EXECUTION COPY
_______________________________________________________________________________
_________________________________
BRILL MEDIA COMPANY, LLC.,
and
BRILL MEDIA MANAGEMENT, INC.
as Issuers,
and
The SUBSIDIARY GUARANTORS
named herein
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
$105,000,000
12% SENIOR NOTES DUE 2007, SERIES A
12% SENIOR NOTES DUE 2007, SERIES B
_________________________________
____________________
INDENTURE
Dated as of December 30, 1997
____________________
_______________________________________________________________________________
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)........................................... 7.10
(a)(2)........................................... 7.10
(a)(3)........................................... N.A.
(a)(4)........................................... N.A.
(a)(5)........................................... 7.10
(b).............................................. 7.10
(c).............................................. N.A.
311(a).............................................. 7.11
(b).............................................. 7.11
(c).............................................. N.A.
312(a).............................................. 2.05
(b).............................................. 11.03
(c).............................................. 11.03
313(a).............................................. 7.06
(b)(1)........................................... 7.06
(b)(2)........................................... 7.06
(c).............................................. 7.06
(d).............................................. 7.06
314(a).............................................. 4.04
(b).............................................. N.A.
(c)(1)........................................... 11.05
(c)(2)........................................... 11.05
(c)(3)........................................... N.A.
(d).............................................. N.A.
(e).............................................. 11.05
(f).............................................. N.A.
315(a).............................................. 7.01
(b).............................................. 7.05
(c).............................................. 7.01
(d).............................................. 6.05;7.01
(e).............................................. 6.11
316(a).............................................. 1.01
(a)(1)(A)........................................ 6.02
(a)(1)(B)........................................ 6.04
(a)(2)........................................... N.A.
(b).............................................. 6.07
(c).............................................. 2.19
317(a)(1)........................................... 6.08
(a)(2)........................................... 6.09
(b).............................................. 2.04
318(a).............................................. 11.01
(b).............................................. N.A.
(c).............................................. 11.01
_______________________
*This Cross-Reference Table is not part of the Indenture.
N.A. means not applicable.
(2)
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . 1
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS. . . . . . . . . . . . . . . . . . . . 26
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . 27
SECTION 1.04. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . 28
ARTICLE 2 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.01. FORM AND DATING. . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.02. EXECUTION AND AUTHENTICATION . . . . . . . . . . . . . . 29
SECTION 2.03. REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . 30
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . 30
SECTION 2.05. SECURITYHOLDER LISTS . . . . . . . . . . . . . . . . . . 31
SECTION 2.06. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . 31
SECTION 2.07. REPLACEMENT SECURITIES . . . . . . . . . . . . . . . . . 32
SECTION 2.08. OUTSTANDING SECURITIES . . . . . . . . . . . . . . . . . 32
SECTION 2.09. TREASURY SECURITIES. . . . . . . . . . . . . . . . . . . 33
SECTION 2.10. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . 33
SECTION 2.11. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.12. DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . 34
SECTION 2.13. CUSIP NUMBER . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.14. DEPOSIT OF MONEYS. . . . . . . . . . . . . . . . . . . . 34
SECTION 2.15. RESTRICTIVE LEGENDS. . . . . . . . . . . . . . . . . . . 34
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL
SECURITY . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.17. SPECIAL TRANSFER PROVISIONS. . . . . . . . . . . . . . . 38
SECTION 2.18. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . 40
SECTION 2.19. ALLOCATION OF PURCHASE PRICE . . . . . . . . . . . . . . 41
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 3.01. NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . . . . 41
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED . . . . . . . . . 41
SECTION 3.03. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . 42
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . 43
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . 43
SECTION 3.06. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . 44
SECTION 3.07. OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . . . . 44
SECTION 3.08. MANDATORY REDEMPTION . . . . . . . . . . . . . . . . . . 45
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF
EXCESS PROCEEDS. . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 4 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.01. PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . 47
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 48
SECTION 4.03. SEC REPORTS. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.04. COMPLIANCE CERTIFICATES. . . . . . . . . . . . . . . . . 49
SECTION 4.05. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.06. STAY, EXTENSION AND USURY LAWS . . . . . . . . . . . . . 51
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS. . . . . . . . . . . . 51
SECTION 4.08. LIMITATION ON RESTRICTIONS ON
DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES.. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.09. LIMITATION ON INDEBTEDNESS . . . . . . . . . . . . . . . 57
SECTION 4.10. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK . . . 60
SECTION 4.11. LIMITATION ON AFFILIATE TRANSACTIONS . . . . . . . . . . 63
SECTION 4.12. LIMITATION ON LIENS. . . . . . . . . . . . . . . . . . . 64
SECTION 4.13. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . 65
SECTION 4.14. CHANGE OF CONTROL. . . . . . . . . . . . . . . . . . . . 65
SECTION 4.15. LIMITATION ON ISSUANCES OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES . . . . . . . . . . . . 66
SECTION 4.16. LIMITATION ON SALE/LEASEBACK
TRANSACTION. . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 4.17. LIMITATION ON DESIGNATIONS OF UNRESTRICTED
SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 4.18. FUTURE NOTE GUARANTORS . . . . . . . . . . . . . . . . . 68
SECTION 4.19. LIMITATION ON BUSINESS . . . . . . . . . . . . . . . . . 69
SECTION 4.20. FURTHER INSTRUMENTS AND ACTS . . . . . . . . . . . . . . 69
ARTICLE 5 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 5.01. LIMITATIONS ON MERGER, CONSOLIDATION
OR SALE OF ASSETS. . . . . . . . . . . . . . . . . . . . 69
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . 70
ARTICLE 6 DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 70
SECTION 6.02. ACCELERATION . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.03. OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . 73
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 74
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . 74
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 74
SECTION 6.07. RIGHTS OF SECURITYHOLDERS TO RECEIVE PAYMENT . . . . . . 75
(ii)
SECTION 6.08. COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . 75
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . 75
SECTION 6.10. PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 77
ARTICLE 7 TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 77
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 79
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . 80
SECTION 7.04. TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . 80
SECTION 7.05. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . 80
SECTION 7.06. REPORTS BY TRUSTEE TO SECURITYHOLDERS. . . . . . . . . . 80
SECTION 7.07. COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . 81
SECTION 7.08. REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . 82
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . 83
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . 83
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST THE ISSUERS. . . . . . . . . . . . . . . . . . . 84
ARTICLE 8 DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE . . . . 84
SECTION 8.02. CONDITIONS TO DEFEASANCE . . . . . . . . . . . . . . . . 85
SECTION 8.03. APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . 87
SECTION 8.04. REPAYMENT TO THE ISSUERS . . . . . . . . . . . . . . . . 87
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS . . . . . . . . . . 88
SECTION 8.06. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE 9 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.01. WITHOUT CONSENT OF SECURITYHOLDERS . . . . . . . . . . . 88
SECTION 9.02. WITH CONSENT OF SECURITYHOLDERS. . . . . . . . . . . . . 90
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . 92
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . 92
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . 92
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . 93
ARTICLE 10 SUBSIDIARY GUARANTEE OF SECURITIES. . . . . . . . . . . . . . 93
SECTION 10.01. SUBSIDIARY GUARANTEE . . . . . . . . . . . . . . . . . . 93
SECTION 10.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE . . . . . 95
SECTION 10.03. SUBSIDIARY GUARANTEE UNCONDITIONAL,
ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 10.04. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY . . . . . 96
(iii)
SECTION 10.05. CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10.06. RELEASE. . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10.07. ADDITIONAL SUBSIDIARY GUARANTORS . . . . . . . . . . . . 97
SECTION 10.08. SUBSIDIARY GUARANTORS MAY
CONSOLIDATE, ETC., ON CERTAIN TERMS. . . . . . . . . . . 98
SECTION 10.09. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . 99
SECTION 10.10. WAIVER OF STAY, EXTENSION OR USURY
LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . 99
ARTICLE 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 11.01. TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . . . . 99
SECTION 11.02. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.03. COMMUNICATION BY SECURITYHOLDERS
WITH OTHER SECURITYHOLDERS . . . . . . . . . . . . . . . 101
SECTION 11.04. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . 101
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . 101
SECTION 11.06. RULES BY TRUSTEE AND AGENTS. . . . . . . . . . . . . . . 102
SECTION 11.07. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.08. NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . 102
SECTION 11.09. DUPLICATE ORIGINALS. . . . . . . . . . . . . . . . . . . 103
SECTION 11.10. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . 103
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. . . . . . 103
SECTION 11.12. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 11.13. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 11.14. COUNTERPART ORIGINALS. . . . . . . . . . . . . . . . . . 103
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC.. . . . . . . . . . . . 104
EXHIBIT A - FORM OF INITIAL SECURITY WITH SUBSIDIARY
GUARANTEE
EXHIBIT B - FORM OF EXCHANGE SECURITY WITH SUBSIDIARY
GUARANTEE
EXHIBIT C - FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS TO NON-QIB
ACCREDITED INVESTORS
EXHIBIT D - FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS PURSUANT TO
REGULATIONS
(iv)
SCHEDULE I - SUBSIDIARY GUARANTORS
SCHEDULE II - EXISTING INDEBTEDNESS
(v)
INDENTURE, dated as of December 30, 1997, among Brill Media
Company, LLC, a Virginia limited liability company ("BMC"), Brill Media
Management, Inc., a Virginia corporation ("Media" and, collectively with
BMC, the "Issuers"), the subsidiary guarantors listed on Schedule I
attached hereto as Subsidiary Guarantors (as defined) of the Issuers'
obligations hereunder, and United States Trust Company of New York, a
banking corporation organized and existing under the laws of the State of
New York, as Trustee (the "Trustee").
The Issuers have duly authorized the creation of an issue of 12%
Senior Notes due 2007, Series A (the "Initial Securities") and 12% Senior
Notes due 2007, Series B (the "Exchange Securities") and, to provide
therefor, the Issuers and the Subsidiary Guarantors have duly authorized
the execution and delivery of this Indenture. All things necessary to make
the Securities (as defined), when duly issued and executed by the Issuers,
and authenticated and delivered hereunder, the valid obligations of the
Issuers and the Subsidiary Guarantors, and to make this Indenture a valid
and binding agreement of the Issuers and the Subsidiary Guarantors, have
been done.
The Issuers, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined) of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Accountants" means Ernst & Young LLP or such other nationally
recognized firm of independent certified public accountants that is
reasonably acceptable to the Trustee.
"Accreted Value" means, as of any date, with respect to each $1,000
principal amount at maturity of Securities: (A) if such date is prior to
December 15, 1999, the sum of (1) the initial offering price of such
Securities and (2) the portion of the original issue discount for such
Securities (which for this purpose shall be deemed to be the excess of the
principal amount over such initial offering price), which shall be
amortized with respect to the Securities to but not including such date,
such original issue discount to be so amortized at a rate which, together
with cash interest paid on the Securities, represents a yield to maturity
of 12% per annum using semiannual compounding of such rate on each June 15
and December 15, commencing June 15, 1998 (the "Semi-Annual Accrual Date"),
from the Issue Date to but not including the date of determination. The
following table indicates the Accreted Value with respect to each $1,000
principal amount at maturity of Securities at the semiannual compounding
dates of the Securities:
Semi-Annual
Accrual Date Accreted Value
- ----------------- ---------------
June 15, 1998............................ $ 939.82
December 15, 1998........................ $ 958.71
June 15, 1998............................ $ 978.73
December 15, 1999........................ $1,000.00
and (B) if such date occurs on or after December 15, 1999, $1,000.
At any time prior to December 15, 1999 and between two Semi-Annual
Accrual Dates, the Accreted Value will be the sum of (1) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding the date of
determination, and (2) the Proportionate Share (as defined below). The
"Proportionate Share" is an amount equal to the product of (i) the Accreted
Value for the immediately following Semi-Annual Accrual Date less the
Accreted Value for the immediately preceding Semi-Annual Date times (ii) a
fraction, the numerator of which is the number of days from the immediately
preceding Semi-Annual Accrual Date to the date of such determination, using
a 360-day year of twelve 30-day months, and the denominator of which is
180.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Permitted Business; (ii) the Capital
Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by either of the Issuers or a Restricted
Subsidiary of either of the Issuers; (iii) Capital Stock constituting a
minority interest in any Person that at such time is a Restricted
Subsidiary of either of the Issuers; or (iv) Permitted Investments of the
type and in the amounts described in clause (viii) of the definition
thereof; provided, however, that, in the case of clauses (ii) and (iii),
such Restricted Subsidiary is primarily engaged in a Permitted Business.
"Administrative Management Agreement" means any management
agreements between either of the Issuers or any of the Subsidiary
Guarantors and BMCLP, pursuant to which BMCLP provides management services
to such Issuer or such Subsidiary Guarantors.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date means
the lesser of the amount by which (x) the fair value of the property of
such Subsidiary Guarantor exceeds the total amount of liabilities,
including, without limitation, the probable liability of such Subsidiary
Guarantor with respect to its contingent liabilities (after giving effect
2
to all other fixed and contingent liabilities incurred or assumed on such
date), but excluding liabilities under the Subsidiary Guarantee of such
Subsidiary Guarantor at such date and (y) the present fair salable value of
the assets of such Subsidiary Guarantor at such date exceeds the amount
that will be required to pay the probable liability of such Subsidiary
Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary by such Subsidiary Guarantor
in respect of the obligations of such Subsidiary under the Subsidiary
Guarantee), excluding debt in respect of the Subsidiary Guarantee, as they
become absolute and matured.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Appreciation Notes" means the Appreciation Notes due 2007 of the
Issuers.
"Appreciation Notes Indenture" means the Indenture, dated as of
the Issue Date, between the Issuers and the United States Trust Company of
New York relating to the Appreciation Notes as in effect on the Issue Date
and without giving effect to any modification or amendment thereto made
after the Issue Date.
"Asset Acquisition" means (i) an investment by either of the
Issuers or any of its Restricted Subsidiaries in any other Person pursuant
to which such Person shall become a Restricted Subsidiary or shall be
merged into or consolidated with such Issuer or any of its Restricted
Subsidiaries or (ii) an acquisition by either of the Issuer or any of its
Restricted Subsidiaries of the property and assets of any Person other than
either of the Issuers or any of their Restricted Subsidiaries that
constitute substantially all of a division or line of business of such
Person.
"Asset Disposition" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances
or dispositions that are part of a common plan) of shares of Capital Stock
of (or any other equity interests in) a Restricted Subsidiary (other than
directors' qualifying shares) or of any other property or other assets
(each referred to for the purposes of this definition as a "disposition")
by either
3
of the Issuers or any of their Restricted Subsidiaries (including
any disposition by means of a merger, consolidation or similar transaction)
other than (i) a disposition by a Restricted Subsidiary to either of the
Issuers or by either of the Issuers or a Restricted Subsidiary to a
Wholly-Owned Subsidiary, (ii) a disposition of inventory in the ordinary
course of business, (iii) a disposition of obsolete or worn out equipment
or equipment that is no longer useful in the conduct of the business of
either of the Issuers and their Restricted Subsidiaries and that is
disposed of in each case in the ordinary course of business, (iv)
dispositions of property for net proceeds which, when taken collectively
with the net proceeds of any other such dispositions under this clause (iv)
that were consummated since the beginning of the calendar year in which
such disposition is consummated, do not exceed $1.0 million, and (v)
transactions permitted under Section 5.01. Notwithstanding anything to the
contrary contained above, a Restricted Payment made in compliance with
Section 4.07 shall not constitute an Asset Disposition except for purposes
of determinations of the Consolidated Leverage Ratio.
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded
annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum
of the product of the numbers of years (rounded upwards to the nearest
month) from the date of determination to the dates of each successive
scheduled principal payment of such Indebtedness or redemption multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bankruptcy Code" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"BMC" has the meaning set forth in the preamble to this Indenture
until a successor replaces such Person in accordance with Article 5 hereof
and thereafter means such successor.
"BMCLP" means Brill Media Company, L.P, a Virginia limited
partnership, and its successors.
"Board of Directors" means as to BMC (i) so long as BMC or any
successor to BMC is a limited liability company or a partnership, the board
of directors of Media, which is the manager of BMC and (ii) at any other
time, the board of directors of BMC, and as to Media, the board of
directors of Media.
4
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such
Person (or, in the case of BMC so long as it is a limited liability company
or a partnership, of Brill Media Management, Inc., which is the manager of
BMC) to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
membership and other interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any
debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized amount
of such obligation determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date such lease may be
terminated without penalty.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof, (iii)
certificates of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any commercial bank having capital and surplus
in excess of $500 million, (iv) repurchase obligations for underlying
securities of the types described in clauses (ii) and (iii) entered into
with any financial institution meeting the qualifications specified in
clause (iii) above, (v) commercial paper rated A-1 or the equivalent
thereof by Moody's or S&P and in each case maturing within one year after
the date of acquisition, (vi) investment funds investing 95% of their
assets in securities of the types described in clauses (i)-(v) above, (vii)
readily marketable direct obligations issued by any state of the United
States of America or any political subdivision thereof having one of the
two highest rating categories obtainable either Moody's or S&P and (viii)
Indebtedness or Preferred Stock issued by Persons with a rating of "A" or
higher from S&P or "A2" or higher from Moody's.
"Change of Control" means, (i) any sale, lease, exchange or other
transfer (collectively, a "Transfer") (in one transaction or a series of
related transactions) of all or
5
substantially all of the assets of either of the Issuers or either of the
Issuers and their Restricted Subsidiaries on a consolidated basis or (ii) a
majority of the Board of Directors of either of the Issuers or of any direct
or indirect holding company thereof shall consist of Persons who are not
Continuing Directors of such Issuer; or (iii) the acquisition by any Person
or Group (other than Alan R. Brill or any Related Brill Party) of the power,
directly or indirectly, to vote or direct the voting of securities having
more than 35% of the ordinary voting power for the election of directors of
either of the Issuers, or any direct or indirect holding company thereof;
provided, however, that no Change of Control shall be deemed to occur
pursuant to this clause (iii), so long as Alan R. Brill and the Related Brill
Parties collectively own an amount of securities representing the power,
directly or indirectly, to vote or direct the voting of securities having
more than 50% of the ordinary voting power for the election of directors of
such Issuer or of any direct or indirect holding company thereof.
"Commission" means the U.S. Securities and Exchange Commission or
its successor.
"Consolidated EBITDA" means, for any period an amount equal to
Consolidated Net Income for such period, plus the following to the extent
deducted in calculating such Consolidated Net Income: (i) the provision for
taxes for such period based on income or profits and any provision for
taxes utilized in computing net loss, (ii) Consolidated Interest Expense,
(iii) depreciation expense, (iv) amortization expense (including the
amortization of debt issuance costs), (v) all other non-cash items reducing
Consolidated Net Income for such period (excluding any non-cash item to the
extent it represents an accrual of or reserve for cash disbursements for
any subsequent period prior to the Stated Maturity of the Securities or
amortization of a pre-paid cash expense that was paid in a prior period),
minus (b) all non-cash items increasing Consolidated Net Income for such
period, in each case on a consolidated basis for the Issuers and their
respective Restricted Subsidiaries for such period determined in accordance
with GAAP, provided, however, that, for purposes of calculating
Consolidated EBITDA during any fiscal quarter, cash income from a
particular Investment (other than a Managed Affiliate Note) of such Person
shall be included only (x) if cash income has been received by such Person
with respect to such Investment during each of the previous four fiscal
quarters, or (y) if the cash income derived from such Investment is
attributable to Temporary Cash Investments.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Issuers and their respective Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP,
plus, to the extent not included in such interest expense, (i) interest
expense attributable to Capitalized Lease Obligations, (ii) capitalized
interest, (iii) non-cash interest expense, (iv) commissions, discounts and
6
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (v) interest actually paid by either Issuer or any
such Restricted Subsidiary under any Guarantee of Indebtedness or other
obligation of any other Person, (vi) net payments (whether positive or
negative) pursuant to Interest Rate Agreements, (vii) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than an Issuer) in connection with Indebtedness
Incurred by such plan or trust and (viii) cash and Disqualified Stock
dividends in respect of all Preferred Stock of Subsidiaries and
Disqualified Stock of an Issuer held by Persons other than an Issuer or a
Wholly-Owned Subsidiary and less (a) to the extent included in such
interest expense, the amortization of capitalized debt issuance costs and
(b) interest income. Notwithstanding the foregoing, the Consolidated
Interest Expense with respect to any Restricted Subsidiary of an Issuer,
that was not a Wholly-Owned Subsidiary, shall be included only to the
extent (and in the same proportion) that the net income of such Restricted
Subsidiary was included in calculating Consolidated Net Income.
"Consolidated Leverage Ratio" means, on any Transaction Date, the
ratio of (i) the aggregate amount of Indebtedness of the Issuers and their
Restricted Subsidiaries on a consolidated basis outstanding on such
Transaction Date (other than Indebtedness under the Appreciation Notes)
less the cash and Cash Equivalents held by the Issuers and their respective
Restricted Subsidiaries on a consolidated basis on such Transaction Date to
(ii) the amount of Media Cashflow for the then most recent four fiscal
quarters for which financial statements of the Issuers have been filed with
the Commission or provided to the Trustee pursuant to Section 4.03 (such
four fiscal quarter period being the "Four Quarter Period"); provided,
however, that, in making the foregoing calculation, (A) pro forma effect
shall be given to any Indebtedness to be Incurred or repaid on the
Transaction Date; (B) pro forma effect shall be given to Asset Dispositions
and Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur from the
beginning of the Four Quarter Period through and including the Transaction
Date (the "Reference Period"), as if they had occurred and such proceeds
had been applied on the first day of such Reference Period; and (C) pro
forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any
asset disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into an Issuer or any
Restricted Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset
disposition or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period;
provided, further, that to the extent that clause (B) or (C) of this
sentence requires that pro forma effect be given to an Asset Acquisition or
Asset Disposition, such pro forma calculation shall be based
7
upon the four full fiscal quarters immediately preceding the Transaction Date
of the Person, or division or line of business of the Person, that is
acquired or disposed of for which financial information is available.
"Consolidated Net Income" means, for any period, the consolidated
net income (loss) of the Issuers and their respective consolidated
Restricted Subsidiaries determined in accordance with GAAP; provided,
however, that there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person acquired by an Issuer or any of its
Restricted Subsidiaries in a pooling of interests transaction for any
period prior to the date of such acquisition, (ii) any net income of any
Restricted Subsidiary of an Issuer if such Restricted Subsidiary is subject
to restrictions, directly or indirectly, on the payment of dividends or the
making of distributions by such Restricted Subsidiary, directly or
indirectly, to an Issuer (other than restrictions in effect on the Issue
Date with respect to a Restricted Subsidiary of such Issuer and other than
restrictions that are created or exist in compliance with Section 4.08),
(iii) any gain or loss realized upon the sale or other disposition of any
assets of an Issuer or its consolidated Restricted Subsidiaries (including
pursuant to any Sale Leaseback Transaction) which are not sold or otherwise
disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of any
Person, (iv) any extraordinary gain or loss, (v) the cumulative effect of a
change in accounting principles, (vi) the net income of any Person, other
than a Restricted Subsidiary, except to the extent of the lesser of (A)
cash dividends or distributions actually paid to an Issuer or any of its
Restricted Subsidiaries by such Person and (B) the net income of such
Person (but in no event less than zero), and the net loss of such Person
(other than an Unrestricted Subsidiary) shall be included only to the
extent of the aggregate Investment of an Issuer or any of its Restricted
Subsidiaries in such Person and (vii) any non-cash expenses attributable to
grants or exercises of employee stock options. Notwithstanding the
foregoing, for the purpose of Section 4.07 only, (x) there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Issuer or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under
such covenant pursuant to clause (a) (3) (D) thereof and (y) there shall be
added to Consolidated Net Income the amount of any accruals under the
Performance Compensation Agreements to the extent deducted in determining
such Consolidated Net Income.
