transfer Certificate]
RESTRICTED SECURITIES TRANSFER CERTIFICATE
(For transfers pursuant to Section 307(a) of
the Indenture referred to below)
First Union National Bank of Maryland,
as Securities Registrar
[ ]
[ ]
Re: 9% Senior Subordinated Notes Due 2007 (the "Securities")
Reference is made to the Indenture, dated as of July 2, 1997 (the
"Indenture"), among Sinclair Broadcast Group, Inc., a Maryland corporation, the
guarantors party thereto and First Union National Bank of Maryland, as trustee.
Terms used herein and defined in the Indenture Rule 144A or Rule 144 under the
U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to $_____________ aggregate principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
CURRENTLY IN BOOK-ENTRY FORM: Yes ___ No ___ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If
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the Specified Securities are represented by a Global Security, they are held
through a Depositary (except in the name of "The Depository Trust Company") or
an Agent Member in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States. Accordingly, the Owner hereby further certifies
as:
(1) Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the
meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that
the Owner may be relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least
two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or from an affiliate (as such term
is defined in Rule 144) of the Company, whichever is later,
and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144;
(B) the transfer is occurring after a holding period by the Owner
of at least two years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate
(as such term is defined in Rule 144) of the Company,
whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the
Company; or
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: ______________
(Print the name of the
Undersigned, as such term
is defined in the second
paragraph of this
certificate.)
By:
-----------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
EXHIBIT B
INTERCOMPANY NOTE
_________ __, 1997
Evidences of all loans or advances ("Loans") hereunder shall
be reflected on the grid attached hereto. FOR VALUE RECEIVED, _____________, a
__________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to the
order of ______________ (the "Holder") the principal sum of the aggregate unpaid
principal amount of all Loans (plus accrued interest thereon) at any time and
from time to time made hereunder to which has not been previously paid.
All capitalized terms used herein that are defined in, or by
reference in, the Indenture among Sinclair Broadcast Group, Inc., a Maryland
corporation (the "Company"), the guarantors party thereto and First Union
National Bank of Maryland, as trustee, dated as of July 2, 1997 (the
"Indenture"), have the meanings assigned to such terms therein, or by reference
therein, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 Note Forgivable. Unless the Maker of the Loan
hereunder is either of the Company or any Guarantor, the Holder may not forgive
any amounts owing under this intercompany note.
Section 1.02 Interest; Prepayment. (a) The interest rate
("Interest Rate") on the Loans shall be a rate per annum reflected on the grid
attached hereto.
(b) The interest, if any, payable on each of the Loans shall
accrue from the date such Loan is made and, subject to Section 2.01, shall be
payable upon demand of the Holder.
(c) If the principal or accrued interest, if any, of the
Loans is not paid on the date demand is made, interest on the unpaid principal
and interest will accrue at a rate equal to the Interest Rate, if any, plus 100
basis points per annum from maturity until the principal and interest on such
Loans are fully paid.
(d) Subject to Section 2.01, any amounts hereunder may be
prepaid at any time by the Maker.
Section 1.03. Subordination. All loans made to either of the
Company or any Guarantor shall be subordinated in right of payment to the
payment and performance of the obligations of the Company and any Subsidiary
under the Indenture, the Securities, the Guarantees or any other Indebtedness
ranking senior to or pari passu with the Securities, or any
Guarantors, including, without limitation, any Indebtedness incurred under the
Bank Credit Agreement; provided that with respect to a Subsidiary in any
specific instance, such Subsidiary is also an obligor under the Indenture, the
Securities, a Guarantee or such other senior or pari passu Indebtedness, as the
case may be, whether as a borrower, guarantor or pledgor of collateral.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01. Events of Default. If after the date of issuance
of this Loan (i) an Event of Default has occurred under the Indenture, (ii) an
"Event of Default" (as defined) has occurred under the Bank Credit Agreement, or
any refinancing of the Bank Credit Agreement or (iii) an "event of default" (as
defined) on any other Indebtedness of the Company or any Guarantor then (x) in
the event of the Maker is not either one of the Company or a Guarantor, all
amounts owing under the Loans hereunder shall be immediately due and payable to
the Holder, and (y) in the event the Maker is either the Company or, the amounts
owing under the Loans hereunder shall not be due and payable, the amounts owing
under the Loans hereunder shall not be due and payable; provided, however, that
if such Event of Default or event of default has been waived, cured or
rescinded, such amounts shall no longer be due and payable in the case of clause
(x), and such amounts may be payable in the case of clause (y). If the Holder is
a Subsidiary, then the Holder hereby agrees that if it receives any payments or
distributions on any Loan from the Company or a Guarantor which is not payable
pursuant to clause (y) of the prior sentence after any Event of Default or event
or default described in clauses (i), (ii) or (iii) above has occurred, is
continuing and has not been waived, cured or rescinded, it will pay over and
deliver forthwith to the Company or such Guarantor, as the case may be, all such
payments and distributions.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any
provision of this intercompany note, or consent to depart herefrom is permitted
at any time for any reason, except with the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities.
Section 3.02 Assignment. No party to this Agreement may
assign, in whole or in part, any of its rights and obligations under this
intercompany note, except to its legal successor in interest.
Section 3.03 Third Party Beneficiaries. The holders of the
Securities or any other Indebtedness ranking pari passu with or senior to, the
Securities or any Guarantees, including without limitation, any Indebtedness
incurred under the Bank Credit Agreement, shall be third party beneficiaries to
this intercompany note and shall have the right to enforce this intercompany
note against the Company or any of their Subsidiaries.
Section 3.04 Headings. Article and Section headings in this
intercompany note are included for convenience of reference only and shall not
constitute a part of this intercompany note for any other purpose.
Section 3.05 Entire Agreement. This intercompany note sets
forth the entire agreement or the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 3.07 Waivers. The Maker hereby waives presentment,
demand for payment, notice of protest and all other demands and notices in
connection with the delivery, acceptance, performance or enforcement hereof.
By:______________________________
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of Maturity of Amount Unpaid
Borrowing/ Borrowing/ Principal Paid Principal Notation
Date Principal Principal or Prepaid Balance Made by