"Consolidated Net Worth" means the total of the amounts shown on
the balance sheets of the Issuers and their consolidated Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
as of the end of the most recent fiscal quarter of the Issuers ending prior
to the taking of any action for the purpose of which the determination is
being made and for which financial statements are available (but in no
8
event ending more than 135 days prior to the taking of such action), as (i)
the par or stated value of all outstanding Capital Stock of an Issuer plus
(ii) paid in capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any accumulated
deficit and (B) any amounts attributable to Disqualified Stock.
"Consolidated Senior Leverage Ratio" means, on any Transaction
Date, the Consolidated Leverage Ratio on such Transaction Date; provided,
however, that the reference to "Indebtedness" in clause (i) of the
definition of Consolidated Leverage Ratio shall be deemed to be a reference
to "Senior Indebtedness."
"Consolidated Senior Secured Leverage Ratio" means, on any
Transaction Date, the Consolidated Leverage Ratio on such Transaction Date;
provided, however, that the reference to "Indebtedness" in clause (i) of
the definition of Consolidated Leverage Ratio shall be deemed to be a
reference to "Senior Secured Indebtedness."
"Consolidated Unrestricted Subsidiary Advance Leverage Ratio"
means, on any Transaction Date, the Consolidated Leverage Ratio on such
Transaction Date; provided, however, that clause (i) of the definition of
Consolidated Leverage Ratio shall be deemed to be a reference to
"Unrestricted Subsidiary Advances."
"Continuing Director" of any Person means, as of the date of
determination, any Person who (i) was a member of the Board of Directors of
such Person on the date of this Indenture or (ii) was nominated for
election or elected to the Board of Directors of such Person with the
affirmative vote of a majority of the Continuing Directors of such Person
who were members of such Board of Directors at the time of such nomination
or election.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.02 or such other address as to which
the Trustee may give notice to the Issuers.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
9
"Disqualified Stock" means any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (other than an
event which would constitute a Change of Control), (i) matures (excluding
any maturity as the result of an optional redemption by the issuer thereof)
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole
or in part, on or prior to the final Stated Maturity of the Securities, or
(ii) is convertible into or exchangeable (unless at the sole option of the
issuer thereof) for (a) debt securities or (b) any Capital Stock referred
to in (i) above, in each case at any time prior to the final Stated
Maturity of the Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder or any successor statute or statutes thereto.
"Exchange Offer" means the registration by the Issuers and the
Subsidiary Guarantors under the Securities Act pursuant to a registration
statement of the offer by the Issuers and the Subsidiary Guarantors to each
Securityholder of the Initial Securities to exchange all the Initial
Securities held by such Securityholder for the Exchange Securities in an
aggregate principal amount equal to the aggregate principal amount of the
Initial Securities held by such Securityholder, all in accordance with the
terms and conditions of the Registration Rights Agreement.
"Exchange Securities" has the meaning set forth in the preamble
to this Indenture.
"Existing Indebtedness" means Indebtedness of either of the
Issuers or their respective Restricted Subsidiaries in existence on the
Issue Date, plus interest accrued thereon, after application of the net
proceeds of the Securities as described in the Offering Memorandum.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Fair market value shall be determined by the Board of
Directors of BMC acting reasonably and in good faith and shall be evidenced
by a Board Resolution of the Board of Directors of BMC delivered to the
Trustee.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture,
including those set forth in the
10
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained
in this Indenture shall be computed in conformity with GAAP.
"Group" means any "group" for purposes of Section 13(d) of the
Exchange Act.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for purposes of assuring in any other manner the obligee
of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided, however,
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Restricted Subsidiary at the time it becomes
a Restricted Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if
any) in respect of indebtedness of such Person for borrowed money, (ii) the
principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of letters of credit or other
similar instruments (including reimbursement obligations with respect
thereto) (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (i), (ii) and (v))
entered into in the ordinary course of business of such Person to the
extent that such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or
services (except (x) trade payables and accrued expenses (including accrued
11
management fees under the Administrative Management Agreements) incurred in
the ordinary course of business and (y) contingent or "earnout" payment
obligations in respect of any Permitted Business acquired by an Issuer or
any Restricted Subsidiary), which purchase price is due more than six
months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services, (v) all
Capitalized Lease Obligations and all Attributable Indebtedness of such
Person, (vi) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person, (vii) all Indebtedness of other Persons to the extent Guaranteed by
such Person, (viii) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Restricted Subsidiary of an
Issuer, any Preferred Stock of such Restricted Subsidiary to the extent
such obligation arises on or before the final Stated Maturity of the
Securities (but excluding, in each case, accrued dividends) with the amount
of Indebtedness represented by such Disqualified Stock or Preferred Stock,
as the case may be, being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price;
provided, however, that, for purposes hereof the "maximum fixed repurchase
price" of any Disqualified Stock or Preferred Stock, as the case may be,
which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock or Preferred Stock, as
the case may be, as if such Disqualified Stock or Preferred Stock, as the
case may be, were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is
based on the fair market value of such Disqualified Stock or Preferred
Stock, as the case may be, such fair market value shall be determined in
good faith by the Board of Directors of BMC and (ix) to the extent not
otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements. Unless specifically set forth
above, the amount of Indebtedness of any Person at any date shall be the
outstanding principal amount of all unconditional obligations as described
above, as such amount would be reflected on a balance sheet prepared in
accordance with GAAP, and the maximum liability of such Person, upon the
occurrence of the contingency giving rise to the obligation, of any
contingent obligations described above at such date. Notwithstanding the
foregoing, Indebtedness shall not include any accrued obligations under
Performance Compensation Agreements.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchaser" means NatWest Capital Markets Limited.
"Initial Securities" has the meaning set forth in the preamble to
this Indenture.
12
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person
is party or a beneficiary.
"Interest Record Date" means the record dates specified in the
Securities, whether or not a Legal Holiday.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business
that are recorded as accounts payable on the balance sheet of such Person)
or other extension of credit (including by way of Guarantee or similar
arrangement, but excluding any debt or extension of credit represented by a
bank deposit other than a time deposit) 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
or acquisition of Capital Stock, Indebtedness or other similar instruments
issued by such Person. For purposes of Section 4.07, (i) "Investment"
shall include the portion (proportionate to an Issuer's equity interest in
a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of
the fair market value of the net assets of such Restricted Subsidiary of
such Issuer at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, such Issuer shall be deemed to
continue to have a permanent "Investment" in an Unrestricted Subsidiary in
an amount (if positive) equal to (x) such Issuer's "Investment" in such
Subsidiary at the time of such redesignation less (y) the portion
(proportionate to such Issuer's equity interest in such Subsidiary) of the
fair market value of the net assets of such Subsidiary at the time that
such Subsidiary is so redesignated a Restricted Subsidiary; and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer, in each case as
determined in good faith by the Board of Directors of BMC and evidenced by
a Board Resolution delivered to the Trustee.
"Issue Date" means the date on which the Initial Securities are
originally issued.
13
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Managed Affiliate" means a Person at least 90% of the Capital
Stock of which is owned, directly or indirectly, by Alan R. Brill;
provided, however, that (i) such Person is engaged solely in a Permitted
Business, (ii) such Person is a party to a Managed Affiliate Management
Agreement and (iii) except in the case of TSB III, LLC and TSB IV, LLC, the
business of such Person is acquired by Alan R. Brill, directly or
indirectly, after the Issue Date.
"Managed Affiliate Note" means any promissory notes of a Managed
Affiliate, issued to an Issuer or a Restricted Subsidiary, each of which
promissory notes shall (i) mature on a day no later than the third
anniversary of the date of issuance thereof, (ii) become immediately due
and payable upon (w) the default by such Managed Affiliate under the
Managed Affiliate Management Agreement to which it is party or (x) the
issuer thereunder ceasing to constitute a Managed Affiliate or (y) the
acceleration of the Securities or (z) the bankruptcy, insolvency or
reorganization of an Issuer and (iii) bear interest payable in cash no less
often than semi-annually at a rate per annum no less than the rate of
interest payable on the Securities. Each Managed Affiliate Note shall
provide that the payment of any management fee by the relevant Manager
Affiliate pursuant to any management agreement (other than a Managed
Affiliate Management Agreement) with an Affiliate of an Issuer or such
Managed Affiliate, shall be subordinated to the obligations of the relevant
Managed Affiliate under such Managed Affiliate Note to the same extent as
the obligations of the Issuers and the Subsidiary Guarantors under the
Administrative Management Agreements are subordinated to the obligations of
such Persons under the Securities and the Subsidiary Guarantees.
"Managed Affiliate Management Agreement" means any agreement
between a Restricted Subsidiary, on the one hand, and a Managed Affiliate,
on the other hand, providing for the payment by such Managed Affiliate to
one or more Restricted Subsidiaries of a cash management fee payable at
least semi annually equal to a specified percentage of the excess cash flow
of such Managed Affiliate as defined in such agreement.
"Maturity Date" means December 15, 2007.
"Media" has the meaning set forth in the preamble to this
Indenture until a Successor replaces such Person in accordance with Article
5 hereof and thereafter means such Successor.
14
"Media Cashflow" for any period means for any Person an amount
equal to Consolidated EBITDA for such period plus interest income received
in respect of the Managed Affiliate Notes during such period and the
following to the extent deducted in calculating such Consolidated EBITDA
(i) management fees charged by BMCLP under the Administrative Management
Agreements, (ii) expenses accruing under Performance Compensation
Agreements , (iii) consulting fees payable in connection with acquisitions
and (iv) fees paid under time brokerage agreements.
"Member" means any Person who holds a membership interest in BMC.
"Missouri Properties" means the radio stations KLIK-AM, KTXY-FM
and KATI-FM serving Jefferson City, MO.
"Moody's" means Moody's Investors Service, Inc., or its
successors.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets
subject to such Asset Disposition) therefrom in each case net of (i) all
legal, title and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, foreign and local taxes required
to be paid or accrued as a liability under GAAP, as a consequence of such
Asset Disposition, (ii) all payments made on any Indebtedness which is
secured by any assets subject to such Asset Disposition, in accordance with
the terms of any Lien upon such assets, or which must by its terms, or in
order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to any
Person owning a beneficial interest in assets subject to sale or minority
interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition, (iv) the deduction of appropriate amounts to be provided
by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the assets disposed of in such Asset
Disposition and retained by an Issuer or any Restricted Subsidiary of an
Issuer after such Asset Disposition, provided, however, that upon any
reduction in such reserves (other than to the extent resulting from
payments of the respective reserved liabilities), Net Available Cash shall
be increased by the amount of such reduction to reserves, and (v) any
portion of the purchase price from an Asset Disposition placed in escrow
(whether as a reserve for adjustment of the purchase price, for
satisfaction of indemnities in respect of such Asset Disposition or
otherwise in connection with such Asset Disposition); provided, however,
that upon the
15
termination of such escrow, Net Available Cash shall be increased by any
portion of funds therein released to an Issuer or any Restricted Subsidiary.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees or
expenses actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result of such issuance or sale.
"Non-Recourse Debt" means Indebtedness (i) as to which neither an
Issuer nor any Restricted Subsidiary (a) provides any guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity,
agreement or instrument that would constitute Indebtedness) or (b) is
directly or indirectly liable (as a guarantor, general partner or
otherwise) and (ii) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both)
any holder of any other Indebtedness of an Issuer or any Restricted
Subsidiary to declare a default under such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S of the Securities Act.
"Obligations" means any principal, premium, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated
December 23, 1997, pursuant to which the Initial Securities were offered,
and any supplements thereto.
"Officer" means the Chairman of the Board, the Vice-Chairman of
the Board, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice-President, the Treasurer or the Secretary of an Issuer
(or, in the case of BMC, so long as it is a limited liability company or as
partnership, of Brill Media Management, Inc., which is the manager of BMC).
"Officers' Certificate" means a certificate signed by two
Officers of an Issuer at least one of whom shall be the principal
executive, financial or accounting officer of such Issuer.
16
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee, and which complies, if applicable, with
the provisions of Section 11.04 hereof. The counsel may be an employee of
or counsel to an Issuer or the Trustee.
"Performance Compensation Agreement" means any agreements between
an Issuer or any Restricted Subsidiary and any executive officer of such
Subsidiary pursuant to which such Subsidiary provides deferred compensation
to such officer by crediting amounts (as determined under a formula set
forth in such agreement) to an identified account for the benefit of such
executive officer. Performance Compensation Agreements entered into after
the Issue Date shall provide that no payment shall be required to be made
by an Issuer or any Restricted Subsidiary thereunder if such payment is not
permitted under this Indenture and that the Issuers' and the Restricted
Subsidiaries' obligations to make payments thereunder shall be subordinated
to (i) the obligations of the Issuers and the Subsidiary Guarantors under
the Securities and the Subsidiary Guarantees and (ii) the obligations of
the Issuers and the Subsidiary Guarantors under the Appreciation Notes and
the Guarantees thereof.
"Permitted Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the Issuers
and their Restricted Subsidiaries on the date of this Indenture, as
reasonably determined by the Board of Directors of BMC.
"Permitted Investment" means an Investment by an Issuer or any of
its Restricted Subsidiaries in (i) a Wholly-Owned Subsidiary of such
Issuer; provided, however, that the primary business of such Wholly-Owned
Subsidiary is a Permitted Business; (ii) another Person if as a result of
such Investment such other Person becomes a Wholly-Owned Subsidiary of such
Issuer or is merged or consolidated with or into, or transfers or conveys
all or substantially all its assets to, such Issuer or a Wholly-Owned
Subsidiary of such Issuer; provided, however, that in each case such
Person's primary business is a Permitted Business; (iii) Temporary Cash
Investments; (iv) receivables owing to such Issuer or any of its Restricted
Subsidiaries, created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; (v)
payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(vi) loans and advances to employees made in the ordinary course of
business consistent with past practices of such Issuer or such Restricted
Subsidiary in an aggregate amount outstanding at any one time not to exceed
$250,000 to any one employee or $1.0 million in the aggregate; (vii) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to such Issuer or any of its
Restricted Subsidiaries or in satisfaction of judgments or claims; (viii)
17
a Person engaged in a Permitted Business or a loan or advance by such Issuer
the proceeds of which are used solely to make an investment in a Person
engaged in a Permitted Business or a Guarantee by such Issuer of
Indebtedness of any Person in which such Investment has been made provided,
however, that no Permitted Investments may be made pursuant to this clause
(viii) to the extent the amount thereof would, when taken together with all
other Permitted Investments made pursuant to this clause (viii), exceed
$5.0 million in the aggregate (plus, to the extent not previously
reinvested, any return of capital realized on Permitted Investments made
pursuant to this clause (viii), or any release or other cancellation of any
Guarantee constituting such Permitted Investment); (ix) Persons to the
extent such Investment is received by such Issuer or any Restricted
Subsidiary as consideration for asset dispositions effected in compliance
with Section 4.10; (x) prepayments and other credits to suppliers made in
the ordinary course of business consistent with the past practices of such
Issuer and its Restricted Subsidiaries, (xi) the Managed Affiliate Notes;
provided, however, that the aggregate principal amount thereof (including
any Managed Affiliate Notes outstanding on the Issue Date) does not exceed
$20 million at any time outstanding, (xii) loans to Unrestricted
Subsidiaries; provided, however, that (1) no Default or Event of Default
shall have occurred and be continuing at the time of the Incurrence thereof
by the relevant Unrestricted Subsidiary or would occur as a consequence
thereof and the Consolidated Unrestricted Subsidiary Advance Leverage Ratio
would not be greater than 2.00 to 1.00, (2) such advances are senior to all
other Indebtedness of the relevant Unrestricted Subsidiary other than
Capitalized Lease Obligations, mortgage financing or purchase money
obligations outstanding on the date on which such Unrestricted Subsidiary
was acquired, directly or indirectly, by such Issuer or the date such
Subsidiary was designated an Unrestricted Subsidiary (other than
Indebtedness Incurred in anticipation of, or to provide all or any portion
of the funds or credit support utilized to consummate the transaction or
series of related transactions pursuant to which such Unrestricted
Subsidiary became a Subsidiary or was otherwise acquired by such Issuer or
was designated as an Unrestricted Subsidiary) and (3) such Unrestricted
Subsidiary is engaged primarily in a Permitted Business; and (xiii)
Investments in connection with pledges, deposits, payments or performance
bonds made or given in the ordinary course of business in connection with
or to secure statutory, regulatory or similar obligations, including
obligations under health, safety or environmental obligations.
"Permitted Liens" means: (i) pledges or deposits by an Issuer or
any Restricted Subsidiary under workmen's compensation laws, unemployment
insurance laws, other types of social security benefits or similar
legislation, or good faith deposits in connection with bids, tenders or
contracts (other than for the payment of Indebtedness) or leases to which
an Issuer or any Restricted Subsidiary is a party, or deposits to secure
public or statutory obligations or deposits of cash or United States
government bonds to secure
18
surety or appeal bonds to which an Issuer or any Restricted Subsidiary is a
party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case incurred by an Issuer or any Restricted
Subsidiary in the ordinary course of business consistent with past practice;
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
Liens, in each case for sums not yet due from an Issuer or any Restricted
Subsidiary or being contested in good faith by appropriate proceedings by an
Issuer or any Restricted Subsidiary, as the case may be, or other Liens
arising out of judgments or awards against an Issuer or any Restricted
Subsidiary with respect to which such Issuer or such Restricted Subsidiary,
as the case may be, will then be prosecuting an appeal or other proceedings
for review; (iii) Liens for property taxes or other taxes, assessments or
governmental charges of an Issuer or any Restricted Subsidiary not yet due or
payable or subject to penalties for nonpayment or which are being contested
by such Issuer or such Restricted Subsidiary, as the case may be, in good
faith by appropriate proceedings; (iv) Liens in favor of issuers of
performance bonds and surety bonds issued pursuant to clause (b)(v) of
Section 4.09; (v) survey exceptions, encumbrances, easements or, reservations
of, or rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes or zoning or other
restrictions as to the use of real property of an Issuer or any Restricted
Subsidiary incidental to the ordinary course of conduct of the business of
such Issuer or such Restricted Subsidiary or as to the ownership of
properties of such Issuer or any Restricted Subsidiary, which, in either
case, were not incurred in connection with Indebtedness and which do not in
the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Issuer
or any Restricted Subsidiary; (vi) Liens to secure Indebtedness permitted
under clause (b)(i) of Section 4.09; (vii) Liens outstanding immediately
after the Issue Date as set forth on Schedule II to this Indenture (and not
otherwise permitted by clause (vi)); (viii) Liens on property, assets or
shares of stock of any Restricted Subsidiary at the time such Restricted
Subsidiary became a Subsidiary of an Issuer; provided, however, that (A) if
any such Lien has been Incurred in anticipation of such transaction, such
property, assets or shares of stock subject to such Lien will have a fair
market value at the date of the acquisition thereof not in excess of the
lesser of (1) the aggregate purchase price paid or owed by such Issuer in
connection with the acquisition of such Restricted Subsidiary and (2) the
fair market value of all property and assets of such Restricted Subsidiary
and (B) any such Lien will not extend to any other assets owned by such
Issuer or any Restricted Subsidiary; (ix) Liens on property or assets at the
time an Issuer or any Restricted Subsidiary acquired such assets, including
any acquisition by means of a merger or consolidation with or into such
Issuer or such Restricted Subsidiary; provided, however, that (A) if any such
Lien is Incurred in anticipation of such transaction, such property or assets
subject to such Lien will have a fair market value at the date of the
acquisition thereof not in excess of the lesser of the aggregate purchase
price paid or owed by such Issuer or such Restricted Subsidiary in connection
with the acquisition thereof and
19
of any other property and assets acquired simultaneously therewith and (2)
the fair market value of all such property and assets acquired by such Issuer
or such Restricted Subsidiary and (B) any such Lien will not extend to any
other property or assets owned by such Issuer or any Restricted Subsidiary;
(x) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to an Issuer or a Wholly Owned Subsidiary; (xi) Liens to
secure any extension, renewal, refinancing, replacement or refunding (or
successive extensions, renewals, refinancings, replacements or refundings),
in whole or in part, of any Indebtedness secured by Liens referred to in any
of clauses (vii), (viii) and (ix); provided, however, that any such Lien will
be limited to all or part of the same property or assets that secured the
original Lien (plus improvements on such property) and the aggregate
principal amount of Indebtedness that is secured by such Lien will not be
increased to an amount greater than the sum of (A) the outstanding principal
amount, or, if greater, the committed amount, of the Indebtedness described
under clauses (vii), (viii) and (ix) at the time the original Lien became a
Permitted Lien under this Indenture and (B) an amount necessary to pay any
premiums, fees and other expenses Incurred by such Issuer in connection with
such refinancing, refunding, extension, renewal or replacement; (xii) Liens
on property or assets of an Issuer securing Interest Rate Agreements and
Currency Agreements permitted under Section 4.09, so long as the related
Indebtedness is secured by a Lien on the same property securing the relevant
Interest Rate Agreement or Currency Agreement; (xiii) Liens on property or
assets of an Issuer or any Restricted Subsidiary securing Indebtedness under
Sale/Leaseback Transactions permitted under Section 4.16; provided, however,
that (A) the amount of Indebtedness Incurred in any specific case does not,
at the time such Indebtedness is Incurred, exceed the lesser of the cost or
fair market value of the property or asset subject to such Sale/Leaseback
Transaction, (B) such Lien will attach to such property or asset upon
commencement of such Sale/Leaseback Transaction and (C) no property or asset
of such Issuer or any Restricted Subsidiary (other than the property subject
to such Sale/Leaseback Transaction) are subject to any Lien securing such
Indebtedness; and (xiv) Liens securing Indebtedness permitted to be secured
pursuant to the proviso to clause (ii) of paragraph (a) of Section 4.09.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other
class of such corporation.
20
"Public Equity Offering" means underwritten public offerings or
quotations or placements of Capital Stock of an Issuer (other than
Disqualified Stock) which has been registered with the Commission under the
Securities Act.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, replaces, renews, repays or extends (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances," and
"refinanced" shall have a correlative meaning) any Indebtedness existing on
the date of this Indenture or Incurred in compliance with this Indenture
(including Indebtedness of an Issuer that refinances Indebtedness of any
Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that
refinances Indebtedness of another Restricted Subsidiary) including
Indebtedness that refinances Refinancing Indebtedness; provided, however;
that (i) the Refinancing Indebtedness has a Stated Maturity no earlier than
the earlier of (A) the first anniversary of the Stated Maturity of the
Securities and (B) Stated Maturity of the Indebtedness being refinanced,
(ii) the Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the
lesser of (A) the Average Life of the Securities and (B) the Average Life
of the Indebtedness being refinanced, and (iii) the Refinancing
Indebtedness is in an aggregate principal amount (or if issued with
original issue discount, an aggregate issue price) that is equal to (or
101% of, in the case of a refinancing of the Securities in connection with
a Change of Control) or less than the sum of the aggregate principal amount
(or if issued with original issue discount, the aggregate accreted value)
then outstanding of the Indebtedness being refinanced (plus the amount of
any premium required to be paid in connection therewith and reasonable fees
and expenses therewith); provided, however, that if the Indebtedness being
refinanced is Existing Indebtedness which was a purchase money obligation,
mortgage or Capital Lease, the Refinancing Indebtedness is an aggregate
principal amount that is equal to or less than the lesser of the original
principal amount of such Existing Indebtedness and the fair market value
(determined on the date of such Refinancing Indebtedness is Incurred) of
the personal property securing such Existing Indebtedness or the personal
property of similar nature and quality replacing such personal property;
provided, further, that Refinancing Indebtedness shall not include
Indebtedness of a Subsidiary which refinances Indebtedness of an Issuer.
"Registration Rights Agreement" means the Registration Rights
Agreement dated December 30, 1997 among the Issuers, the Subsidiary
Guarantors and the Initial Purchaser for the benefit of themselves and the
Securityholders, as the same may be amended or modified from time to time
in accordance with the terms thereof.
21
"Related Brill Party" means (A) the spouse or immediate family
member of Alan R. Brill or (B) any trust, corporation, partnership or other
entity, the beneficiaries, shareholders, partners, members, owners or
Persons beneficially holding an 80% or more controlling interest of which
consist of Alan R. Brill and/or such other Persons referred to in the
immediately preceding clause (A).
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or
any successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act.
"Restricted Subsidiary" means any Subsidiary of the Issuer other
than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc, or its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby an Issuer or a Restricted
Subsidiary transfers such property to a Person and such Issuer or a
Subsidiary of such Issuer leases it from such Person.
"Securities" means the Initial Securities and the Exchange
Securities treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that
are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Securityholder" or "Holder" means a registered holder of one or
more Securities.
22
"Senior Indebtedness" means all Indebtedness of an Issuer and its
Restricted Subsidiaries other than Subordinated Obligations.
"Senior Secured Indebtedness" means Indebtedness of an Issuer and
its Restricted Subsidiaries which is secured by a Lien; provided, however,
that for purposes of the Consolidated Senior Secured Leverage Ratio, the
full amount of Senior Secured Indebtedness permitted to be outstanding
under clause (i) of paragraph (b) of Section 4.09 shall be deemed to be
outstanding.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of an Issuer within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision.
"Subordinated Obligation" means any Indebtedness of an Issuer or
a Restricted Subsidiary (whether outstanding on the Issue Date or
thereafter Incurred) which is subordinate or junior in right of payment to
the Securities and the Subsidiary Guarantees pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i)
such Person, (ii) such Person and one or more Subsidiaries of such Person
or (iii) one or more Subsidiaries of such Person. Unless otherwise
specified herein, each reference to a Subsidiary shall refer to a
Subsidiary of an Issuer.
"Subsidiary Guarantee" means the Guarantee of the Securities by a
Subsidiary Guarantor.
"Subsidiary Guarantor" means each Subsidiary of an Issuer on the
Issue Date and each newly organized or acquired Restricted Subsidiary that
executes and delivers a supplemental indenture pursuant to Section 10.07.
"Tax Allowance Amount" means, with respect to any Member, for any
calendar quarter, (i) forty percent (40%) of the excess of (a) the
estimated taxable income
23
allocable to such Member arising from its ownership of an interest in BMC for
the fiscal year through such calendar quarter over (b) any losses of BMC for
prior fiscal years and such fiscal year that are allocable to such Member
that were not previously utilized in the calculation of Tax Allowance Amounts
for any period minus (ii) prior distributions of Tax Allowance Amounts for
such fiscal year, all as determined by the Accountants in good faith. The
amount so determined by the Accountants shall be the Tax Allowance Amount for
such period and shall be final and binding on all Members.
"Temporary Cash Investments" means any of the following: (i) any
Investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or
any agency thereof, (ii) Investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 365 days of the date
of acquisition thereof issued by a bank or trust company which is organized
under the laws of the United States of America, any state thereof or any
foreign country recognized by the United States of America having capital
surplus and undivided profits aggregating in excess of $250 million (or the
foreign currency equivalent thereof) and whose long-term debt, or whose
parent holding company's long-term debt, is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act), (iii) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in
clause (ii) above, (iv) Investments in commercial paper, maturing not more
than 365 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Issuer) organized and in existence under the laws
of the United States of America or any foreign country recognized by 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, (v) Investments in securities with
maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority
thereof, and rated at least "A" by S&P or "A" by Moody's and (vi)
Investments in mutual funds whose investment guidelines restrict such
funds' investments to those satisfying the provisions of clauses (i)
through (v) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03 hereof;
provided, however, that, in the event the Trust Indenture Act of 1939 is
amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
24
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by an Issuer or any of its Subsidiaries, the date such
Indebtedness is to be Incurred.
"Trustee" means United States Trust Company of New York, a
banking corporation organized and existing under the laws of the State of
New York, until a successor replaces it in accordance with Article 7 and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of an Issuer
that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of such Issuer in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors of an Issuer may designate any Subsidiary of such Issuer
(including any newly acquired or newly formed Subsidiary of such Issuer) to
be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds
any Lien on any property of, an Issuer or any Restricted Subsidiary of an
Issuer that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of such designation, and does not
thereafter create, Incur, issue, assume, Guarantee or otherwise becomes
liable with respect to any Indebtedness other than Non-Recourse Debt and
either (A) the Subsidiary to be so designated has total consolidated assets
of $10,000 or less or (B) if such Subsidiary has consolidated assets
greater than $10,000, then such designation would be permitted under
Section 4.07. The Board of Directors of an Issuer may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary subject to the
limitations contained in Section 4.17.
"Unrestricted Subsidiary Advance" means loans made by an Issuer
and its Restricted Subsidiaries to Unrestricted Subsidiaries.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer's
option.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary of an
Issuer, at least 95% of the Capital Stock of which (other than directors'
qualifying shares) is owned by such Issuer or another Wholly-Owned
Subsidiary.
25
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"actual knowledge". . . . . . . . . . . . . . . . . . . . . . . . . . .7.02
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . . .4.11
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.16
"Asset Disposition Offer" . . . . . . . . . . . . . . . . . . . . . . .3.09
"Asset Swap". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.10
"Bankruptcy Law". . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"Change of Control Purchase Price". . . . . . . . . . . . . . . . . . .4.14
"covenant defeasance option". . . . . . . . . . . . . . . . . . . . . .8.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"Declaration" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.02
"Default Amount". . . . . . . . . . . . . . . . . . . . . . . . . . . .6.02
"Designation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.17
"Designated Amount" . . . . . . . . . . . . . . . . . . . . . . . . . .4.17
"Event of Default". . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . .4.10
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
"Global Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.01
"Guaranteed Obligations". . . . . . . . . . . . . . . . . . . . . . . 10.01
"judgment default provision". . . . . . . . . . . . . . . . . . . . . .6.01
"legal defeasance option" . . . . . . . . . . . . . . . . . . . . . . .8.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.07
"Notice of Default" . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"Offer Amount". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"Offer Period". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"Offshore Physical Securities". . . . . . . . . . . . . . . . . . . . .2.01
"Paying Agent". . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"Payment Default" . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"Physical Securities" . . . . . . . . . . . . . . . . . . . . . . . . .2.01
"Private Placement Legend". . . . . . . . . . . . . . . . . . . . . . .2.15
"Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"Restricted Payment". . . . . . . . . . . . . . . . . . . . . . . . . .4.07
"Revocation". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.17
"Successor Company" . . . . . . . . . . . . . . . . . . . . . . . . . .5.01
"U.S. Physical Securities". . . . . . . . . . . . . . . . . . . . . . .2.01
26
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities and the Subsidiary
Guarantees;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Issuer, the Guarantors and
any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular; and
(v) provisions apply to successive events and transactions.
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ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Initial Securities, the notation thereon relating to the
Subsidiary Guarantees and the Trustee's certificate of authentication
thereon shall be substantially in the form of Exhibit A hereto. The
Exchange Securities, the notation thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit B hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
Depository rule or usage. The Issuers, the Subsidiary Guarantors and the
Trustee shall approve the form of the Securities and any notation, legend
or endorsement on them. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the forms of the Securities
and the Subsidiary Guarantees, annexed hereto as Exhibits A and B, shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Issuers, the Subsidiary Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global notes in
registered form, in substantially the form set forth in Exhibit A (the
"Global Note"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Issuers and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of the Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in
Exhibit A (the "Offshore Physical Securities"). Securities offered and
sold in reliance on any other exemption from registration under the
Securities Act other than as described in the preceding paragraph shall be
issued, and Securities offered and sold in reliance on Rule 144A may be
issued, in the form of permanent certificated Securities in registered
form, in substantially the form set forth in Exhibit A (the "U.S. Physical
Securities"). The Offshore Physical Securities and the U.S. Physical
Securities are sometimes collectively herein referred to as the "Physical
Securities".
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
(a) Two Officers of each Issuer (each of whom shall, in each
case, have been duly authorized by all requisite corporate actions) shall
sign the Securities for such Issuer by manual or facsimile signature. If
an Officer whose signature is on a Security no longer holds that office at
the time the Security is authenticated, the Security shall nevertheless be
valid. Each Subsidiary Guarantor shall execute a Subsidiary Guarantee in
the manner set forth in Section 10.02.
(b) A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
(c) The Trustee shall authenticate (i) Initial Securities for
original issue in the aggregate principal amount not to exceed
$105,000,000, and (ii) Exchange Securities from time to time for issue only
in exchange for a like principal amount of Initial Securities, in each case
upon receipt of a written order of the Issuers.
(d) The Trustee may appoint an authenticating agent acceptable
to the Issuers to authenticate Securities. 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 an Agent to deal with the
Issuers or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
(a) The Issuers shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New
York) where (i) Securities may be presented for registration of transfer or
for exchange ("Registrar"), (ii) Securities may be presented for payment
("Paying Agent") and (iii) notices and demands to or upon the Issuers in
respect of the Securities and this Indenture may be served. The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Issuers may appoint one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
The Issuers may change any Paying Agent, Registrar or co-registrar without
prior notice to any Securityholder. The Issuers shall notify the Trustee and
the Trustee shall notify the Securityholders of the name and address of any
Agent not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as such. An Issuer or any
29
Subsidiary Guarantor may act as Paying Agent, Registrar or co-registrar. The
Issuers shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the provisions of the TIA.
The agreement shall implement the provisions of this Indenture that relate to
such Agent. The Issuers shall notify the Trustee of the name and address of
any such Agent. If the Issuers fail to maintain a Registrar or Paying Agent,
or fail to give the foregoing notice, the Trustee shall act as such, and
shall be entitled to appropriate compensation in accordance with Section 7.07
hereof.
(b) The Issuers initially appoint the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection
with the Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers, the Subsidiary Guarantors or any other obligor on
the Securities shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit
of the Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of, premium, if any, and interest on the
Securities, and shall notify the Trustee of any Default by the Issuers, any
of the Subsidiary Guarantors or any other obligor on the Securities in
making any such payment. While any such Default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The
Issuers, the Subsidiary Guarantors or any other obligor on the Securities
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Issuer or a Subsidiary Guarantor) shall have no further liability for
the money delivered to the Trustee. If an Issuer, any Subsidiary Guarantor
or any other obligor on the Securities acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the
Securityholders all money held by it as Paying Agent.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Issuers, the Subsidiary Guarantors or
any other obligor on the Securities shall furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses
of Securityholders, including the aggregate principal amount of the
Securities held by each thereof, and the Issuers, the Subsidiary Guarantors
or any other obligor on the Securities shall otherwise comply with TIA
Section 312(a).
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SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Where Securities are presented to the Registrar or a
co-registrar with a request to register the transfer thereof or exchange them
for an equal principal amount of Securities of other denominations, the
Registrar shall, subject to Section 2.17, register the transfer or make the
exchange if its requirements for such transactions are met; provided,
however, that any Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the Trustee
duly executed by the Securityholder thereof or his attorney duly authorized
in writing. To permit registrations of transfer and exchanges, the Issuers
shall issue and the Trustee shall authenticate Securities at the Registrar's
request.
(b) The Issuers shall not be required (i) to issue, to register
the transfer of or to exchange Securities during a period beginning at the
opening of business on a Business Day 15 days before the day of any
selection of Securities for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part or (iii) to register the transfer or exchange of a Security between
the Interest Record Date and the next succeeding Interest Payment Date.
(c) No service charge shall be made for any registration of a
transfer or exchange (except as otherwise expressly permitted herein), but
the Issuers may require payment by the Securityholder of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith (other than such transfer tax or similar governmental
charge payable upon exchanges pursuant to Section 2.10, 3.06 or 9.05
hereof).
(d) Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global
Note may be effected only through a book entry system maintained by the
Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Global Note shall be required to be reflected in
a book entry.
SECTION 2.07. REPLACEMENT SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee, or the
Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the
31
Issuers shall issue and the Trustee, upon receipt by it of the written order
of the Issuers signed by two Officers of each of the Issuers, shall
authenticate a replacement Security if the Trustee's requirements for
replacements of Securities are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Issuers to protect the Issuers, the
Subsidiary Guarantors, the Trustee, any Agent or any authenticating agent
from any loss which any of them may suffer if a Security is replaced. The
Issuers and the Trustee may charge a Securityholder for reasonable
out-of-pocket expenses in replacing a Security.
(b) Every replacement Security is an obligation of each of the
Issuers and each of the Subsidiary Guarantors.
SECTION 2.08. OUTSTANDING SECURITIES.
(a) The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by the Issuers or
by the Trustee, those delivered to the Trustee for cancellation and those
described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Security is held by a bona fide purchaser.
(c) If the principal amount of any Security is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
(d) Subject to Section 2.09 hereof, a Security does not cease to
be outstanding because an Issuer or an Affiliate of an Issuer or a
Subsidiary Guarantor holds the Security.
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by an Issuer, a Subsidiary Guarantor, or any of their
respective Affiliates shall be considered as though not outstanding, except
that for purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which a
Responsible Officer knows to be so owned shall be so considered.
SECTION 2.10. TEMPORARY SECURITIES.
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Until definitive Securities are ready for delivery, the Issuers
may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Issuers, the Subsidiary
Guarantors and the Trustee consider appropriate for temporary Securities.
Without unreasonable delay, the Issuers shall prepare and the Trustee, upon
receipt of the written order of the Issuers signed by two Officers of each
of the Issuers, shall authenticate definitive Securities in exchange for
temporary Securities. Until such exchange, temporary Securities shall be
entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION 2.11. CANCELLATION.
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange
or payment. The Trustee shall cancel all Securities, if not already
cancelled, surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Securities (subject
to the record retention requirement of the Exchange Act), and deliver
certification of their destruction to the Issuers, unless by a written
order, signed by two Officers of each of the Issuers, the Issuers shall
direct that cancelled Securities be returned to them. The Issuers may not
issue new Securities to replace Securities that they have redeemed or paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the
Securities, they shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to
the Persons who are Securityholders on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at
least five Business Days prior to the payment date, in each case at the
rate provided in the Securities and in Section 4.01 hereof. The Issuers
shall, with the consent of the Trustee, fix or cause to be fixed each such
special record date and payment date. At least 15 days before the special
record date, the Issuers (or the Trustee, in the name of and at the expense
of the Issuers) shall mail to Securityholders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Issuers in issuing the Securities may use a "CUSIP" number,
and if so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a
33
convenience to Securityholders; provided, however, that no representation
shall be deemed to be made by the Trustee as to the correctness or accuracy
of the CUSIP number printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on
the Securities. The Issuers shall promptly notify the Trustee of any change
in the CUSIP number.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date and Maturity Date, the Issuers shall deposit with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the
Securityholders on such Interest Payment Date or Maturity Date, as the case
may be.
SECTION 2.15. RESTRICTIVE LEGENDS.
Each Global Note and Physical Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") unless otherwise agreed by the Issuers and the Securityholder
thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. 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) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO
34
SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO AN ISSUER THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE),
AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES OF LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE ISSUERS HEREOF THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING AS
DESCRIBED IN CLAUSE (1)(B) ABOVE FROM THE INITIAL PURCHASER OF
THIS NOTE SHALL NOT BE PERMITTED TO TRANSFER THIS NOTE TO AN
INSTITUTIONAL ACCREDITED INVESTOR. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING PURSUANT TO
CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE
35
ISSUERS HEREOF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS ANY OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "UNITED STATES PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY
SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
36
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON 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 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
(a) The Global Note initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth
in Section 2.15.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Note, and the Depository may be treated by the Issuers,
the Trustee and any agent of an Issuer or the Trustee as the absolute owner
of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuers, the Trustee or any
agent of an Issuer or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of the Global Note shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interest of beneficial owners in the Global Note may
be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.17.
In addition, Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Global Note if (i)
the Depository notifies the Issuers that it is unwilling or unable to
continue as Depository for the Global Note and a successor depository is
not appointed by the Issuer within 90 days of such notice or (ii) an Event
of Default has occurred and is continuing and the Registrar has received a
written request from the Depository or the Trustee to issue Physical
Securities.
37
(c) In connection with any registration of transfer or exchange
of a portion of the beneficial interest in the Global Note to beneficial
owners pursuant to paragraph (b) above, the Registrar shall (if one or more
Physical Securities are to be issued) reflect on its books and records the
date and a decrease in the principal amount of the beneficial interest in
the Global Note to be transferred, and the Issuers shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Securities of
like tenor and amount.
(d) In connection with the registration of transfer of the
entire Global Note to beneficial owners pursuant to paragraph (b), the
Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in the Global Note, an
equal aggregate principal amount of Physical Securities of authorized
denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to
paragraph (b) or (c) above shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.17, bear the legend regarding
transfer restrictions applicable to the Physical Securities set forth in
Section 2.15.
(f) The Holder of the Global Note 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
Securityholder is entitled to take under this Indenture or the Securities.
SECTION 2.17. SPECIAL TRANSFER PROVISIONS.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to
any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such
Security bears the Private Placement Legend, if (x) the requested
transfer is after December 30, 1999 or (y) (1) in the case of a
transfer to an Institutional Accredited Investor which is not a
QIB (excluding Non-U.S.Persons), the proposed transferee has
delivered
38
to the Registrar a certificate substantially in the
form of Exhibit C hereto or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D
hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph
(i) above and (y) instructions given in accordance with the
Depository's and the Registrar's procedures, (a) the Registrar
shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of the Global Note
in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and (b) the Issuer
shall execute and the Trustee shall authenticate and deliver one
or more Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked
the box provided for on the form of Security stating, or has
otherwise advised the Issuer and the Registrar in writing, that
the sale has been effected in compliance with the provisions of
Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise
advised the Issuers and the Registrar in writing, that it is
purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that
any such account is a QIB within the meaning of Rule 144A, and it
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 Issuers as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
39
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the Global
Note, upon receipt by the Registrar of instructions given in
accordance with the Depository's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Global Note in an
amount equal to principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities
so transferred.
(c) Private Placement Legend. Upon the registration of the
transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the registration of the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless
(i) the circumstance contemplated by paragraph (a)(i)(x) of this Section 2.17
exists or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Issuers 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
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain for at least two years copies of all
letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Issuers 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 Registrar.
SECTION 2.18. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer
and subject to Section 2.12, the Issuers, the Trustee, any Paying Agent, any
Registrar and any co-registrar shall treat the Person in whose name any
Security shall be registered upon the register of Securities kept by the
Registrar as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of the ownership
or other writing thereon made by anyone other than the Issuers, any Registrar
or any co-
40
registrar) for the purpose of receiving payments of principal of or
interest on such Security and for all other purposes; and none of the
Issuers, the Trustee, any Paying Agent, any Registrar or any co-registrar
shall be affected by any notice to the contrary.
SECTION 2.19. ALLOCATION OF PURCHASE PRICE.
Based on their estimate of the relative fair market values of the
Securities and the Appreciation Notes, the Issuers agree that of the initial
purchase price of $922.0 for each $1,000 of principal amount of Securities,
the Issuers agree that they shall treat for U.S. federal income tax purposes
$899.63 of such initial purchase price as allocable to the Securities and
$22.37 as allocable to the Appreciation Notes.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
(a) If the Issuers elect to redeem Securities pursuant to the
optional redemption provisions of Section 3.07 hereof, they shall furnish to
the Trustee, at least 45 days (unless a shorter period is acceptable to the
Trustee) but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the Section of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Securities to be redeemed and (iv) the redemption price.
(b) If the Issuers are required to make an offer to purchase
Securities pursuant to the provisions of Sections 3.09 or 4.14 hereof, they
shall furnish to the Trustee at least 30 days but not more than 60 days
before a purchase date an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the offer to purchase shall
occur, (ii) the proposed purchase date, (iii) the maximum principal amount
of Securities to be purchased , (iv) the purchase price and (v) further
setting forth a statement to the effect that (a) an Issuer or one of its
Subsidiaries has effected an Asset Disposition and the conditions set forth
in Section 4.10 have been satisfied or (b) a Change of Control has occurred
and the conditions set forth in Section 4.14 have been satisfied, as
applicable.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
41
(a) If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed among the Securityholders
on a pro rata basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate (and in such manner as complies with
applicable legal and stock exchange requirements, if any); provided, however,
that if a partial redemption is made with the proceeds of a Public Equity
Offering, selection of the Securities or portion thereof for redemption shall
be made by the Trustee only on a pro rata basis to the extent practicable,
unless such method is otherwise prohibited. In the event of partial
redemption by lot, the particular Securities to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding
Securities not previously called for redemption.
(b) The Trustee shall promptly notify the Issuers in writing of
the Securities selected for redemption and, in the case of any Security
selected for partial redemption, the principal amount thereof to be
redeemed. Securities may be redeemed in part in multiples of $1,000
principal amount only. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
(a) At least 30 days before a redemption date, the Issuers shall
mail a notice of redemption by first class mail, postage prepaid to each
Holder whose Securities are to be redeemed at the last address for such
Holder then shown on the registry books.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and that,
after the redemption date upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion shall be issued;
(iv) the name and address of the Paying Agent;
42
(v) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(vi) that, unless the Issuers default in making such redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the redemption date;
(vii) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are
being redeemed; and
(viii) if fewer than all the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption.
(b) At the Issuers' request, the Trustee shall give the notice
of redemption in the Issuers' names and at the Issuers' expense; provided,
however, that the Issuers shall have delivered to the Trustee at least 45
days (unless a shorter period is acceptable to the Trustee) prior to the
proposed redemption date an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest,
if any.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
(a) Prior to 11:00 a.m., New York City time, on the redemption
date, the Issuers shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Issuers any money deposited with the Trustee or
the Paying Agent by the Issuers in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Securities to be redeemed.
43
(b) On and after the redemption date, interest ceases to accrue
on the Securities or the portions of Securities called for redemption. If
a Security is redeemed on or after an Interest Record Date but on or prior
to the related Interest Payment Date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Security was registered at
the close of business on such record date. If any Security called for
redemption shall not be so paid upon surrender for redemption because of
the failure of the Issuers to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such
principal is paid and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities
and in Section 4.01 hereof.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Issuers shall issue and the Trustee shall authenticate for the
Securityholder at the expense of the Issuers a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as provided in Section 3.07(b), the Securities will not
be redeemable at the option of the Issuers prior to December 15, 2002. On
and after such date, the Securities will be redeemable, at the Issuers'
option, in whole or in part, at the following redemption prices (expressed in
percentages of principal amount), if redeemed during the 12-month period
commencing on December 15th of the years set forth below, plus accrued and
unpaid interest to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date):
Redemption
Period Price
------ ----------
2002........................ 106.00%
2003........................ 104.00%
2004........................ 102.00%
2005 and thereafter......... 100.000%
(b) In the event of the sale by either Issuer prior to December
15, 2000 of its Capital Stock (other than Disqualified Stock) in one or more
Public Equity Offerings the Net Cash Proceeds of which are at least $25.0
million in the aggregate, the Issuers may, at their option, use the Net Cash
Proceeds of such sale or sales of Capital Stock to redeem up to 25% of the
aggregate principal amount of the Securities at a redemption price in the
44
case of a redemption date prior to December 15, 1999, equal to 112.0% of the
Accreted Value thereof plus accrued and unpaid interest thereon, if any, to
the redemption date (subject to the right of holders of record on the
relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date) and for any redemption date on or after December 15,
1999, at a redemption price equal to 112.0% of the principal amount thereof
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the right of holders of record on the relevant Interest Record
Date to receive interest due on the relevant Interest Payment Date);
provided, however, that after any such redemption the aggregate principal
amount of the Securities outstanding must equal at least $79.0 million. In
order to effect the foregoing redemption with the proceeds of any such sale
of Capital Stock, the Issuers shall make such redemption not more than 90
days after the consummation of any such sale or sales of Capital Stock.
SECTION 3.08. MANDATORY REDEMPTION.
The Issuers are not required to make mandatory redemption or
sinking fund payments with respect to the Securities.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(a) In the event that, pursuant to Section 4.10 hereof, the
Issuers shall commence an offer to all Securityholders to purchase Securities
(an "Asset Disposition Offer"), they shall follow the procedures specified
below:
(i) The Asset Disposition Offer shall remain open for a period
of 30 Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable law (the
"Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the Issuers
shall purchase the principal amount of Securities required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Securities tendered
in response to the Asset Disposition Offer.
(ii) If the Purchase Date is on or after a Interest Record Date
and on or before the related Interest Payment Date, any accrued
interest shall be paid to the Person under whose name a Security is
registered at the close of business on such Interest Record Date, and
no additional interest shall be payable to Holders who tender
Securities pursuant to the Asset Disposition Offer.
45
(iii) Upon the commencement of any Asset Disposition Offer,
the Issuers shall send, by first class mail, a notice to each
Securityholder, with a copy to the Trustee. The notice shall contain
all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Asset Disposition Offer. The
notice, which shall govern the terms of the Asset Disposition Offer,
shall state:
(1) that the Asset Disposition Offer is being made pursuant
to this Section 3.09 and Section 4.10 hereof and the length of
time the Asset Disposition Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Security not tendered or accepted for payment
shall continue to accrue interest;
(4) that any Security accepted for payment pursuant to the
Asset Disposition Offer shall cease to accrue interest after the
Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to any Asset Disposition Offer shall be required to
surrender the Security, with the form entitled "Option of
Securityholder to Elect Purchase" on the reverse of the Security
completed, to the Issuers, a depositary, if appointed by the
Issuers, or a Paying Agent at the address specified in the notice
at least three days before the Purchase Date;
(6) that Holders shall be entitled to withdraw their
election if the Issuers, depositary or Paying Agent, as the case
may be, receives, not later than the expiration of the Offer
Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have the Security
purchased;
(7) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Issuers
shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the
Issuers so that only Securities in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
46
(8) that Holders whose Securities were purchased only in
part shall be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered.
(iv) On or before the Purchase Date, the Issuers shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Securities or portions thereof tendered
pursuant to the Asset Disposition Offer or, if less than the Offer
Amount has been tendered, all Securities or portions thereof tendered,
and deliver to the Trustee an Officers' Certificate stating that such
Securities or portions thereof were accepted for payment by the
Issuers in accordance with the terms of this Section 3.09. The
Issuers, depositary or Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Security tendered by such Holder and accepted by
the Issuers for purchase, and the Issuers shall promptly issue a new
Security, and the Trustee shall authenticate and mail or deliver such
new Security to such Holder equal in principal amount to any
unpurchased portion of the Security surrendered. Any Security not so
accepted shall be promptly mailed or delivered by the Issuers to the
Holder thereof. The Issuers shall publicly announce the results of
the Asset Disposition Offer on the Purchase Date.
(b) Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
(a) The Issuers shall pay the principal of, premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than
an Issuer or a Subsidiary Guarantor, holds as of 11:00 a.m. New York City
time on the due date money deposited by the Issuers in immediately available
funds and designated for and sufficient to pay all principal, premium, if
any, and interest then due. Such Paying Agent shall return to the Issuers,
no later than five days following the date of
47
payment, any money (including accrued interest paid by the Issuers) that
exceeds such amount of principal, premium, if any, and interest paid on the
Securities.
(b) The Issuers shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal
at the rate equal to 2% per annum in excess of the then applicable interest
rate on the Securities to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuers shall maintain in the Borough of Manhattan, in the
City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuers in respect of the Securities and this
Indenture may be served. The Issuers shall give prior written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
(b) The Issuers may also 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 designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuers of their obligation to
maintain an office or agency in the Borough of Manhattan, in the City of
New York for such purposes. The Issuers shall give prior written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
(c) The Issuers hereby designate the Corporate Trust Office of
the Trustee as one such office or agency of the Issuers in accordance with
Section 2.03.
SECTION 4.03. SEC REPORTS.
(a) Upon consummation of the Exchange Offer and the issuance of
the Exchange Securities, each Issuer and each Subsidiary Guarantor (at its
own expense) shall file with
48
the Commission and shall furnish to the Trustee and each Securityholder
within 15 days after it files them with the Commission copies of the
quarterly and annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) to be filed pursuant to Section 13 or
15(d) of the Exchange Act (without regard to whether either of the Issuers is
subject to the requirements of such Section 13 or 15(d) of the Exchange Act).
Notwithstanding the foregoing, in the event that the Issuers are not required
to file such reports with the Commission pursuant to the Exchange Act, the
Issuers will nevertheless deliver such Exchange Act information to the
Holders of the Securities within 15 days after it would have been required to
file it with the Commission. Upon qualification of this Indenture under the
TIA, the Issuers and each of the Subsidiary Guarantors shall also comply with
the provisions of TIA Section 314(a).
(b) At the Issuers' expense, each Issuer and each of the
Subsidiary Guarantors, as applicable, shall cause an annual report if
furnished by it to stockholders generally and each quarterly or other
financial report if furnished by it to stockholders generally to be filed
with the Trustee and mailed to the Securityholders at their addresses
appearing in the register of Securities maintained by the Registrar at the
time of such mailing or furnishing to stockholders.
(c) Each Issuer and each of the Subsidiary Guarantors shall
provide to any Securityholder any information reasonably requested by such
Securityholder concerning the Issuers and the Subsidiary Guarantors
(including financial statements) necessary in order to permit such
Securityholder to sell or transfer Securities in compliance with Rule 144A
under the Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATES.
(a) Each of the Issuers and each Subsidiary Guarantor shall
deliver to the Trustee, within 90 days after the end of each fiscal year, an
Officers' Certificate signed by its principal executive officer, principal
financial officer or principal accounting officer stating that a review of
the activities of such Issuer and its Subsidiaries or such Subsidiary
Guarantor and its Subsidiaries, as the case may be, during the preceding
fiscal year has been made under the supervision of the signing Officers with
a view to determining whether each has kept, observed, performed and
fulfilled its Obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge each has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default
49
shall have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto).
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of (x) the Issuers' independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements nothing has come to their attention which would lead them to
believe that either Issuer has violated any provisions of Article 4, 5 or 6
of this Indenture insofar as they relate to accounting matters or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of
any such violation and (y) if any Restricted Subsidiary's or Subsidiary
Guarantor's financial statements are not prepared on a consolidated basis
with the applicable Issuer's, such Restricted Subsidiary's or Subsidiary
Guarantor's independent public accountants (who shall be a firm of
established national reputation) that in making the examination necessary
for certification of such financial statements nothing has come to their
attention which would lead them to believe that any of the Restricted
Subsidiaries or Subsidiary Guarantors is in Default under this Indenture
or, if any such Default has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) Each Issuer and each of the Subsidiary Guarantors shall, so
long as any of the Securities are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of (i) any Default or Event of
Default or (ii) any event of default under any other mortgage, indenture or
instrument to which either Issuer or a Restricted Subsidiary is a party, an
Officers' Certificate specifying such Default, Event of Default or event of
default and what action such Issuer or such Subsidiary Guarantor, as the
case may be, is taking or proposes to take with respect thereto.
(d) Each Issuer and each of the Subsidiary Guarantors shall also
comply with TIA Section 314(a)(4).
50
SECTION 4.05. TAXES.
Each Issuer and each of the Subsidiary Guarantors shall pay, and
shall cause each of their respective Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
as contested in good faith and by appropriate proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
Each of the Issuers and the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture (including, but not limited to, the payment of the principal of or
interest on the Securities); and each Issuer and each Subsidiary Guarantor
(to the extent that they may lawfully do so) hereby expressly waive all
benefit or advantage of any such law, and covenant that they shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries, directly or indirectly, to (i) declare or pay any
dividend or make any distribution on or in respect of its Capital Stock
(including any payment in connection with any merger or consolidation
involving an Issuer or any of its Restricted Subsidiaries) except (A)
dividends or distributions payable in its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase such
Capital Stock and (B) dividends or distributions payable to an Issuer or a
Restricted Subsidiary of an Issuer which holds any equity interest in the
paying Restricted Subsidiary (and if the Restricted Subsidiary paying the
dividend or making the distribution is not a Wholly-Owned Subsidiary, to its
other holders of Capital Stock on a pro rata basis), (ii) purchase, redeem,
retire or otherwise acquire for value any Capital Stock of an Issuer held by
Persons other than a Wholly-Owned Subsidiary of an Issuer or any Capital
Stock of a Restricted Subsidiary of an Issuer held by any Affiliate of such
Issuer, other than a Wholly-Owned Subsidiary (in either case, other than in
exchange for its Capital Stock (other than Disqualified Stock)), (iii)
purchase, repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
51
anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition), (iv) make any Investment (other than a Permitted
Investment) in any Person, (v) make any payment under any Performance
Compensation Agreement or (vi) make any payment to Alan R. Brill (including
under a Performance Compensation Agreement or in his capacity as an employee
of the Issuer or any Subsidiary) except for reimbursement for advances or
other out-of-pocket costs and expenses incurred in the ordinary course of
business (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement, Investment or payment as described
in preceding clauses (i) through (vi) being referred to as a "Restricted
Payment"); if at the time the Issuer or such Restricted Subsidiary makes such
Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom); or
(2) the Issuers are not able to incur an additional $1.00 of
Indebtedness pursuant to paragraph (a) (ii) of Section 4.09; or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments declared or made subsequent to the Issue
Date would exceed the sum of (A) 50% of (x) the Consolidated Net
Income accrued during the period (treated as one accounting period)
from the first day of the fiscal quarter beginning on or after the
Issue Date to the end of the most recent fiscal quarter ending prior
to the date of such Restricted Payment as to which financial results
are available (but in no event ending more than 135 days prior to the
date of such Restricted Payment) (or, in case such Consolidated Net
Income shall be a deficit, minus 100% of such deficit) less (y) the
aggregate amount of Restricted Payments made pursuant to clause (v) of
paragraph (b); (B) the aggregate Net Cash Proceeds received by the
Issuer from the issue or sale of its Capital Stock (other than
Disqualified Stock) or other capital contributions subsequent to the
Issue Date (other than net proceeds received from an issuance or sale
of such Capital Stock to (x) a Subsidiary of an Issuer, (y) an
employee stock ownership plan or similar trust or (z) management
employees of an Issuer or any Subsidiary of an Issuer (other than
sales of Capital Stock (other than Disqualified Stock) to management
employees of an Issuer pursuant to bona fide employee stock option
plans of such Issuer); provided, however, that the value of any
non-cash net proceeds shall be as determined by the Board of Directors
of such Issuer in good faith, except that in the event the value of
any non-cash net proceeds shall be $1.0 million or more, the value
shall be as determined in writing by an independent investment banking
firm of nationally recognized standing; (C) the amount by which
Indebtedness of an Issuer is reduced
52
on such Issuer's balance sheet upon the conversion or exchange (other
than by a Restricted Subsidiary of such Issuer) subsequent to the Issue
Date of any Indebtedness of such Issuer convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of such Issuer (less the
amount of any cash, or other property, distributed by such Issuer upon
such conversion or exchange); and (D) the amount equal to the net
reduction in Investments (other than Permitted Investments) made after
the Issue Date by an Issuer or any of its Restricted Subsidiaries in any
Person resulting from (i) repurchases or redemptions of such Investments
by such Person, proceeds realized upon the sale of such Investment to an
unaffiliated purchaser, repayments of loans or advances or other
transfers of assets by such Person to the Issuer or any Restricted
Subsidiary of an Issuer or (ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided
in the definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously included
in the calculation of the amount of Restricted Payments; provided,
however, that no amount shall be included under this clause (D) to the
extent it is already included in Consolidated Net Income.
(b) The provisions of paragraph (a) shall not prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations (including, without limitation, the
Appreciation Notes) of the Issuers made by exchange for, or out
of the proceeds of the substantially concurrent sale of, Capital
Stock of the Issuers (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary, an employee
stock ownership plan or similar trust or management employees of
the Issuers or any Subsidiary of the Issuers); provided, however,
that (A) such purchase or redemption shall be excluded in the
calculation of the aggregate amount of Restricted Payments for
purposes of clause (3) of paragraph (a) and (B) the Net Cash
Proceeds from such sale shall be excluded in the calculation of
the amount of aggregate Net Cash Proceeds from clause (3) (B) of
paragraph (a);
(ii) any purchase or redemption of Subordinated Obligations
of the Issuers made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Subordinated Obligations of
the Issuers in compliance with the Section 4.09; provided,
however, that such purchase or redemption shall be excluded in
the calculation of the aggregate amount of Restricted Payments
for purposes of clause (3) of paragraph (a);
53
(iii) any purchase or redemption of Subordinated
Obligations from Net Available Cash to the extent permitted under
Section 4.10 below; provided, however, that such purchase or
redemption shall be excluded in the calculation of the aggregate
amount of Restricted Payments for purposes of clause (3) of
paragraph (a);
(iv) dividends paid within 60 days after the date of
declaration if at such date of declaration such dividend would
have complied with this provision; provided, however, that such
dividend shall be included in the calculation of the amount of
Restricted Payments for purposes of clause (3) of paragraph (a);
(v) for so long as BMC is not treated for tax purposes as a
corporation or an association taxable as a corporation or other
entity that is subject to an entity level tax for income tax
purposes, distributions to each Member, as soon as practicable
after the end of each calendar quarter, of an amount reasonably
determined to be necessary to permit such Member to pay any
federal, state or local income taxes imposed on such Member's
allocable share of income from BMC; provided, however, that in no
event shall any distribution to a Member exceed the Tax Allowance
Amount for such Member in respect of such quarter and BMC shall
cause the Accountants to deliver to the Trustee a certificate
setting forth the determination of each Member's Tax Allowance
Amount within 60 days of the end of each fiscal year;
(vi) payments under the Performance Compensation Agreements
(other than any Performance Compensation Agreement with Alan R.
Brill) not exceeding in the aggregate $500,000 in any fiscal year
provided, however, that any such payment pursuant to this clause
(vi) shall be included in the calculation of the aggregate amount
of Restricted Payments for purposes of clause 3 of paragraph (a)
and;
(vii) payments in respect of the redemption of the
Appreciation Notes under the Appreciation Note Indenture,
provided, however, that the Issuers are able to incur an
additional $1.00 of Subordinated Indebtedness pursuant to clause
(i) of paragraph (a) under Section 4.09, and provided, further,
that such payments shall be included in the calculation of the
aggregate amount of Restricted Payments for purposes of clause
(3) of paragraph (a);
54
and provided, further, that in the case of clauses (i), (ii), (iii) and (vii)
and clause (vi) with respect to Performance Compensation Agreements entered
into after the Issue Date, no Default or Event of Default shall have occurred
or be continuing at the time of such payment or as a result thereof.
(c) For purposes of determining compliance with this Section 4.07,
Restricted Payments may be made with cash or non-cash assets, provided,
however, that any Restricted Payment made other than in cash shall be valued
at the fair market value (determined, subject to the additional requirements
of the immediately succeeding proviso, in good faith by the Board of
Directors) of the assets so utilized in making such Restricted Payment,
provided, further, that (i) in the case of any Restricted Payment made with
Capital Stock or Indebtedness, such Restricted Payment shall be deemed to be
made in an amount equal to the greater of the fair market value thereof and
the liquidation preference (if any) or principal amount of the Capital Stock
or Indebtedness, as the case may be, so utilized, and (ii) in the case of any
Restricted Payment in an aggregate amount in excess of $1.0 million, a
written opinion as to the fairness of the valuation thereof (as determined by
the Issuers) for purposes of determining compliance with this Section 4.07
shall be issued by an independent investment banking firm of national
standing.
(d) Not later than the date of making any Restricted Payment or
Permitted Investment described in clause (xii) of the definition thereof, the
applicable Issuer shall deliver to the Trustee an Officer's Certificate
stating that such Restricted Payment or Permitted Investment, as the case may
be, complies with this Indenture and setting forth in reasonable detail the
basis upon which the required calculations were computed, which calculations
may be based upon the Issuers' latest available quarterly consolidated
financial statements and a copy of any required investment banker's opinion.
SECTION 4.08. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any such Restricted Subsidiary
to:
(i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligation owed to an Issuer or
another Restricted Subsidiary;
(ii) make any loans or advances to an Issuer or another
Restricted Subsidiary or
55
(iii) transfer any of its property or assets to an Issuer or
another Restricted Subsidiary, except:
(a) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(b) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary on or prior to the date on
which such Restricted Subsidiary was acquired by an Issuer and
outstanding on such date (other than Indebtedness Incurred in
anticipation of, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary of an Issuer or was acquired by an
Issuer);
(c) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement evidencing Indebtedness Incurred
without violation of this Indenture or effecting a refinancing of
Indebtedness issued pursuant to an agreement referred to in clauses
(a) or (b) or this clause (c) or contained in any amendment to an
agreement referred to in clauses (a) or (b) or this clause (c);
provided, however, that the encumbrances and restrictions with respect
to such Restricted Subsidiary contained in any of such agreement,
refinancing agreement or amendment, taken as a whole, are no less
favorable to the holders of the Securities in any material respect, as
determined in good faith by the Board of Directors of the Issuers,
than encumbrances and restrictions with respect to such Restricted
Subsidiary contained in agreements in effect at, or entered into on,
the Issue Date;
(d) in the case of clause (iii) of this Section 4.08, any
encumbrance or restriction (A) that restricts in a customary manner
the subletting, assignment or transfer of any property or asset that
is a lease, license, conveyance or contract or similar property or
asset, (B) by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets of an
Issuer or any Restricted Subsidiary not otherwise prohibited by this
Indenture, (C) that is included in a licensing agreement to the extent
such restrictions limit the transfer of the property subject to such
licensing agreement or (D) arising or agreed to in the ordinary course
of business and that does not, individually or in the aggregate,
56
detract from the value of property or assets of an Issuer or any of
its Restricted Subsidiaries in any manner material to an Issuer or any
such Restricted Subsidiary;
(e) in the case of clause (iii) of this Section 4.08,
restrictions contained in security agreements, mortgages or similar
documents securing Indebtedness of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property subject
to such security agreements;
(f) in the case of clause (iii) of this Section 4.08, any
instrument governing or evidencing Indebtedness of a Person acquired
by an Issuer or any Restricted Subsidiary of an Issuer at the time of
such acquisition, which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than
the Person so acquired; provided, however, that such Indebtedness is
not incurred in connection with or in contemplation of such
acquisition;
(g) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition; and
(h) encumbrances or restrictions arising or existing by reason
of applicable law.
SECTION 4.09. LIMITATION ON INDEBTEDNESS.
(a) The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, Incur any Indebtedness; provided, however, that:
(i) the Issuers and their Restricted Subsidiaries may Incur Indebtedness
which is expressly subordinated to the Securities and the Subsidiary
Guarantees if no Default or Event of Default shall have occurred and be
continuing at the time of such Incurrence or would occur as a consequence of
such Incurrence and the Consolidated Leverage Ratio would not be greater than
7.00 to 1.00 and (ii) the Issuers and their Restricted Subsidiaries may Incur
unsecured Indebtedness ranking on a parity with the Securities if no Default
or Event of Default shall have occurred and be continuing at the time of such
Incurrence or would occur as a consequence of such Incurrence and the
Consolidated Senior Leverage Ratio would not be greater than 6.50 to 1.00,
provided, however, that as provided in the definition of Permitted Liens
Indebtedness Incurred pursuant to this clause (ii) may be secured by a Lien
if at the time of such
57
Incurrence the Consolidated Senior Secured Leverage Ratio would not be
greater than 3.00 to 1.00.
(b) Notwithstanding the foregoing paragraph (a), the Issuers and
their Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred which does not exceed $15.0 million at
any time outstanding, less the aggregate principal amount thereof
permanently repaid with the net proceeds of Asset Dispositions;
(ii) Indebtedness of an Issuer owing to and held by any
Wholly-Owned Subsidiary or Indebtedness of a Restricted Subsidiary
owing to and held by an Issuer or any Wholly-Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such
Wholly-Owned Subsidiary ceasing to be a Wholly-Owned Subsidiary or any
subsequent transfer of any such Indebtedness (except to an Issuer or
any Wholly-Owned Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by an issuer thereof;
(iii) Indebtedness represented by (A) the Securities and the
Subsidiary Guarantees, (B) the Appreciation Notes and the Guarantees
thereof, (C) Existing Indebtedness and (D) any Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iii) (other than clause B) or Incurred pursuant to paragraph
(a) above;
(iv) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on the date on which such Restricted Subsidiary was
acquired, directly or indirectly, by an Issuer (other than
Indebtedness Incurred in anticipation of, or to provide all or any
portion of the funds or credit support utilized to consummate the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary or was otherwise acquired by
an Issuer); provided, however, that at the time such Restricted
Subsidiary is acquired by an Issuer, such Issuer would have been able
to Incur $1.00 of additional Indebtedness pursuant to clause (ii) of
paragraph (a) above after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (iv) and (B) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (iv);
(v) Indebtedness (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Issuers or any
of their
58
Restricted Subsidiaries to their customers in the ordinary course of
their business, (B) in respect of performance bonds or similar
obligations of the Issuers or any of their Restricted Subsidiaries for
or in connection with pledges, deposits or payments made or given in the
ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations, including obligations under health,
safety or environmental obligations and (C) arising from Guarantees to
suppliers, lessors, licensees, contractors, franchises or customers of
obligations (other than Indebtedness) incurred in the ordinary course of
business;
(vi) Indebtedness under Currency Agreements and Interest Rate
Agreements; provided, however, that such Currency Agreements and
Interest Rate Agreements are entered into for bona fide hedging
purposes of an Issuer or its Restricted Subsidiaries (as determined in
good faith by the Board of Directors of BMC) and correspond in terms
of notional amount, duration, currencies and interest rates as
applicable, to Indebtedness of such Issuer or its Restricted
Subsidiaries Incurred without violation of this Indenture or to
business transactions of the Issuers or their Restricted Subsidiaries
on customary terms entered into in the ordinary course of business;
(vii) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations,
or from Guarantees or letters of credit, surety bonds or performance
bonds securing any obligations of the Issuers or any of their
Restricted Subsidiaries pursuant to such agreements, in each case
Incurred in connection with the disposition of any business assets or
Restricted Subsidiary of the Issuers or (other than Guarantees of
Indebtedness or other obligations incurred by any Person acquiring all
or any portion of such business assets or Restricted Subsidiary of the
Issuers for the purpose of financing such acquisition) in a principal
amount not to exceed the gross proceeds actually received by the
Issuers or any of their Restricted Subsidiaries in connection with
such disposition; provided, however, that the principal amount of any
Indebtedness Incurred pursuant to this clause (vii) when taken
together with all Indebtedness Incurred pursuant to this clause (vii)
and then outstanding, shall not exceed $1.0 million;
(viii) Indebtedness consisting of (A) Guarantees by an Issuer
(so long as such Issuer could have Incurred such Indebtedness directly
without violation of this Indenture) and (B) Guarantees by a
Restricted Subsidiary of Indebtedness Incurred by an Issuer without
violation of this Indenture (so long as such Restricted Subsidiary
could have Incurred such Indebtedness directly without violation of
this Indenture);
59
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument issued
by an Issuer or any of its Subsidiaries drawn against insufficient
funds in the ordinary course of business in an amount not to exceed
$250,000 at any time, provided, however, that such Indebtedness is
extinguished within two business days of its incurrence; and
(x) Indebtedness (other than Indebtedness described in clauses
(i) - (ix)) in a principal amount which, when taken together with the
principal amount of all other Indebtedness Incurred pursuant to this
clause (x) and then outstanding, will not exceed $5.0 million (it
being understood that any Indebtedness Incurred under this clause (x)
shall cease to be deemed Incurred or outstanding for purposes of this
clause (x) (but shall be deemed to be Incurred for purposes of
paragraph (a)) from and after the first date on which an Issuer or its
Restricted Subsidiaries could have Incurred such Indebtedness under
the foregoing paragraph (a) without reliance upon this clause (x)).
(c) Notwithstanding the foregoing, neither the Issuers nor any
Restricted Subsidiary shall Incur any Indebtedness under paragraph (b) of
this Section 4.09 if the proceeds thereof are used, directly or indirectly,
to refinance any Subordinated Obligations of an Issuer or a Restricted
Subsidiary unless such Indebtedness shall be subordinated to the Securities
to at least the same extent as such Subordinated Obligations.
(d) Notwithstanding the foregoing, no Restricted Subsidiary shall
incur any Indebtedness under clause (i) of paragraph (a) of this Section 4.09
if such Indebtedness is sold pursuant to Rule 144A of the Securities Act or a
public offering registered under the Securities Act.
(e) The Issuers will not permit any Unrestricted Subsidiary to
Incur any Indebtedness other than Non-Recourse Debt.
(f) For purposes of determining any particular amount of
Indebtedness under this Section 4.09, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in
the determination of such particular amount shall not be included. For
purposes of determining compliance with this Section 4.09, in the event that
an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the above clauses, the Issuers, in their sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses.
SECTION 4.10. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.
60
(a) The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, make any Asset Disposition unless:
(i) an Issuer or such Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least equal to
the fair market value, as determined in good faith by BMC's Board of
Directors (including as to the value of all noncash consideration), of
the shares and assets subject to such Asset Disposition;
(ii) at least 80% of the consideration thereof received by the
Issuers or such Restricted Subsidiary is in the form of cash or Cash
Equivalents other than in the case where an Issuer or a Restricted
Subsidiary is exchanging all or substantially all of the assets of one
or more broadcast stations operated by an Issuer or such Restricted
Subsidiary, as the case may be, (including by way of the transfer of
Capital Stock), for all or substantially all of the assets (including
by way of the transfer of Capital Stock) constituting one or more
broadcast stations operated by another Person (an "Asset Swap"),
provided, however, that at least 80% of the consideration, if any,
received by the Issuers and their Restricted Subsidiaries in such
Asset Swap, other than the stock and assets of broadcast station(s),
is in the form of cash or Cash Equivalents; and
(iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Issuers (or such Restricted
Subsidiary, as the case may be) (A) first, to the extent an Issuer or
any Restricted Subsidiary elects (or is required by the terms of any
Senior Secured Indebtedness), (x) to prepay, repay or purchase Senior
Secured Indebtedness in each case owing to a Person other than the
Issuers or any of their Subsidiaries or (y) to the investment in or
acquisition of Additional Assets within 365 days from the later of the
date of such Asset Disposition or the receipt of such Net Available
Cash; (B) second, within 365 days from the receipt of such Net
Available Cash, to the extent of the balance of such Net Available
Cash after application in accordance with clause (A), to make an offer
to purchase Securities, at 100% of Accreted Value thereof if such
purchase date occurs prior to December 15, 1999, and at 100% of the
principal amount thereof if such purchase date occurs on or after
December 15, 1999, in each case plus accrued and unpaid interest, if
any, thereon; (C) third, within 90 days after the later of the
application of Net Available Cash in accordance with clauses (A) and
(B) and the date that is 365 days from the receipt of such Net
Available Cash, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B), to
prepay, repay or repurchase Indebtedness (other than Preferred Stock)
of a Wholly-Owned Subsidiary (in each case other than
61
Indebtedness owed to an Issuer or a Subsidiary); and (D) fourth, to the
extent of the balance of such Net Available Cash after application in
accordance with clauses (A), (B) and (C), to (w) the investment in or
acquisition of Additional Assets, (x) the making of Temporary Cash
Investments, (y) the prepayment, repayment or purchase of Indebtedness
of an Issuer (other than Indebtedness owing to any Subsidiary of an
Issuer) or Indebtedness of any Subsidiary (other than Indebtedness owed
to an Issuer or any of its Subsidiaries) or (z) any other purpose
otherwise permitted under this Indenture, in each case within the later
of 45 days after the application of Net Available Cash in accordance
with clauses (A), (B) and (C) or the date that is 365 days from the
receipt of such Net Available Cash; provided, however, that, in
connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A), (B), (C) or (D) above, the applicable Issuer or
such Restricted Subsidiary shall retire such Indebtedness and shall
cause the related loan commitment (if any) to be permanently reduced in
an amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions, the Issuers and their
Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance herewith except to the extent that the aggregate Net
Available Cash from all Asset Dispositions which are not applied in
accordance with this covenant at any time exceeds $10.0 million. The
Issuers shall not be required to make an offer for Securities pursuant
to this covenant if the Net Available Cash available therefor (after
application of the proceeds as provided in clause (A)) is less than
$10.0 million for any particular Asset Disposition (which lesser amounts
shall be carried forward for purposes of determining whether an offer is
required with respect to the Net Available Cash from any subsequent
Asset Disposition). Notwithstanding the foregoing, the Issuers will not
be required to comply with the terms of this Section 4.10 to the extent
such Asset Disposition consists of a sale of the Missouri Properties;
provided, however, that if the Net Available Cash from such Asset
Disposition exceeds $7.5 million, the Issuers will be required to apply
the amount of such excess in accordance with the provision of this
Section 4.10.
For the purposes of this Section 4.10, the following will be deemed to
be cash: (x) the assumption by the transferee of Senior Secured Indebtedness
of an Issuer, or Senior Secured Indebtedness of any Restricted Subsidiary of
an Issuer and the release of such Issuer or such Restricted Subsidiary from
all liability on such senior indebtedness in connection with such Asset
Disposition (in which case the Issuers shall, without further action, be
deemed to have applied such assumed Indebtedness in accordance with clause
(A) of the preceding paragraph) and (y) securities received by an Issuer or
any Restricted Subsidiary of an Issuer from the transferee that are promptly
(and in any event within 60 days) converted by such Issuer or such Restricted
Subsidiary into cash.
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(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to clause (a)(iii)(B), the Issuers will be
required to purchase Securities tendered pursuant to an offer by the Issuers
for the Securities at a purchase price of 101% of the Accreted Value thereof
or 101% of the principal amount thereof, as applicable, under clause
(a)(iii)(B), and in each case plus accrued and unpaid interest, if any, to
the purchase date in accordance with the procedures (including prorating in
the event of oversubscription) set forth in this Indenture. If the aggregate
purchase price of the Securities tendered pursuant to the offer is less than
the Net Available Cash allotted to the purchase of the Securities, the
Issuers will apply the remaining Net Available Cash in accordance with
clauses (a) (iii) (C) or (D) above.
(c) The Issuers will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant
to this Indenture. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section 4.10, the Issuers
will comply with the applicable securities laws and regulations and will not
be deemed to have breached its obligations under this Indenture by virtue
thereof.
SECTION 4.11. LIMITATION ON AFFILIATE TRANSACTIONS.
(a) The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, directly or indirectly, enter into or conduct any
transaction or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with or
for the benefit of any Affiliate of an Issuer, other than a Wholly-Owned
Subsidiary (an "Affiliate Transaction") unless: (i) the terms of such
Affiliate Transaction are no less favorable to such Issuer or such Restricted
Subsidiary, as the case may be, than those that could be obtained at the time
of such transaction in arm's length dealings with a Person who is not such an
Affiliate; (ii) in the event such Affiliate Transaction involves an aggregate
amount in excess of $200,000, the terms of such transaction have been
approved by a majority of the members of the Board of Directors of such
Issuer and by a majority of the disinterested members of such Board, if any
(and such majority or majorities, as the case may be, determines that such
Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the
event such Affiliate Transaction involves an aggregate amount in excess of
$1.0 million, the Issuers have received a written opinion from an independent
investment banking firm of nationally recognized standing that such Affiliate
Transaction is fair to such Issuer or such Restricted Subsidiary, as the case
may be, from a financial point of view.
63
(b) The foregoing paragraph (a) shall not apply to (i) any
Restricted Payment permitted to be made pursuant to Section 4.07, (ii) any
issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment
arrangements, or any stock options and stock ownership plans for the benefit
of employees, officers and directors, consultants and advisors approved by
the Board of Directors of the applicable Issuer, (iii) loans or advances to
employees in the ordinary course of business of the Issuers or any of their
Restricted Subsidiaries in aggregate amount outstanding not to exceed
$250,000 to any employee or $1.0 million in the aggregate at any time, (iv)
any transaction between Wholly-Owned Subsidiaries, (v) indemnification
agreements with, and the payment of fees and indemnities to, directors,
officers and employees of each of the Issuers and the Issuers' Restricted
Subsidiaries and indemnification agreements with, or for the benefit of,
officers and employees of BMCLP to the extent related to the performance of
management services for the Issuers or any of their Subsidiaries, in each
case in the ordinary course of business, (vi) transactions pursuant to
agreements in existence on the Issue Date (other than with BMCLP) which are
(x) described in the Offering Memorandum or (y) otherwise, in the aggregate,
immaterial to the Issuers and their Restricted Subsidiaries taken as a whole,
(vii) any employment, noncompetition or confidentiality agreements entered
into by the Issuers or any of their Restricted Subsidiaries with its
employees in the ordinary course of business, (viii) the issuance of Capital
Stock of an Issuer (other than Disqualified Stock), (ix) the acquisition of
Managed Affiliate Notes provided that the aggregate principal amount thereof
(including the Managed Affiliate Notes outstanding on the Issue Date) does
not exceed $20 million at any time outstanding; (x) the Managed Affiliate
Management Agreements, and (xi) provided that no Default or Event of Default
shall have occurred and be continuing, payments to BMCLP for services
rendered to the Issuers and the Restricted Subsidiaries under the
Administrative Management Agreements not to exceed in any fiscal year in the
aggregate the remainder of (A) the lesser of (1) the greater of $2 million or
15% of Media Cashflow for such fiscal year or (2) $5 million over (B) the
payments to BMCLP under management agreements between BMCLP and Managed
Affiliates in such fiscal year provided that the obligations to make such
payments to BMCLP under the Administrative Management Agreements constitute
Subordinated Obligations and the terms of such subordination are no less
favorable to the holders of senior indebtedness (including the Securities)
than the terms set forth in the Administrative Management Agreements between
the Issuers and BMCLP on the Issue Date.
SECTION 4.12. LIMITATION ON LIENS.
The Issuers shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to
exist any Liens except for Permitted Liens.
64
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Article 5 hereof, each Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate, partnership or other existence, and the corporate, partnership
or other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
each Subsidiary and the rights (charter and statutory), licenses and
franchises of the Issuers and their Subsidiaries; provided, however, that
the Issuers shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any
Subsidiary, if the Board of Directors of the applicable Issuer shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers and their Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to
the Securityholders.
SECTION 4.14. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each
Securityholder will have the right to require the Issuers to purchase all or
any part of such Securityholder's Securities, in the case of a repurchase
date prior to December 15, 1999, at a purchase price in cash equal to 101% of
the Accreted Value thereof plus any accrued and unpaid interest, if any, to
the date of repurchase (subject to the right of Securityholders of record on
the relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date) and for any repurchase date on or after December 15,
1999, at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Security holders of record on the relevant Interest
Record Date to receive interest due on the relevant Interest Payment Date)
(such applicable purchase price being hereinafter referred to as the "Change
of Control Purchase Price").
(b) Within 30 days following any Change of Control, unless the
Issuers have mailed a redemption notice with respect to all the outstanding
Securities in connection with such Change of Control, the Issuers shall
mail a notice to each Securityholder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such
Securityholder has the right to require the Issuers to repurchase such
Securityholder's Securities at a purchase price in cash equal to the
Change of Control Purchase Price;
(ii) the repurchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
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(iii) the procedures determined by the Issuers, consistent
with this Indenture, that a Securityholder must follow in order to
have its Securities repurchased.
(c) Securityholders electing to have a Security repurchased will
be required to surrender the Security, with the form entitled "Option of
Securityholder to Elect Purchase" on the reverse of the Security completed,
to the Issuers at the address specified in the notice at least 10 Business
Days prior to the repurchase date. Securityholders will be entitled to
withdraw their election if the Trustee or the Issuers receive not later
than three Business Days prior to the repurchase date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Securityholder, the principal amount of the Security which was delivered
for repurchase by the Securityholder and a statement that such
Securityholder is withdrawing his election to have such Security purchased.
(d) On the repurchase date, all Securities repurchased by the
Issuers under this Section 4.14 shall be delivered by the Trustee for
cancellation, and the Issuers shall pay the repurchase price plus accrued
and unpaid interest, if any, to the Securityholders entitled thereto.
(e) The Issuers shall to the extent applicable comply with any
tender offer rules under the Exchange Act which may then be applicable,
including Rule 14e-1, in connection with any offer required to be made by
the Issuers to repurchase the Securities as a result of a Change of
Control. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relative to the
Issuers' obligation to make an offer to repurchase the Securities as a
result of a Change of Control, the Issuers shall comply with the applicable
securities laws and regulations and will not be deemed to have breached
their obligations under such provisions of this Indenture by virtue
thereof.
SECTION 4.15. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES.
The Issuers shall not permit any of their Restricted Subsidiaries
to issue any Capital Stock to any Person (other than to an Issuer or a
Wholly-Owned Subsidiary of an Issuer) or permit any Person (other than an
Issuer or a Wholly-Owned Subsidiary of an Issuer) to own any Capital Stock
of a Restricted Subsidiary of an Issuer, if in either case as a result
thereof such Restricted Subsidiary would no longer be a Restricted
Subsidiary of an Issuer; provided, however, that this provision shall not
prohibit (x) the Issuers or any of their Restricted Subsidiaries from
selling, leasing or otherwise disposing of 100% of the Capital Stock of any
Restricted Subsidiary in accordance with Section 4.10 and Section
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5.01 hereof or (y) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary in compliance with this Indenture.
SECTION 4.16. LIMITATION ON SALE/LEASEBACK TRANSACTION.
The Issuers shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into, Guarantee or otherwise
become liable with respect to any Sale/Leaseback Transaction with respect
to any property or assets unless (i) the Issuers or such Restricted
Subsidiary, as the case may be, would be entitled, pursuant to this
Indenture, to Incur Indebtedness secured by a Permitted Lien on such
property or assets in an amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction, (ii) the net cash proceeds from
such Sale/Leaseback Transaction are at least equal to the fair market value
of the property or assets subject to such Sale/Leaseback Transaction (such
fair market value determined, in the event such property or assets have a
fair market value in excess of $1.0 million, no more than 30 days prior to
the effective date of such Sale/Leaseback Transaction, by the Board of
Directors of BMC as evidenced by a resolution of such Board) and (iii) the
net cash proceeds of such Sale/Leaseback Transaction are applied in
accordance with the provisions described under Section 4.10.
SECTION 4.17. LIMITATION ON DESIGNATIONS OF UNRESTRICTED SUBSIDIARIES.
(a) The Issuers may designate any Subsidiary of an Issuer (other than
a Subsidiary of an Issuer which owns Capital Stock of a Restricted
Subsidiary) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation; and
(ii) the Issuers would be permitted under this Indenture to make
an Investment in Unrestricted Subsidiaries at the time of Designation
(assuming the effectiveness of such Designation) in an amount (the
"Designation Amount") equal to the sum of (x) fair market value of the
Capital Stock of such Subsidiary owned by the Issuers and the
Restricted Subsidiaries on such date and (y) the aggregate amount of
other Investments of the Issuers and the Restricted Subsidiaries in
such Subsidiary on such date; and
(iii) except in the case of a newly formed or a newly acquired
Subsidiary, the Issuers would be permitted to incur $1.00 of
additional Indebtedness pursuant
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to paragraph (a)(ii) of Section 4.09 at the time of Designation (assuming
the effectiveness of such Designation).
(b) In the event of any such Designation, the Issuers shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to
Section 4.07 for all purposes of this Indenture (including, without
limitation, the definition of Permitted Investment) in the Designation
Amount.
(c) The Issuers shall not, and shall not permit any Restricted
Subsidiary to, at any time (x) provide direct or indirect credit support
for or a guarantee of any Indebtedness of any Unrestricted Subsidiary
(including of any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse
of time or both) declare a default thereon or cause the payment thereof to
be accelerated or payable prior to its final scheduled maturity upon the
occurrence of a default with respect to any Indebtedness of any
Unrestricted Subsidiary (including any right to take enforcement action
against such Unrestricted Subsidiary), except, in the case of clause (x) or
(y), to the extent permitted under Section 4.07.
(d) The Issuers may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall
then constitute a Restricted Subsidiary, if:
(i) no Default shall have occurred and be continuing at the time
of and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred
at such time, have been permitted to be Incurred for all purposes of
this Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions of the Issuers delivered to the Trustee certifying compliance
with the foregoing provisions.
SECTION 4.18. FUTURE NOTE GUARANTORS.
The Issuers shall cause each newly organized or acquired
Restricted Subsidiary to execute and deliver to the Trustee pursuant to
Section 10.07 (a) a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of this Indenture as a
Subsidiary Guarantor and (b) a Subsidiary Guarantee.
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SECTION 4.19. LIMITATION ON BUSINESS
The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, engage substantially in any business other than
a Permitted Business.
SECTION 4.20. FURTHER INSTRUMENTS AND ACTS.
The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the
part of the Issuers, except as otherwise set forth herein, but the Trustee
may require of the Issuers full information and advice as to the
performance of the covenants, conditions and agreements contained herein,
and upon request of the Trustee, the Issuers will execute and deliver such
further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purposes of this Indenture.
ARTICLE 5
SUCCESSORS
SECTION 5.01. LIMITATIONS ON MERGER, CONSOLIDATION OR SALE OF ASSETS.
No Issuer shall consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its assets to, any
Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation, partnership, trust or
limited liability company organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia and the Successor Company (if not an Issuer) shall expressly
assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
such Issuer under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor
Company or any Subsidiary of the Successor Company as a result of such
transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default or
Event of Default shall have occurred and be continuing;
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(iii) immediately after giving effect to such transaction,
the Successor Company (A) shall have a Consolidated Net Worth equal or
greater to the Consolidated Net Worth of the applicable Issuer
immediately prior to such transaction and (B) shall be able to incur
at least an additional $1.00 of Indebtedness pursuant to paragraph
(a)(ii) of Section 4.09; and
(iv) such Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(v) there has been delivered to the Trustee an Opinion of
Counsel to the effect that holders of Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result
of such consolidation, merger, conveyance, transfer or lease and will
be subject to U.S. federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
consolidation, merger, conveyance, transfer or lease had not occurred.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
The Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the applicable Issuer under this
Indenture, but, in the case of a lease of all or substantially all its
assets, the applicable Issuer will not be released from the obligation to
pay the principal of and interest on the Securities.
Notwithstanding clauses (ii) and (iii), of Section 5.01, any
Restricted Subsidiary of an Issuer may consolidate with, merge into or
transfer all or part of its properties and assets to the applicable Issuer.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
(a) An "Event of Default" occurs if:
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(i) there is a default in any payment of interest on any
Security when due, continued for 30 days;
(ii) there is a default in the payment of principal of any
Security when due at its Stated Maturity, upon optional redemption,
upon required repurchase, upon declaration or otherwise;
(iii) there is a failure by an Issuer to comply with its
obligations under Section 5.01, Section 4.14 or Section 4.10;
(iv) there is failure by an Issuer to comply for 30 days after
notice with any of its obligations under Section 4.01, 4.03, 4.04,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 or
4.19 hereof (in each case, other than a failure to purchase Securities
which shall constitute an Event of Default under clause (ii) above);
(v) the failure by an Issuer to comply for 60 days after notice
with its other agreements contained in this Indenture;
(vi) Indebtedness of an Issuer or any Restricted Subsidiary is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $1.0 million
and such default shall not have been cured after a 10-day period;
(vii) any judgment or decree for the payment of money in
excess of $1.0 million (to the extent not covered by insurance) is
rendered against an Issuer or a Significant Subsidiary and such
judgment or decree shall remain undischarged or unstayed for a period
of 60 days after such judgment becomes final and nonappealable (the
"judgment default provision");
(viii) any Subsidiary Guarantee by a Significant Subsidiary
ceases to be in full force and effect (except as contemplated by the
terms of this Indenture) or any Subsidiary Guarantor that is a
Significant Subsidiary denies or disaffirms its obligations under this
Indenture or its Subsidiary Guarantee and such Default continues for
10 days;
(ix) an Issuer or any of its Significant Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors,
(E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, or
(F) takes any corporate action to authorize or effect any
of the foregoing; or
(x) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against an Issuer or any of its
Significant Subsidiaries in an involuntary case,
(B) appoints a Custodian of an Issuer or any of its
Significant Subsidiaries or for all or substantially all of the
property of an Issuer or any of its Significant Subsidiaries, or
(C) orders the liquidation of an Issuer or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60
consecutive days.
(b) The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
(c) A Default under clause (iv) or (v) of Section 6.01(a) hereof
is not an Event of Default until the Trustee or the Holders of 25% in
principal amount of the outstanding Securities notifies the Issuers or such
Subsidiary Guarantor, as the case may be, of the Default and the Issuers or
such Subsidiary Guarantor, as the case may be, does
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not cure such Default within the time specified in such clause (iv) or (v)
after receipt of the notice.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in clause (ix) or (x) of Section 6.01(a) with respect to an Issuer or any
Subsidiary Guarantor) occurs and is continuing, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the then outstanding
Securities by notice to the Issuers, may declare (a "Declaration") (i) in
the case of a Declaration that occurs prior to December 15, 1999, the
Accreted Value of all the Securities then outstanding plus accrued interest
on the Securities to the date of acceleration, and (ii) in the case of a
Declaration that occurs on or after December 15, 1999, the entire principal
amount of all the Securities then outstanding plus accrued interest to the
date of acceleration (the "Default Amount"). Upon any such Declaration,
the Default Amount shall be due and payable immediately. If an Event of
Default specified in clause (ix) or (x) of Section 6.01(a) occurs with
respect to an Issuer or any of the Subsidiary Guarantors, the Default
Amount shall ipso facto become and be immediately due and payable without
any Declaration or other act on the part of the Trustee or any
Securityholder. The Holders of a majority in aggregate principal amount of
the then outstanding Securities by written notice to the Trustee may
rescind any Declaration if all Events of Default then continuing (other
than any Events of Default with respect to the nonpayment of principal of
or interest on any Security which has become due solely as a result of such
Declaration) have been cured, and may waive any Default other than a
Default with respect to a covenant or provision that cannot be modified or
amended without the consent of each Securityholder pursuant to Section 9.02
hereof.
SECTION 6.03. OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the Trustee
and the Securityholders may pursue any available remedy to collect the
payment of principal, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
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SECTION 6.04. WAIVER OF PAST DEFAULTS.
Securityholders of not less than a majority in aggregate
principal amount of the then outstanding Securities by notice to the
Trustee may waive an existing Default or Event of Default and its
consequences, except a continuing Default or Event of Default in the
payment of the principal, premium, if any, or interest on any Security
(other than principal, premium (if any) or interest which has become due
solely as a result of a Declaration) or a Default or Event of Default that
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected. 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 6.05. CONTROL BY MAJORITY.
Securityholders of a majority in principal amount of the
Securities then outstanding voting as a single class may direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the
rights of other Securityholders or that may involve the Trustee in personal
liability.
SECTION 6.06. LIMITATION ON SUITS.
(a) A Securityholder may pursue a remedy with respect to this
Indenture or the Securities only if:
(i) the Securityholder has previously given to the Trustee
written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(iii) such Securityholder or Securityholders offer, and, if
requested, provide, to the Trustee security or indemnity satisfactory
to the Trustee against any loss, liability or expense;
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(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of security or indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee, in the reasonable opinion of such Trustee, a direction
inconsistent with the request.
(b) A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. RIGHTS OF SECURITYHOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Securityholder to receive payment of principal, premium, if any, and
interest on the Security, on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without
the consent of the Securityholder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a)(i) or (ii) or
an acceleration pursuant to Section 6.02 occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of
an express trust against an Issuer or any Subsidiary Guarantor or any other
obligor on the Securities for the whole amount of principal, premium, if
any, and accrued interest remaining unpaid on the Securities and interest
on overdue principal, premium, if any, and, to the extent lawful, interest
on overdue installments of interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including any
advances made by the Trustee and the reasonable compensation, expenses and
disbursements of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof)
and the Securityholders allowed in any judicial proceedings relative to the
Issuers or any Subsidiary Guarantor (or any other obligor on the
Securities),
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its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Securityholders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Securityholder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.10. PRIORITIES.
(a) If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
(i) First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
(ii) Second: if the Securityholders are forced to proceed against
the Issuer directly without the Trustee, to the Securityholders for
their collection costs;
(iii) Third: to the Securityholders for amounts due and
unpaid on the Securities for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if
any, and interest, respectively; and
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(iv) Fourth: to the Issuers or, to the extent the Trustee
collects any amount pursuant to Article 10 hereof from any Subsidiary
Guarantor, to such Subsidiary Guarantor, or to such party as a court
of competent jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date for any
payment to Securityholders.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Securityholder pursuant to Section 6.06 hereof,
or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances and in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform only those duties as are
specifically set forth in this Indenture and the duties of the Trustee
shall be determined solely by the express provisions of this
Indenture, the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the same to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Assets held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document unless the Trustee has reason to believe such fact or matter is not
true.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of an Issuer or any
Subsidiary Guarantor.
(f) The permissive rights of the Trustee to do certain things
enumerated in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or wilful default with
respect to such permissive rights.
(g) Except for an Event of Default under 6.01(a)(i) (other than
with respect to Additional Interest) or (ii) hereof, the Trustee shall not be
deemed to have notice of any Default or Event of Default unless (i)
specifically notified in writing of such event by an Issuer or the
Securityholders of not less than 25% in aggregate principal amount of
Securities outstanding or (ii) a Responsible Officer of the Trustee has
actual knowledge of such Default or Event of Default; as used herein, the
term "actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuers, any
Subsidiary Guarantor or any Affiliate of an Issuer or any Subsidiary
Guarantor with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the
Securities or the Subsidiary Guarantees, it shall not be accountable for the
Issuers' use of the proceeds from the Securities or any money paid to an
Issuer or upon the direction of an Issuer under any provision of this
Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not
be responsible for any statement or recital herein or any statement in the
Securities or the Subsidiary Guarantees or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default in any payment of principal or interest on
any Security, the Trustee may withhold the notice if a committee of its
officers in good faith determines that withholding the notice is in the
interest of the Securityholders. In addition, each Issuer is required to
deliver to the Trustee, within 90 days after the end of each fiscal year of
such Issuer, a certificate indicating whether the signers thereof know of any
Default that occurred during the previous year. The Issuers shall also
deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any events which would constitute a Default or an Event of Default.
SECTION 7.06. REPORTS BY TRUSTEE TO SECURITYHOLDERS.
(a) Within 60 days after each June 15 beginning with the June 15
following the date of this Indenture, the Trustee shall mail to the
Securityholders a brief report dated as of such reporting date that complies
with TIA Section 313(a) (but if no event described in TIA Section 313(a)
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has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA Section
313(b), (c) and (d).
(b) A copy of each report at the time of its mailing to the
Securityholders shall be filed with the Commission and each stock exchange,
if any, on which the Securities are listed. The Issuers shall promptly
notify the Trustee if and when the Securities are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
(a) Each of the Issuers and the each of the Subsidiary Guarantors,
jointly and severally, shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Each of the Issuers and each of the Subsidiary
Guarantors, jointly and severally, shall reimburse the Trustee upon request
for all reasonable disbursements, advances and expenses incurred or made by
it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
(b) Each of the Issuers and each of the Subsidiary Guarantors,
jointly and severally, shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except as set forth below in subparagraph
(d). The Trustee shall notify the Issuers and each of the Subsidiary
Guarantors promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuers or any Subsidiary Guarantor shall not
relieve the Issuers or any of the Subsidiary Guarantors of their Obligations
hereunder. The Trustee may have separate counsel and each of the Issuers and
each of the Subsidiary Guarantors, jointly and severally, shall pay the
reasonable fees and expenses of such counsel. Neither the Issuers nor any
Subsidiary Guarantor need pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
(c) The obligations of each of the Issuers and each of the
Subsidiary Guarantors under this Section 7.07 shall survive the resignation
or removal of the Trustee and the satisfaction and discharge or termination
of this Indenture.
(d) Notwithstanding subparagraphs (a) or (b) above, neither the
Issuers nor any Subsidiary Guarantor need reimburse any expense or indemnify
against any loss
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or liability incurred by the Trustee through its own negligence, bad faith or
willful misconduct.
(e) To secure the Issuers' and each of the Subsidiary Guarantor's
payment obligations in this Section, the Trustee shall have a Lien prior to
the Securities on all money or property held or collected by the Trustee,
except that held in trust to pay principal, premium, if any, and interest on
particular Securities. Such Lien shall survive the resignation or removal of
the Trustee and the satisfaction and discharge of this Indenture.
(f) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(ix) or (x) hereof occurs, the
expenses and the compensation for such services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Issuers. The Securityholders of a
majority in principal amount of the then outstanding Securities may remove
the Trustee by so notifying the Trustee and the Issuers. The Issuers may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian, receiver or other public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuers shall notify each
Securityholder of such event and promptly appoint a successor Trustee. Within
one year after the successor Trustee takes
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office, the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuers.
(d) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to each Securityholder. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
provided all sums owing to the Trustee hereunder have been paid and subject
to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Issuers' and each of the
Subsidiary Guarantor's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
(e) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers, any of the Subsidiary Guarantors or the Securityholders of at least
10% in principal amount of the then outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee after written request by any Securityholder who
has been a Securityholder for at least six months fails to comply with
Section 7.10, such Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however,
that such corporation shall be otherwise qualified and eligible under this
Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
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(a) There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or the District of
Columbia authorized under such laws to exercise corporate trustee power,
shall be subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority and shall have a combined
capital and surplus of at least $50 million as set forth in its most recent
published annual report of condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall
comply with TIA Section 310(b). The provisions of TIA Section 310 shall
also apply to the Issuers and each of the Subsidiary Guarantors, as obligor
of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUERS.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein. The provisions of TIA Section 311 shall apply to
the Issuers and each of the Subsidiary Guarantors as obligor on the
Securities.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE.
(a) When (i) the Issuers deliver to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07 hereof)
canceled or for cancellation or (ii) all outstanding Securities have become
due and payable whether at maturity or as a result of a Notice of Redemption
and the Issuers irrevocably deposit with the Trustee funds sufficient to pay
at maturity or redemption all outstanding Securities, including interest
thereon (other than Securities replaced pursuant to Section 2.07 hereof), and
if in either case the Issuers pay all other sums payable hereunder by the
Issuers, then this Indenture shall, subject to Sections 8.01(e) and 8.06
hereof, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Issuers
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accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuers.
(b) Subject to Sections 8.01(e), 8.02 and 8.06 hereof, the Issuers
at any time may terminate (i) all of their obligations under the Securities
and this Indenture ("legal defeasance option") or (ii) all obligations under
Sections 3.09, 4.04(a), (b) and (c), 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.17, 4.19 or 5.01(iii) and 5.01(iv) and the
operation of Sections 6.01(a)(iv), 6.01(a)(v), 6.01(a)(vi) and 6.01(a)(vii)
(as well as 6.01(a)(ix) and 6.01(a)(x) hereof but only with respect to
Significant Subsidiaries) ("covenant defeasance option"). The Issuers may
exercise their legal defeasance option notwithstanding the prior exercise of
their covenant defeasance option.
(c) If the Issuers exercise their legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If
the Issuers exercise their covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in
Section 6.01(a)(iv), 6.01(a)(vi), 6.01(a)(vii) or 6.01(a)(viii) (or
6.01(a)(ix) and 6.01(a)(x) but only with respect to Significant Subsidiaries
which are Subsidiary Guarantors), or because of the failure of the Issuers or
the Subsidiary Guarantors to comply with Sections 5.01(iii) or 5.01(iv).
(d) Upon satisfaction of the conditions set forth herein and upon
request of the Issuers, the Trustee shall acknowledge in writing the
discharge of those obligations that the Issuers terminate.
(e) Notwithstanding clauses (a) and (b) above, the Issuers'
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.01(d),
8.04, 8.05 and 8.06 hereof and the obligations of each Subsidiary Guarantor
under Article 10 in respect thereof shall survive until the Securities have
been paid in full. Thereafter, the Issuers' obligations in Sections 7.07,
8.04 and 8.05 hereof and the obligations of Subsidiary Guarantors under
Article 10 in respect thereof shall survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE.
(a) The Issuers may exercise their legal defeasance option or
their covenant defeasance option only if:
(i) the Issuers irrevocably deposit in trust with the Trustee
money or U.S. Government Obligations in amounts (including interest,
but without consideration of any reinvestment of such interest) and
maturities sufficient, but in the case of the
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legal defeasance option only, not more than such amounts (as
certified by a nationally recognized firm of independent public
accountants), to pay and discharge at their Stated Maturity (or
such earlier redemption date as the Issuers shall have specified to
the Trustee) the principal of, premium, if any, and interest on all
outstanding Securities to maturity or redemption, as the case may
be, and to pay all of the sums payable by them hereunder; provided,
that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to
the payment of said principal, premium, if any, and interest with
respect to the Securities;
(ii) in the case of the legal defeasance option only, 123 days
pass after the deposit is made and during the 123 day period no Event
of Default specified in Section 6.01(ix) or (x) hereof with respect to
an Issuer or any Subsidiary Guarantor occurs which is continuing at
the end of the period;
(iii) no Default or Event of Default has occurred and is
continuing on the date of such deposit and after giving effect
thereto;
(iv) the deposit does not constitute a default under any other
agreement binding on an Issuer;
(v) the Issuers deliver to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940, as amended;
(vi) in the case of the legal defeasance option, the Issuers
deliver to the Trustee an Opinion of Counsel stating that (x) the
Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders 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;
(vii) in the case of the covenant defeasance option, the
Issuers deliver to the Trustee an Opinion of Counsel to the effect
that the Securityholders 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
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amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred; and
(viii) the Issuers deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article 8 have been complied with.
(b) In order to have money available on a payment date to pay
principal, premium, if any, or interest on the Securities, the U.S.
Government Obligations deposited pursuant to preceding clause (a) shall be
payable as to principal or interest at least one Business Day before such
payment date in such amounts as shall provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
(c) Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3 hereof.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of
principal, premium, if any, and interest on the Securities.
SECTION 8.04. REPAYMENT TO THE ISSUERS.
(a) The Trustee and the Paying Agent shall promptly pay to the
Issuers upon written request any excess money or securities held by them at
any time; provided, however, that the Trustee shall not pay any such excess
to the Issuers unless the amount remaining on deposit with the Trustee, after
giving effect to such transfer are sufficient to pay principal, premium, if
any, and interest on the outstanding Securities, which amount shall be
certified by independent public accountants.
(b) The Trustee and the Paying Agent shall pay to the Issuers upon
written request any money held by them for the payment of principal, premium,
if any, or interest that remains unclaimed for two years after the date upon
which such payment shall have become due; provided, however, that the Issuers
shall have either caused notice of such payment to be mailed to each
Securityholder entitled thereto no less than 30 days prior to
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such repayment or within such period shall have published such notice in a
financial newspaper of widespread circulation published in the City of New
York. After payment to the Issuers, Securityholders entitled to the money
must look to the Issuers and the Subsidiary Guarantors for payment as general
creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect
to such money shall cease.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Issuers and the Subsidiary Guarantors, jointly and severally,
shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations
or the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers' and each of the Guarantor's Obligations under this
Indenture and the Securities and the Subsidiary Guarantees shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that if an Issuer or any Subsidiary Guarantor has made any
payment of principal of, premium, if any, or interest on any Securities
because of the reinstatement of its Obligations, such Issuer or any of the
Subsidiary Guarantors, as the case may be, shall be subrogated to the rights
of the Securityholders to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF SECURITYHOLDERS.
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(a) Notwithstanding Section 9.02 of this Indenture, the Issuers,
when authorized by Board Resolutions, and the Trustee may amend or supplement
this Indenture or the Securities without the consent of any Securityholder:
(i) to cure any ambiguity, omission, defect or inconsistency or
to provide for the assumption by a successor corporation, partnership
trust or limited liability company of the obligation of an Issuer
under this Indenture; provided, that such amendment or supplement does
not, as evidenced by an Opinion of Counsel delivered to the Trustee,
adversely affect the rights of any Securityholder in any respect;
(ii) to comply with Article 5 hereof;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Internal Revenue Code of 1986, as amended, or
in a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Internal Revenue Code of 1986, as amended;
(iv) to add Guarantees with respect to the Securities;
(v) to add to the covenants of the Issuers or the Subsidiary
Guarantors for the benefit of the Securityholders or to surrender any
right or power herein conferred upon the Issuer or the Subsidiary
Guarantors;
(vi) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(vii) to make any change that does not, as evidenced by an
Opinion of Counsel delivered to the Trustee, adversely affect the
rights of any Securityholder in any respect; or
(viii) to evidence or provide for a replacement Trustee under
Section 7.08 hereof;
provided, that the Issuers have delivered to the Trustee an Opinion of
Counsel stating that any such amendment or supplement complies with the
provisions of this Section 9.01.
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(b) Upon the request of the Issuers and the Subsidiary Guarantors
accompanied by Board Resolutions of their respective Boards of Directors or
board of managers, as the case may be, authorizing the execution of any such
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Issuers and
the Subsidiary Guarantors in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein
contained, but the Trustee shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities
under this Indenture or otherwise.
(c) After an amendment or supplement under this Section 9.01
becomes effective, the Issuers shall mail to all Securityholders a notice
briefly describing such amendment or supplement. The failure to give such
notice to all Securityholders, or any defect therein, shall not impair or
affect the validity of an amendment or supplement under this Section.
SECTION 9.02. WITH CONSENT OF SECURITYHOLDERS.
(a) The Issuers, the Subsidiary Guarantors and the Trustee may
amend or supplement this Indenture or the Securities with the written consent
of the Securityholders of not less than a majority in aggregate principal
amount of the Securities, voting as a single class, then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Securities) and any existing Default and its consequences
(including, without limitation, an acceleration of the Securities) or
compliance with any provision of this Indenture or the Securities may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Securities (including consents obtained in connection
with a tender offer or exchange offer for the Securities). Furthermore,
subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Securities) may waive compliance in a particular instance by the Issuers with
any provision of this Indenture or the Securities. However, without the
consent of each Securityholder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Securities held by a
non-consenting Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
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(ii) reduce the rate of or extend the time for payment of any
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity
of any Security or alter the redemption or repurchase provisions
(including without limitation Sections 3.07, 3.09, 4.11 and 4.14
hereof) with respect thereto;
(iv) reduce the premium payable upon the redemption or repurchase
of any Security or change the time at which any Security may be
redeemed in accordance with Section 3.07;
(v) make any Security payable in money other than that stated in
the Security;
(vi) make any change in Section 6.04 or 6.07 hereof or in this
Section 9.02(a); or
(vii) waive a Default or Event of Default in the payment of
principal of premium, if any, or interest on, or redemption payment
with respect to, any or Security (excluding any principal or interest
due solely as a result of the occurrence of a Declaration);
(viii) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities.
(b) Upon the request of the Issuer and the Subsidiary Guarantors
accompanied by Board Resolutions of their respective Boards of Directors or
board of managers, as the case may be, authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Securityholders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Issuers and the
Subsidiary Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
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(c) It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
(d) After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Issuers shall mail to all Securityholders a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Securityholder is a continuing consent by the
Securityholder and every subsequent Securityholder or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such
Securityholder or subsequent Securityholder may revoke the consent as to its
Security if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder.
(b) The Issuers may fix a record date for determining which
Securityholders must consent to such amendment, supplement or waiver. If the
Issuers fix a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the
most recent list of Securityholders furnished to the Trustee prior to such
solicitation pursuant to Section 2.05 hereof, or (ii) such other date as the
Issuers shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
(a) Securities authenticated and delivered after the execution of
any supplemental indenture may bear a notation in form approved by the
Trustee as to any matter provided for in such amendment, supplement or waiver
on any Security thereafter authenticated. The
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Issuers in exchange for all Securities may issue and the Trustee shall
authenticate new Securities that reflect the amendment, supplement or waiver.
(b) Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, waiver or supplemental
indenture authorized pursuant to this Article 9 if the amendment, waiver or
supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but
need not, sign it. In signing or refusing to sign such amendment, waiver or
supplemental indenture, the Trustee shall be entitled to receive and, subject
to Section 7.01, shall be fully protected in relying upon, in addition to the
documents required by Section 11.04, an Officers' Certificate and an Opinion
of Counsel as conclusive evidence that such amendment, waiver or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Issuers
in accordance with its terms.
ARTICLE 10
SUBSIDIARY GUARANTEE OF SECURITIES
SECTION 10.01. SUBSIDIARY GUARANTEE
(a) Each Subsidiary Guarantor hereby jointly and severally
irrevocably and unconditionally guarantees, as a primary obligor and not a
surety, to each Securityholder of a Security now or hereafter authenticated
and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture,
the Securities or the Obligations of the Issuers hereunder or thereunder, (i)
the due and punctual payment of the principal, premium, if any, interest
(including post-petition interest in any proceeding under any Bankruptcy Law
whether or not an allowed claim in such proceeding) on overdue principal,
premium, if any, and interest, if lawful on such Security, and (ii) all other
monetary Obligations payable by the Issuers under this Indenture (including
under Section 7.07 hereof) and the Securities (all of the foregoing being
hereinafter collectively called the "Guaranteed Obligations"), when and as
the same shall become due and payable, whether by acceleration thereof, call
for redemption or otherwise (including amounts that would become due but for
the operation
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of the automatic stay under Section 362(a) of the Bankruptcy Code), in
accordance with the terms of any such Security and of this Indenture,
subject, however, in the case of (i) and (ii) above, to the limitations set
forth in Section 10.04 hereof. Each Subsidiary Guarantor hereby agrees that
its Obligations hereunder shall be absolute and unconditional, irrespective
of, and shall be unaffected by, any failure to enforce the provisions of any
such Security or this Indenture, any waiver, modification or indulgence
granted to the Issuers with respect thereto, the recovery of any judgment
against an Issuer, any action to enforce the same, by the Securityholders or
the Trustee, the recovery of any judgment against the Issuer, any action to
enforce the same, or any other circumstances which may otherwise constitute a
legal or equitable discharge of a surety or guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, filing of claims with a court
in the event of a merger or bankruptcy of an Issuer, any right to require a
proceeding first against the Issuers, the benefit of discussion, protest or
notice with respect to any such Security or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Subsidiary
Guarantee shall not be discharged as to any such Security except by payment
in full of the principal thereof, premium, if any, and all accrued interest
thereon.
(b) Each Subsidiary Guarantor further agrees that this Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right
to require that any resort be had by any Securityholder or the Trustee to any
Security held for payment of the Guaranteed Obligations.
(c) Each Subsidiary Guarantor agrees that it shall not be entitled
to, and hereby irrevocably waives, any right of subrogation in relation to
the Securityholders or the Trustee in respect of any Guaranteed Obligations.
Each Subsidiary Guarantor further agrees that, as between such Subsidiary
Guarantor, on the one hand, and the Securityholders and the Trustee, on the
other hand, (x) the maturity of the Guaranteed Obligations may be accelerated
as provided in Article 6 for the purposes of such Subsidiary Guarantor's
Subsidiary Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guaranteed
Obligations, and (y) in the event of any Declaration of acceleration of such
Guaranteed Obligations as provided in Article 6 hereof, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantor for the purpose of this Article 10.
(d) Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee
or any Securityholder in enforcing any rights under this Article 10.
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(e) The Subsidiary Guarantee set forth in this Article 10 shall
not be valid or become obligatory for any purpose with respect to a Security
until the certificate of authentication on such Security shall have been
signed by or on behalf of the Trustee.
SECTION 10.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
(a) To evidence each Subsidiary Guarantor's Subsidiary Guarantee
set forth in this Article 10, each Subsidiary Guarantor hereby agrees that a
notation of such Subsidiary Guarantee shall be placed on each Security
authenticated and delivered by the Trustee.
(b) This Indenture shall be executed on behalf of each Subsidiary
Guarantor, and an Officer of each Subsidiary Guarantor shall sign the
notation of the Subsidiary Guarantee on the Securities by manual or facsimile
signature. If an Officer whose signature is on this Indenture or the
notation of the Subsidiary Guarantee no longer holds that office at the time
the Trustee authenticates the Security on which the Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless. Each
Subsidiary Guarantor hereby agrees that the Subsidiary Guarantee set forth in
Section 10.01 hereof shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of the Subsidiary
Guarantee.
(c) The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of each Subsidiary
Guarantor.
SECTION 10.03. SUBSIDIARY GUARANTEE UNCONDITIONAL, ETC.
Upon failure of payment when due of any Guaranteed Obligation for
whatever reason, each Subsidiary Guarantor will be obligated to pay the same
immediately. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be continuing, absolute and unconditional, irrespective of:
the recovery of any judgment against an Issuer or any Subsidiary Guarantor;
any extension, renewal, settlement, compromise, waiver or release in respect
of any obligation of an Issuer under this Indenture or any Security, by
operation of law or otherwise; any modification or amendment of or supplement
to this Indenture or any Security; any change in the corporate existence,
structure or ownership of an Issuer, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting an Issuer or its assets
or any resulting release or discharge of any obligation of an Issuer
contained in this Indenture or any Security; the existence of any claim,
set-off or other rights which any Subsidiary Guarantor may have at any time
against an Issuer, the Trustee, any Securityholder or any other Person,
whether in connection herewith or any
95
unrelated transactions; provided, that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim; any
invalidity or unenforceability relating to or against an Issuer for any
reason of this Indenture or any Security, or any provision of applicable law
or regulation purporting to prohibit the payment by an Issuer of the
principal, premium, if any, or interest on any Security or any other
Guaranteed Obligation; or any other act or omission to act or delay of any
kind by an Issuer, the Trustee, any Securityholder or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Subsidiary
Guarantors' obligations hereunder. Each Subsidiary Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuers, protest, notice and all demand
whatsoever and covenants that this Subsidiary Guarantee will not be
discharged except by the complete performance of the obligations contained in
the Securities, this Indenture and in this Article 10. Each Subsidiary
Guarantor's obligations hereunder shall remain in full force and effect until
this Indenture shall have terminated and the principal of and interest on the
Securities and all other Guaranteed Obligations shall have been paid in full.
If at any time any payment of the principal of or interest on any Security
or any other payment in respect of any Guaranteed Obligation is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of an Issuer or otherwise, each Subsidiary Guarantor's
obligations hereunder with respect to such payment shall be reinstated as
though such payment had been due but not made at such time, and this Article
10, to the extent theretofore discharged, shall be reinstated in full force
and effect. Each Subsidiary Guarantor irrevocably waives any and all rights
to which it may be entitled, by operation of law or otherwise, upon making
any payment hereunder to be subrogated to the rights of the payee against the
Issuers with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by the Issuers in respect thereof.
SECTION 10.04. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each
Securityholder hereby confirms that it is the intention of all such parties
that the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary
Guarantee not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, Federal and state fraudulent conveyance laws or other
legal principles. To effectuate the foregoing intention, the Securityholders
and each Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other
96
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to Section
10.05 hereof, result in the obligations of such Subsidiary Guarantor under
the Subsidiary Guarantee not constituting such fraudulent transfer or
conveyance under federal or state law.
SECTION 10.05. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from all other Subsidiary Guarantors in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Issuers' obligations
with respect to the Securities or any other Subsidiary Guarantor's
obligations with respect to the Subsidiary Guarantee.
SECTION 10.06. RELEASE.
Upon the sale or disposition of all of the equity interests of a
Subsidiary Guarantor to an entity which is not an Issuer or a Subsidiary of
an Issuer, which is otherwise in compliance with this Indenture, such
Subsidiary Guarantor shall be deemed released from all its obligations under
this Indenture without any further action required on the part of the Trustee
or any Securityholder and the Subsidiary Guarantee of such Subsidiary
Guarantor shall terminate; provided, however, that any such termination shall
occur if and only to the extent that all Obligations of each Subsidiary
Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, Indebtedness of an Issuer
and the other Subsidiary Guarantors shall also terminate upon such release,
sale or transfer; provided further, that without limiting the foregoing, any
proceeds received by an Issuer or any Subsidiary of an Issuer from such
transaction shall be applied as provided in Section 4.10 and Section 3.09.
The Trustee shall deliver an appropriate instrument evidencing such release
upon receipt of a request by the Issuers accompanied by an Officers'
Certificate certifying as to the compliance with this Section 10.06. Any
Subsidiary Guarantor not so released remains liable for the full amount of
principal, premium, if any, and interest on the Securities as provided in
this Article 10.
SECTION 10.07. ADDITIONAL SUBSIDIARY GUARANTORS.
Any Person that was not a Subsidiary Guarantor on the date of this
Indenture may become a Subsidiary Guarantor by executing and delivering to
the Trustee (a) a supplemental indenture in substantially the form and
substance satisfactory to the Trustee,
97
which subjects such Person to the provisions (including, without limitation,
the representations and warranties in this Article 10) of this Indenture as a
Subsidiary Guarantor and (b) an Opinion of Counsel complying with Section
9.06 and to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid,
binding and enforceable obligation of such Person (subject to such customary
exceptions concerning creditors' rights and equitable principles as may be
acceptable to the Trustee in its discretion). The Subsidiary Guarantee of
each Person described in this Section 10.07 shall apply to all Securities
theretofore executed and delivered, notwithstanding any failure of such
Securities to contain a notation of such Subsidiary Guarantee thereon.
SECTION 10.08. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into an Issuer or another Subsidiary Guarantor that is a
Wholly-Owned Subsidiary of an Issuer or shall prevent any sale or conveyance
of the property of a Subsidiary Guarantor as an entirety or substantially as
an entirety, to an Issuer or another Subsidiary Guarantor that is a
Wholly-Owned Subsidiary of an Issuer. Upon any such consolidation, merger,
sale or conveyance, the Subsidiary Guarantee given by such Subsidiary
Guarantor shall no longer have any force or effect.
(b) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into a corporation or corporations other than an Issuer or
another Subsidiary Guarantor (whether or not affiliated with the Subsidiary
Guarantor), or successive consolidations or mergers in which a Subsidiary
Guarantor or its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety, to a corporation
other than an Issuer or another Subsidiary Guarantor (whether or not
affiliated with the Subsidiary Guarantor); provided, however, that, subject
to Sections 10.06 and 10.08(a), (x) (i) immediately after such transaction,
and giving effect thereto, no Default or Event of Default shall have occurred
as a result of such transaction and be continuing, or (ii) such transaction
does not violate any covenants set forth in this Indenture, and (y) (i) the
respective transaction is treated as an Asset Disposition for purposes of
Section 4.10 and Section 3.09 hereof or (ii) if the surviving corporation is
not the Subsidiary Guarantor, each Subsidiary Guarantor hereby covenants and
agrees that, upon any such consolidation, merger, sale or conveyance, the
Subsidiary Guarantee set forth in this Article 10, and the due and punctual
performance and
98
observance of all of the covenants and conditions of this Indenture to be
performed by such Subsidiary Guarantor, shall be expressly assumed (in the
event that the Subsidiary Guarantor is not the surviving corporation in the
merger), by supplemental indenture satisfactory in form to the Trustee of the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor
corporation shall succeed to, and be substituted for, the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor.
SECTION 10.09. SUCCESSORS AND ASSIGNS.
This Article 10 shall be binding upon each Subsidiary Guarantor and
its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Securityholders and, in the event of any
transfer or assignment of rights by any Securityholder or the Trustee, the
rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.10. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive
each such Subsidiary Guarantor from performing its Subsidiary Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and
(to the extent that it may lawfully do so) each such Subsidiary Guarantor
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control. Until such time as this
Indenture becomes qualified under the TIA,
99
the Issuers, the Subsidiary Guarantors and the Trustee shall be deemed
subject to and governed by the TIA as if this Indenture were so qualified on
the date hereof.
SECTION 11.02. NOTICES.
(a) Any notice or communication by the Issuers, any Subsidiary
Guarantor or the Trustee to the other is duly given if in writing and
delivered in person or mailed by first class mail (registered or certified,
return receipt requested), confirmed facsimile transmission or overnight air
courier guaranteeing next day delivery, to the other's address:
If to the Issuers or any of the Subsidiary Guarantors:
Brill Media Company, LLC
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47708
Attention: Alan R. Brill
If to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
Attention: Corporate Trust Administration
Facsimile Number: (212) 852-1625
(b) The Issuers or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications (other than those sent to
Securityholders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if by facsimile transmission; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
(d) Any notice or communication to a Securityholder shall be
mailed by first class mail, postage prepaid, to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section
100
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.
(e) If a notice or communication is mailed to any Person in the
manner provided above within the time prescribed, it is duly given, whether
or not the addressee receives it.
(f) If the Issuers mail a notice or communication to
Securityholders, they shall mail a copy to the Trustee and each Agent at the
same time.
SECTION 11.03. COMMUNICATION BY SECURITYHOLDERS WITH OTHER
SECURITYHOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities. The Issuers, the Subsidiary Guarantors, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers and/or any of the
Subsidiary Guarantors to the Trustee to take any action under this Indenture,
the Issuers and/or any of the Subsidiary Guarantors, as the case may be,
shall furnish to the Trustee:
(i) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied
(except with regard to an authentication order pursuant to Section
2.02(c) hereof, which shall require a certificate of two Officers);
and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
101
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall include:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York City, or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
SECTION 11.08. NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee, agent,
manager, stockholder or partner of an Issuer or its predecessors shall have
any liability for any Obligations of an Issuer under the Securities or this
Indenture or for any claim based on,
102
in respect of, or by reason of such Obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. This waiver and release are part of the consideration for
issuance of the Securities.
SECTION 11.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.10. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Subsidiary Guarantors, an Issuer or their
respective Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 11.12. SUCCESSORS.
All agreements of the Issuers and the Subsidiary Guarantors in this
Indenture and the Securities shall bind their successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 11.13. SEVERABILITY.
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 11.14. COUNTERPART ORIGINALS.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be an original, but all of them together represent
the same agreement.
103
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
104
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
SIGNATURES
BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By_______________________
Name: Alan R. Brill
Title:President
BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation
By_______________________
Name: Alan R. Brill
Title: President
BMC HOLDINGS, LLC, a Virginia Limited
Liability Company
BY: BRILL MEDIA COMPANY, LLC, its Manager
BY: BRILL MEDIA MANAGEMENT, INC., its Manager
By:_______________________
Name: Alan R. Brill
Title: President
READING RADIO, INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
TRI-STATE BROADCASTING, INC., a Virginia
Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
NORTHERN COLORADO RADIO,
INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
NCR II, INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MISSOURI
BROADCASTING, INC., a Virginia
Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CMB II, INC.
By:_______________________
Name: Alan R. Brill
Title: Vice President
NORTHLAND BROADCASTING, LLC,
a Virginia Limited Liability Company
By: NORTHLAND HOLDINGS, LLC, a
Virginia Limited Liability Company,
its Manager
By: BMC HOLDINGS, LLC,
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA COMPANY, LLC
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation its
Manager
By:_______________________
Name: Alan R. Brill
Title: President
NB II, INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN NEWSPAPERS,
INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CADILLAC NEWSPAPERS, INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CMN ASSOCIATED PUBLICATIONS,
INC. a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION
CO., L.P.
By: CENTRAL MICHIGAN
DISTRIBUTION CO., INC. its General
Partner
By:_______________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION CO., INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
GLADWIN NEWSPAPERS, INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
GRAPH ADS PRINTING, INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
MIDLAND BUYER'S GUIDE, INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
ST. JOHNS NEWSPAPERS, INC., a
Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: Vice President
HURON P.S. LLC, a Virginia Limited
Liability Company
By: HURON HOLDINGS, LLC, a Virginia Limited
Liability Company, its Manager
By: BMC HOLDINGS, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
HURON NEWSPAPERS, LLC, a Virginia Limited
Liability Company
By: BMC HOLDINGS, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
HURON HOLDINGS, LLC, a Virginia Limited Liability
Company
By: BMC HOLDINGS, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
NORTHERN COLORADO HOLDINGS, LLC
By: BMC HOLDINGS, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA MANAGEMENT, INC. a Virginia
Corporation, its Manager
By: _______________________
Alan R. Brill, President
NCR III, LLC, a Virginia Limited Liability Company
By: NCH II, LLC, a Virginia Limited Liability
Company, its Manager
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
By: Brill Media Company, LLC, a Virginia Limited
Liability Company, its Manager
By: Brill Media Management, Inc., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
NCH II, LLC, a Virginia Limited Liability Company
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
NORTHLAND HOLDINGS, LLC, a Virginia Limited
Liability Company
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By:_______________________
Name: Alan R. Brill
Title: President
CMN HOLDING, INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: President
BRILL RADIO INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: President
BRILL NEWSPAPERS, INC., a Virginia Corporation
By:_______________________
Name: Alan R. Brill
Title: President
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:_______________________
Name:
Title:
SCHEDULE 1
SUBSIDIARY GUARANTORS
1. BMC Holdings, LLC
2. Reading Radio, Inc.
3. Tri-State Broadcasting, Inc.
4. Northern Colorado Radio, Inc.
5. NCR II, Inc.
6. Central Missouri Broadcasting, Inc.
7. CMB II, Inc.
8. Northland Broadcasting, LLC
9. NB II, Inc.
10. Central Michigan Newspapers, Inc.
11. Cadillac Newspapers, Inc.
12. CMN Associated Publications, Inc.
13. Central Michigan Distribution Co., L.P.
14. Central Michigan Distribution Co., Inc.
15. Gladwin Newspapers, Inc.
16. Graph Ads Printing, Inc.
17. Midland Buyer's Guide, Inc.
18. St. Johns Newspapers, Inc.
19. Huron Holdings, LLC
20. Northern Colorado Holdings, LLC
21. NCR III, LLC
22. NCH II, LLC
23. Northland Holdings, LLC
24. CMN Holding, Inc.
25. Brill Radio Inc.
26. Brill Newspapers, Inc.
27. Huron P.S., LLC
28. Huron Newspapers, LLC
SCHEDULE 2
LIENS/CAPITAL LEASES
MONTHLY BALANCE AS OF
COMPANY LENDER DESCRIPTION PERMITTED LIENS PAYMENT 8-31-97
- ------------------ ------------------- -------------- -------------------- ---------- ---------
CMB II............ Jefferson Bank PMF Equipment $ 3,850 $153,593
CMB II............ Town & Country Seller Financing 1st Lien Note/Stock 3,033 209,721
Communications Pledge
CMB II............ Jefferson Bank Promissory Note Unsecured 3,155 141,614
CMBI.............. Ford Motor CL 94 Ford 447 3,881
Credit
CMBI.............. Tower Company, CL FM Tower/ 12,500 370,545
Inc. Transmitter
CMNI.............. Ford Motor CL 94 Ford Van 447 4,571
Credit
CMNI.............. Ryder CL 98 Navistar Truck 2,410 104,200
and Stoughton
Trailer
CMNI.............. PX Investment CMN Building Mar 00 3,850 59,901
CMNI.............. FirstBank PMF Imagesetter 3,713 62,055
CMNI.............. Heller CL Inserting Machine 2,513 16,923
NB II............. Al Quarnstrom CL Equipment Lease 655 9,640
NB II............. QB Broadcasting, Seller Financing 1st Lien Note/Stock 9,074 628,118
Inc. Pledge
NB, LLC........... Citicorp CL Broadcast 1,199 34,381
Equipment
NB, LLC........... Colonial Pacific CL Computer 562 15,036
Equipment
NB, LLC........... Republic Leasing CL Broadcast 584 14,973
Equipment
NCRI.............. Philip Brewer Noncompete Subordinated 3,984 185,571
Agreement 2nd/Stock Pledge
1
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. 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) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO
SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO AN 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
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), AND IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL
EXHIBIT A
Page 2
ACCEPTABLE TO THE ISSUERS HEREOF THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT AN INITIAL INVESTOR PURCHASING AS DESCRIBED IN
CLAUSE (1)(B) ABOVE FROM THE INITIAL PURCHASER OF THIS NOTE SHALL NOT
BE PERMITTED TO TRANSFER THIS NOTE TO AN INSTITUTIONAL ACCREDITED
INVESTOR. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE
TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING PURSUANT
TO CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUERS HEREOF SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS ANY OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES"
EXHIBIT A
Page 3
AND "UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.(*)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY
SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.(*)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS
- ----------------
(*) To be included in Restricted Securities only.
(*) To be included in the Global Note only.
EXHIBIT A
Page 4
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON 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.*/
THIS SECURITY WILL BE CONSIDERED TO HAVE BEEN ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET.SEQ. OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS
SECURITY IS DECEMBER 30, 1997. FOR INFORMATION REGARDING THE ISSUE
PRICE, AMOUNT OF OID PER $1,000 OF PRINCIPAL AMOUNT AND YIELD TO
MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE CHIEF
FINANCIAL OFFICER OF BRILL MEDIA COMPANY, LLC AT 812-423-6200 OR AT
THE ADDRESS SET FORTH ON THE REVERSE OF THIS SECURITY.
EXHIBIT A
Page 5
CUSIP No:
(Front of Security)
No. $__________
BRILL MEDIA COMPANY, LLC
BRILL MEDIA MANAGEMENT, INC.
12% Senior Notes due 2007, Series A
BRILL MEDIA COMPANY, LLC, a Virginia limited liability company, and BRILL
MEDIA MANAGEMENT, INC., a Virginia corporation, jointly and severally,
promise to pay to ____________________________________, or its registered
assigns, the principal sum of $____________ [For Global Notes add: , as
such amount may be increased or decreased on the records of the Trustee,]
on December 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing June 15, 1998.
Interest Record Dates: June 1 and December 1 (whether or not a Business
Day).
Additional provisions of this Security are set forth on the other side of
this Security.
Dated:
BRILL MEDIA COMPANY, LLC, a Virginia Limited
Liability Company
By: BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation, its Manager
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
Name:
Title:
EXHIBIT A
Page 6
BRILL MEDIA MANAGEMENT, INC., a Virginia
Corporation
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By:_________________________________
Authorized Officer
EXHIBIT A
Page 7
(Reverse of Security)
12% SENIOR NOTE DUE 2007, Series A
Capitalized terms used herein have the meanings assigned to them
in the Indenture (as defined below) unless otherwise indicated.
1. Interest. Brill Media Company LLC, a Virginia limited liability
company ("BMC"), and Brill Media Management, Inc., a Virginia corporation
(together with BMC, the "Issuers"), jointly and severally, promise to pay
interest on the principal amount of this Security at the rate and in the
manner specified below. The Issuers shall pay, in cash, interest on the
principal amount of this Security at the rate per annum of 7 1/2% per annum
from the date of original issuance until December 15, 1999, and at a rate of
12% per annum from and including December 15, 1999 until maturity. The
Issuers will pay interest semiannually in arrears on June 15 and December 15
of each year (each an "Interest Payment Date"), commencing June 15, 1998, or
if any such day is not a Business Day on the next succeeding Business Day.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months. Interest shall accrue from the most recent Interest Payment
Date to which interest has been paid or, if no interest has been paid, from
the date of the original issuance of the Securities. To the extent lawful,
the Issuers shall pay interest on overdue principal at the rate of 2% per
annum in excess of the then applicable interest rate on the Securities; they
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful. The rate of
interest payable on this Security shall be subject to the assessment of
additional interest (the "Additional Interest") as follows:
(i) if neither the Exchange Offer Registration Statement (as
defined below) nor the Shelf Registration Statement (as defined below) is
filed within 60 days following the Issue Date (the "Filing Date"),
Additional Interest shall accrue on the Initial Securities over and above
the stated interest at a rate of 0.50% per annum for the first 60 days
commencing on the 61st day after the Filing Date, such Additional Interest
rate increasing by an additional 0.50% per annum at the beginning of each
subsequent 30-day period;
(ii) if neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is declared effective within 150 days
following the Filing Date, Additional Interest shall accrue on the Initial
Securities over and above the stated interest at a rate of 0.50% per annum
for the first 120 days commencing on the 151st day after the Filing Date,
such Additional Interest rate increasing by an additional 0.50% per annum
at the beginning of each subsequent 30-day period; or
EXHIBIT A
Page 8
(iii) if (A) the Issuers and the Subsidiary Guarantors have not
exchanged all Securities validly tendered in accordance with the terms of
the Exchange Offer on or prior to 180 days after the Filing Date or (B) the
Exchange Offer Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective at any time
prior to the second anniversary of the Issue Date (unless all the
Securities have been sold thereunder), then Additional Interest shall
accrue on the Initial Securities over and above the stated interest at a
rate of 0.50% per annum for the first 30 days commencing on (x) the 181st
day after the Filing Date with respect to the Securities validly tendered
and not exchanged by the Issuers, in the case of (A) above, or (y) the day
the Exchange Offer Registration Statement ceases to be effective or usable
for its intended purpose in the case of (B) above, or (z) the day such
Shelf Registration Statement ceases to be effective in the case of (C)
above, such Additional Interest rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 30-day period; provided, however,
that the Additional Interest rate on the Securities may not exceed in the
aggregate 1.5% per annum in any event; and provided further, that (1) upon
the filing of the Exchange Offer Registration Statement or Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or Shelf
Registration Statement (in the case of (ii) above), or (3) upon the
exchange of Exchange Securities for all Securities tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of the Exchange Offer
Registration Statement which had ceased to remain effective (in the case of
clause (iii)(B) above), or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause
(iii)(C) above), Additional Interest on the Initial Securities as a result
of such clause or the relevant subclause thereof, as the case may be, shall
cease to accrue.
"Exchange Offer" shall mean the exchange offer by the Issuers of
Initial Securities for Exchange Securities pursuant to Section 2(a) of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Offering Memorandum or prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Interest Record Date" shall have the meaning provided on the
front of this Security.
EXHIBIT A
Page 9
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers and the Subsidiary Guarantors pursuant to the
provisions of the Registration Rights Agreement which covers all of the
Registrable Notes (as defined therein) 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
Offering Memorandum contained therein, all exhibits thereto and all
material incorporated by reference therein.
2. Method of Payment. The Issuers shall pay interest on this
Security (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the Interest Record Date
immediately preceding the Interest Payment Date, even if such Securities
are cancelled after such Interest Record Date and on or before such
Interest Payment Date. Securityholders must surrender Securities to a
Paying Agent to collect principal payments. The Issuers shall pay
principal, premium, if any, and interest in money of the United States that
at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender"). However, the Issuers may pay principal,
premium, if any, and interest by its check payable in such U.S. Legal
Tender. The Issuers may deliver any such interest payment to the Paying
Agent or to a Securityholder at the Securityholder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent,
Registrar or co-registrar without prior notice to any Securityholder. The
Issuers or any Subsidiary Guarantor may act in any such capacity.
4. Indenture. The Issuers issued the Securities under an
Indenture, dated as of December 30, 1997 (the "Indenture"), among the
Issuers, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the TIA as in effect on the date the Indenture is
qualified, except as the Indenture otherwise provides. The Securities are
subject to all such terms, and Securityholders are referred to the
Indenture and the TIA for a statement of such terms. The terms of the
Indenture shall govern any inconsistencies between the Indenture and the
Securities. The Securities are senior Obligations of the Issuers limited
to $105,000,000 in aggregate principal amount.
5.(a) Optional Redemption. Except as indicated in the next
succeeding paragraph, Securities will not be redeemable at the option of
the Issuers prior to December 15, 2002. On and after such date, the
Securities will be redeemable, at the Issuers' option, in whole or in part,
at any time upon not less than 30 nor more than 60 days' prior notice
mailed by first-class mail to each Holder's registered address, at the
following redemption prices (expressed in percentages of principal amount),
if
EXHIBIT A
Page 10
redeemed during the 12-month period commencing on December 15th of the
years set forth below, plus accrued and unpaid interest to the redemption
date (subject to the right of holders of record on the relevant record date
to receive interest due on the relevant Interest Payment Date):
Period Redemption Price
2002................................ 106.00%
2003................................ 104.00%
2004................................ 102.00%
2005 and thereafter................. 100.00%
(b) Optional Redemption Upon Public Equity Offerings. In the
event of the sale by an Issuer prior to December 15, 2000 of its Capital
Stock (other than Disqualified Stock) in one or more Public Equity
Offerings the Net Cash Proceeds of which are at least $25.0 million in the
aggregate, the Issuers may, at their option, use the Net Cash Proceeds of
such sale or sales of Capital Stock to redeem up to 25% of the aggregate
principal amount of the aggregate principal amount of the Securities at a
redemption price, in the case of a redemption date prior to December 15,
1999, equal to 112.0% of the Accreted Value thereof plus accrued and unpaid
interest thereon, if any, to the redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on
the relevant Interest Payment Date) and for any redemption date on or after
December 15, 1999, at a redemption price equal to 112.0% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date);
provided, however, that after any such redemption the aggregate principal
amount of the Securities outstanding must equal at least $79.0 million. In
order to effect the foregoing redemption with the proceeds of any such sale
of Capital Stock, the Issuers shall make such redemption not more than 90
days after the consummation of any such sale or sales of Capital Stock.
6. Mandatory Redemption. The Securities are not subject to
mandatory redemption or sinking fund payments.
7. Repurchase at Option of Securityholder. (a) If there is a
Change of Control, each Holder of Securities will have the right to require
the Issuers to repurchase all or any part of such Holder's Securities, in
the case of a repurchase date prior to December 15, 1999, at a purchase
price in cash equal to 101% of the Accreted Value thereof plus any accrued
and unpaid interest, if any, to the date of repurchase (subject to the
right of Securityholders of record on the relevant record date to receive
interest due
EXHIBIT A
Page 11
on the relevant Interest Payment Date) and for any repurchase date on or
after December 15, 1999, at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the
date of repurchase (subject to the right of Securityholders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date) (such applicable purchase price being hereinafter referred to as the
"Change of Control Purchase Price"). Within 30 days following any Change of
Control, the Issuers will mail a notice to each Securityholder stating (i)
that a Change of Control has occurred and that such Securityholder has the
right to require the Issuers to repurchase all or any part of such
Securityholder's Securities at a repurchase price in cash equal to the Change
of Control Purchase Price (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date); (ii) the circumstances and relevant facts regarding
such Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control); (iii) the repurchase date (which will be no earlier then
30 days nor later than 60 days from the date such notice is mailed); and (iv)
the procedures, determined by the Issuers consistent with the Indenture, that
a Securityholder must follow in order to have its Securities repurchased.
Securityholders that are subject to an offer to repurchase may elect to have
such Securities repurchased by completing the form entitled "Option of
Securityholder to Elect Purchase" appearing below.
(b) If an Issuer or a Subsidiary consummates any Asset Disposition,
and when the aggregate amount of Net Available Cash from such an Asset
Disposition exceeds $10 million (except as otherwise set forth in Section
4.10 of the Indenture), the Issuers shall be required to offer to purchase
the maximum principal amount of Securities, that is in an integral multiple
of $1,000, that may be purchased out of the Net Available Cash at 100% of the
Accreted Value thereof if such purchase date occurs prior to December 15,
1999, and at 100% of the principal amount thereof if such purchase date
occurs on or after December 15, 1999, in each case plus accrued and unpaid
interest, if any, to the date fixed for the closing of such offer in
accordance with the procedures set forth in the Indenture. If the aggregate
principal amount of Securities surrendered by Holders thereof exceeds the
amount of Net Available Cash, the Securities to be redeemed shall be selected
on a pro rata basis to the extent practicable. Securityholders that are the
subject of an offer to purchase will receive an Asset Disposition Offer from
the Issuers prior to any related purchase date and may elect to have such
Securities purchased by completing the form entitled "Option of
Securityholder to Elect Purchase" appearing below.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days before the redemption date to each Holder whose Securities
are to be redeemed at its registered address. Securities may be redeemed
in part but only in whole multiples of $1,000, unless all of the Securities
held by a Securityholder are to be redeemed. On and after the redemption
date, interest ceases to accrue on Securities or portions of them called
for redemption.
EXHIBIT A
Page 12
9. Registration Rights. Pursuant to the Registration Rights
Agreement, and subject to certain terms and conditions stated therein, the
Issuers will be obligated to consummate an Exchange Offer pursuant to which
the Holders of the Initial Securities shall have the right to exchange this
Security for Exchange Securities, which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects to the Initial Securities except that the Exchange Notes
(i) shall contain no restrictive legend thereon and (ii) shall not be
entitled to any further registration rights hereunder or to any Additional
Interest.
10. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Securityholder among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
exchange or register the transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange or register the
transfer of any Securities during a period beginning at the opening of
business on a Business Day 15 days before the day of any selection of
Securities to be redeemed and ending at the close of business on the day of
selection or during the period between an Interest Record Date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the
Trustee for registration of the transfer of this Security, the Trustee, any
Agent and the Issuers shall treat the Person in whose name this Security is
registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Security and for all
other purposes whatsoever, whether or not this Security is overdue, and
neither the Trustee, any Agent nor the Issuers shall be affected by notice
to the contrary. The registered Securityholder shall be treated as its
owner for all purposes.
12. Amendments and Waivers. Subject to certain exceptions
provided in the Indenture, the Issuers and the Trustee may amend or
supplement the Indenture or the Securities with the consent of the Holders
of a majority in principal amount of the then outstanding Securities, and,
among other things, any existing Default or Event of Default (except a
payment default) may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Securities. Under
certain conditions, without the consent of any Securityholder, the Issuers
and the Trustee may amend the Indenture or the Securities may be amended
to, among other things, cure any ambiguity, defect or inconsistency, to
comply with the requirements of the Commission in order to effect or
maintain qualification of the Indenture under the TIA or to make any change
that does not adversely affect the rights of any Securityholder.
EXHIBIT A
Page 13
13. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Securities may declare the unpaid principal of, and
any accrued and unpaid interest on, all the Securities to be due and
payable immediately; provided, that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to an
Issuer or any Subsidiary Guarantor, all outstanding Securities shall become
due and payable immediately without further action or notice.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory
to it before it enforces the Indenture or the Securities. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any
continuing default (except a default in payment of principal or interest)
if it determines that withholding notice is in their interests. The
Issuers and each Subsidiary Guarantor must furnish an annual compliance
certificate to the Trustee.
14. Trustee Dealings with the Issuers. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Issuers, the Subsidiary
Guarantors or any Affiliate of the Issuers or the Subsidiary Guarantors,
and may otherwise deal with the Issuers, the Subsidiary Guarantors and
their respective Affiliates as if it were not the Trustee.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuers and their Restricted Subsidiaries
to, among other things, incur additional Indebtedness, make payments in
respect of its Capital Stock or certain Indebtedness, enter into
transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries, merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and
exceptions provided for in the Indenture. The Issuers and each Subsidiary
Guarantor must annually report to the Trustee on compliance with such
limitations.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Subsidiary Guarantee. Each Subsidiary Guarantor has jointly
and severally irrevocably and unconditionally guaranteed the payment of
principal, premium, if any, and interest (including interest on overdue
principal and overdue interest, if lawful) on the Securities; provided,
however, each Subsidiary Guarantor that makes a payment or distribution
under a Subsidiary Guarantee shall be entitled to a
EXHIBIT A
Page 14
contribution from each other Subsidiary Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Subsidiary Guarantor.
18. Defeasance. Subject to certain conditions provided for in
the Indenture, the Issuers at any time may terminate some or all of their
obligations under the Securities and the Indenture if the Issuers deposit
with the Trustee money or U.S. Government Obligations for the payment of
principal, premium (if any) and interest on the Securities to redemption or
maturity, as the case may be.
19. Governing Law. The Laws of the State of New York shall
govern this Security and the Indenture, without regard to principles of
conflict of laws.
20. Abbreviations. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuers
have caused CUSIP numbers to be printed on the Securities and has directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience
to Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Issuers will furnish to any Securityholder upon written
request and without charge a copy of the Indenture. Request may be made
to:
Brill Media Company, LLC
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47708
Attn: Alan R. Brill
EXHIBIT A
Page 15
FORM OF NOTATION ON SECURITY
RELATING TO SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor Person under the Indenture) (i) have jointly and
severally irrevocably and unconditionally guaranteed as a primary obligor and
not a surety (such guarantee by each Subsidiary Guarantor being referred to
herein as the "Subsidiary Guarantee"), (a) the due and punctual payment of
the principal, premium, if any, and interest on the Securities, whether at
Stated Maturity or interest payment date, by acceleration, call for
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest, if any, on the Securities, to the extent
lawful, (c) the due and punctual performance of all other monetary
Obligations of the Issuers under the Indenture and the Securities to the
Securityholders or the Trustee, all in accordance with the terms set forth in
Article 10 of the Indenture and (d) in case of any extension of time of
payment or renewal of any Securities or any such Obligations, the same will
be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at Stated Maturity by acceleration or
otherwise and (ii) have agreed to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any
Securityholder in enforcing any rights under this Subsidiary Guarantee.
The Obligations of each Subsidiary Guarantor to the Securityholders
of Securities and to the Trustee pursuant to this Subsidiary Guarantee and
the Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to such Indenture for the precise terms of this
Subsidiary Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of any Subsidiary Guarantor shall have any liability under
this Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
This is a continuing Subsidiary Guarantee and, except as otherwise
expressly provided for in Section 10.06 of the Indenture, shall remain in
full force and effect and shall be binding upon the Subsidiary Guarantor and
its successors and assigns until full and final payment of all of the
Issuers' Obligations under the Securities and the Indenture and shall inure
to the benefit of the successors and assigns of the Trustee and the
Securityholders and, in the event of any transfer or assignment of rights by
any Securityholder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to
EXHIBIT A
Page 16
the terms and conditions hereof. This is a Subsidiary Guarantee of payment
and not of collectability.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Subsidiary Guarantors:
BMC HOLDINGS, LLC, a Virginia Limited
Liability Company
BY: BRILL MEDIA COMPANY, LLC, its
Manager
BY: BRILL MEDIA MANAGEMENT, INC., its
Manager
By:___________________________________
Name: Alan R. Brill
Title: President
READING RADIO, INC., a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT A
Page 17
TRI-STATE BROADCASTING, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
NORTHERN COLORADO RADIO, a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
NCR II, INC., a Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MISSOURI
BROADCASTING, INC., a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CMB II, INC.
By:___________________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT A
Page 18
NORTHLAND BROADCASTING, LLC,
a Virginia Limited Liability Company
By: NORTHLAND HOLDINGS, LLC,
a Virginia Limited Liability
Company, its Manager
By: BMC HOLDINGS, LLC,
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA COMPANY, LLC
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation, its
Manager
By:___________________________________
Name: Alan R. Brill
Title: President
NB II, INC., a Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN NEWSPAPERS, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT A
Page 19
CADILLAC NEWSPAPERS, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CMN ASSOCIATED PUBLICATIONS,
INC. a Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION
CO., L.P.
By: CENTRAL MICHIGAN
DISTRIBUTION CO., INC. its General
Partner
By:___________________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION
CO., INC., a Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT A
Page 20
GLADWIN NEWSPAPERS, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
GRAPH ADS PRINTING, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
MIDLAND BUYER'S GUIDE, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
ST. JOHNS NEWSPAPERS, INC., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: Vice President
HURON P.S. LLC, a Virginia Limited
Liability Company
By: HURON HOLDINGS, LLC, a
Virginia Limited Liability Company,
its Manager
EXHIBIT A
Page 21
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company,
its Manager
By: BRILL MEDIA COMPANY, LLC,
its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation, its
Manager
By:___________________________________
Name: Alan R. Brill
Title: President
HURON NEWSPAPERS, LLC, a Virginia
Limited Liability Company
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation, its
Manager
By:___________________________________
Name: Alan R. Brill
Title: President
EXHIBIT A
Page 22
HURON HOLDINGS, LLC, a Virginia
Limited Liability Company
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation, its Manager
By:___________________________________
Name: Alan R. Brill
Title: President
NORTHERN COLORADO HOLDINGS, LLC
By: BMC HOLDINGS, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT, INC. a
Virginia Corporation, its Manager
By:___________________________________
Alan R. Brill, President
NCR III, LLC, a Virginia Limited
Liability Company
EXHIBIT A
Page 23
By: NCH II, LLC, a Virginia Limited
Liability Company, its Manager
By: BMC Holdings, LLC, a Virginia
Limited Liability Company, its
Manager
By: Brill Media Company, LLC, a
Virginia Limited Liability Company,
its Manager
By: Brill Media Management, Inc., a
Virginia Corporation
By:___________________________________
Name: Alan R. Brill
Title: President
NCH II, LLC, a Virginia Limited
Liability Company
By: BMC Holdings, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation, its Manager
By:___________________________________
Name: Alan R. Brill
Title: President
NORTHLAND HOLDINGS, LLC, a Virginia
Limited Liability Company
By: BMC Holdings, LLC, a Virginia
Limited Liability Company, its
Manager
EXHIBIT A
Page 24
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation, its Manager
By:___________________________________
Name: Alan R. Brill
Title: President
CMN HOLDING, INC., a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: President
BRILL RADIO INC., a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: President
BRILL NEWSPAPERS, INC., a Virginia
Corporation
By:___________________________________
Name: Alan R. Brill
Title: President
EXHIBIT A
Page 25
EXHIBIT A
Page 26
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to
- ------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------
EXHIBIT A
Page 27
agent to transfer this Security on the books of the Issuers. The agent
may substitute another to act for him.
Date:__________________
Your Signature:_______________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
- ------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements will include membership or participation in the
Securities Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
EXHIBIT A
Page 28
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering resales
of this Security (which effectiveness shall not have been suspended or
terminated at the date of the transfer) and (ii) December 30, 1999, the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this Security is
being transferred:
Check One
---------
(1) ___ to an Issuer or a Subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) ___ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that has furnished to the Trustee a
signed letter containing certain representations and
agreements (the form of which letter can be obtained
from the Trustee); or
(4) ___ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) ___ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act; or
(6) ___ pursuant to an effective registration statement
under the Securities Act; or
(7) ___ pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered Securityholder thereof; provided that if box (3),
(4), (5) or (7) is checked, the Issuers or the Trustee may require, prior to
registering any such transfer of the Securities, in its sole discretion, such
legal opinions, certifications (including an investment letter in the case of
box (3) or (4)) and other information as the Trustee or an Issuer has
reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. If none of the foregoing boxes is
checked, the Trustee or Registrar shall not be obligated to register this
EXHIBIT A
Page 29
Security in the name of any Person other than the Securityholder hereof
unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.17 of the Indenture shall have been satisfied.
Dated:________________ Signed: _________________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:_______________________________________________________
- -------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements will include membership or participation in the
Securities Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _________________________________________
NOTICE: To be executed by an
executive officer
EXHIBIT A
Page 30
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Issuers pursuant to Section 4.10 or Section 4.14 of the
Indenture check the appropriate box:
/ / Section 4.10 / / Section 4.14
If you want to have only part of the Security purchased by the
Issuers pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
$__________________________________
Date: ______________________________
Your Signature:___________________________________
(Sign exactly as your name appears on the face of
this Security)
Signature Guarantee:
- ---------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements will include membership or participation in the
Securities Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
EXHIBIT B
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY
THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR THEIR AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.(*)
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE.(*)
_____________________________
(*) To be included in the Global Note only.
EXHIBIT B
Page 2
THIS SECURITY WILL BE CONSIDERED TO HAVE BEEN ISSUED ON DECEMBER 31, 1997
WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET.SEQ. OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE
ISSUE PRICE, AMOUNT OF OID PER $1,000 OF PRINCIPAL AMOUNT AND YIELD TO
MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE CHIEF FINANCIAL
OFFICER OF BRILL MEDIA COMPANY, LLC AT 812-423-6200 OR AT THE ADDRESS SET
FORTH ON THE REVERSE OF THIS SECURITY.
EXHIBIT B
Page 3
CUSIP No:
(Front of Security)
No. 1 $___________
BRILL MEDIA COMPANY, LLC
BRILL MEDIA MANAGEMENT, INC.
12% Senior Note dues 2007, Series B
BRILL MEDIA COMPANY, LLC, a Virginia limited liability company and BRILL
MEDIA MANAGEMENT, INC., a Virginia corporation, jointly and severally,
promise to pay to ________________________________________, or its registered
assigns, the principal sum of $____________,
[For Global Exchange Notes add:, as such amount may be increased or decreased
on the records of the Trustee,] on December 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing June 15, 1998.
Interest Record Dates: June 1 and December 1 (whether or not a Business Day).
Additional provisions of this Security are set forth on the other side of
this Security.
Dated:
BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company
By: BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation, its
Manager
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
Name:
Title:
EXHIBIT B
Page 4
BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By:_____________________________
Authorized Officer
EXHIBIT B
Page 5
(Reverse of Security)
12% SENIOR NOTE DUE 2007, SERIES B
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. Brill Media Company, LLC, a Virginia limited
liability company ("BMC"), and Brill Media Management Inc., a Virginia
corporation (together with BMC, the "Issuers"), jointly and severally,
promise to pay interest on the principal amount of this Security at the rate
and in the manner specified below. The Issuers shall pay, in cash, interest
on the principal amount of this Security at the rate per annum of 7 1/2% per
annum from the date of original issuance until December 15, 1999, and at a
rate of 12% per annum from and including December 15, 1999 until maturity.
The Issuers will pay interest semiannually in arrears on June 15 and December
15 of each year (each an "Interest Payment Date"), commencing June 15, 1998,
or if any such day is not a Business Day on the next succeeding Business Day.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent Interest
Payment Date to which interest has been paid or, if no interest has been paid,
from the date of the original issuance of the Securities. To the extent
lawful, the Issuers shall pay interest on overdue principal at the rate of 2%
per annum in excess of the then applicable interest rate on the Securities;
they shall pay interest on overdue installments of interest (without regard to
any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Issuers shall pay interest on this
Security (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the Interest Record Date
immediately preceding the Interest Payment Date, even if such Securities are
cancelled after such Interest Record Date and on or before such Interest
Payment Date. Securityholders must surrender Securities to a Paying Agent to
collect principal payments. The Issuers shall pay principal premium, if any,
and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Issuers may pay principal, premium, if any, and interest by its
check payable in such U.S. Legal Tender. The Issuers may deliver any such
interest payment to the Paying Agent or to a Securityholder at the
Securityholder's registered address.
EXHIBIT B
Page 6
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent,
Registrar or co-registrar without prior notice to any Securityholder. The
Issuers, or any Subsidiary Guarantor may act in any such capacity.
4. Indenture. The Issuers issued the Securities under an
Indenture, dated as of December 30, 1997 (the "Indenture"), among the
Issuers, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the TIA as in effect on the date the Indenture is
qualified, except as the Indenture otherwise provides. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
and the TIA for a statement of such terms. The terms of the Indenture shall
govern any inconsistencies between the Indenture and the Securities. The
Securities are senior Obligations of the Issuers limited to $105,000,000 in
aggregate principal amount.
5.(a) Optional Redemption. Except as indicated in the next
succeeding paragraph, Securities will not be redeemable at the option of the
Issuers prior to December 15, 2002. On and after such date, the Securities
will be redeemable, at the Issuers' option, in whole or in part, at any time
upon not less than 30 nor more than 60 days' prior notice mailed by
first-class mail to each Holder's registered address, at the following
redemption prices (expressed in percentages of principal amount), if redeemed
during the 12-month period commencing on December 15th of the years set forth
below, plus accrued and unpaid interest to the redemption date (subject to
the right of holders of record on the relevant record date to receive
interest due on the relevant Interest Payment Date):
Period
------
Redemption Price
----------------
2002...................... 106.00%
2003...................... 104.00%
2004...................... 102.00%
2005 and thereafter....... 100.00%
(b) Optional Redemption Upon Public Equity Offerings. In the event
of the sale by an Issuer prior to December 15, 2000 of its Capital Stock
(other than Disqualified Stock) in one or more Public Equity Offerings the
Net Cash Proceeds of which are at least $25.0 million in the aggregate, the
Issuers may, at their option, use the
EXHIBIT B
Page 7
Net Cash Proceeds of such sale or sales of Capital Stock to redeem up to 25%
of the aggregate principal amount of the aggregate principal amount of the
Securities at a redemption price, in the case of a redemption date prior to
December 15, 1999, equal to 112.0% of the Accreted Value thereof plus accrued
and unpaid interest thereon, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest
due on the relevant Interest Payment Date) and for any redemption date on or
after December 15, 1999, at a redemption price equal to 112.0% of the
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date); provided, however, that after any such redemption the aggregate
principal amount of the Securities outstanding must equal at least $79.0
million. In order to effect the foregoing redemption with the proceeds of
any such sale of Capital Stock, the Issuers shall make such redemption not
more than 90 days after the consummation of any such sale or sales of Capital
Stock.
6. Mandatory Redemption. The Securities are not subject to
mandatory redemption or sinking fund payments.
7. Repurchase at Option of Securityholder. (a) If there is a Change
of Control, each Holder of Securities will have the right to require the
Issuers to repurchase all or any part of such Holder's Securities, in the
case of a repurchase date prior to December 15, 1999, at a purchase price in
cash equal to 101% of the Accreted Value thereof plus any accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of
Securityholders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date) and for any repurchase date on or
after December 15, 1999, at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the
date of repurchase (subject to the right of Securityholders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date) (such applicable purchase price being hereinafter referred to as the
"Change of Control Purchase Price"). Within 30 days following any Change of
Control, the Issuers will mail a notice to each Securityholder stating (i)
that a Change of Control has occurred and that such Securityholder has the
right to require the Issuers to repurchase all or any part of such
Securityholder's Securities at a repurchase price in cash equal to the Change
of Control Purchase Price (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date); (ii) the circumstances and relevant facts regarding
such Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control); (iii) the repurchase date (which will be no earlier then
30 days nor later than 60 days from the
EXHIBIT B
Page 8
date such notice is mailed); and (iv) the procedures, determined by the
Issuers consistent with the Indenture, that a Securityholder must follow in
order to have its Securities repurchased. Securityholders that are subject to
an offer to repurchase may elect to have such Securities repurchased by
completing the form entitled "Option of Securityholder to Elect Purchase"
appearing below.
(b) If an Issuer or a Subsidiary consummates any Asset Disposition,
and when the aggregate amount of Net Available Cash from such an Asset
Disposition exceeds $10 million (except as otherwise set forth in Section
4.10 of the Indenture), the Issuers shall be required to offer to purchase
the maximum principal amount of Securities, that is in an integral multiple
of $1,000, that may be purchased out of the Net Available Cash, at 100% of
the Accreted Value thereof if such purchase date occurs prior to December 15,
1999, and at 100% of the principal amount thereof if such purchase date
occurs on or after December 15, 1999, in each case plus accrued and unpaid
interest, if any, to the date fixed for the closing of such offer in
accordance with the procedures set forth in the Indenture. If the aggregate
principal amount of Securities surrendered by Holders thereof exceeds the
amount of Net Available Cash, the Securities to be redeemed shall be selected
on a pro rata basis to the extent practicable. Securityholders that are the
subject of an offer to purchase will receive an Asset Disposition Offer from
the Issuers prior to any related purchase date and may elect to have such
Securities purchased by completing the form entitled "Option of
Securityholder to Elect Purchase" appearing below.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days before the redemption date to each Holder whose Securities are
to be redeemed at its registered address. Securities may be redeemed in part
but only in whole multiples of $1,000, unless all of the Securities held by a
Securityholder are to be redeemed. On and after the redemption date,
interest ceases to accrue on Securities or portions of them called for
redemption.
9. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Securityholder among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not
exchange or register the transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange or register the transfer
of any Securities during a period beginning on the opening of business on a
Business Day 15 days before the day of any selection of Securities to be
redeemed and ending on the
EXHIBIT B
Page 9
close of business on the day of selection or during the period between a
Interest Record Date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. Prior to due presentment to the Trustee
for registration of the transfer of this Security, the Trustee, any Agent and
the Issuers may deem and treat the Person in whose name this Security is
registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Security and for all
other purposes whatsoever, whether or not this Security is overdue, and
neither the Trustee, any Agent nor the Issuers shall be affected by notice to
the contrary. The registered Securityholder shall be treated as its owner
for all purposes.
11. Amendments and Waivers. Subject to certain exceptions provided
in the Indenture, the Issuers and the Trustee may amend or supplement the
Indenture or the Securities with the consent of the Holders of a majority in
principal amount of the then outstanding Securities, and, among other things,
any existing Default or Event of Default (except a payment default) may be
waived with the consent of the Holders of a majority in principal amount of
the then outstanding Securities. Under certain conditions, without the
consent of any Securityholder, the Issuers and the Trustee may amend the
Indenture or the Securities may be amended to, among other things, cure any
ambiguity, defect or inconsistency, to comply with the requirements of the
Commission in order to effect or maintain qualification of the Indenture under
the TIA or to make any change that does not adversely affect the rights of any
Securityholder.
12. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities may declare the unpaid principal of, and any
accrued and unpaid interest on, all the Securities to be due and payable
immediately; provided, that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to an Issuer or any
Subsidiary Guarantor, all outstanding Securities shall become due and payable
immediately without further action or notice. Securityholders may not enforce
the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Securities may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice is
in their interests. The Issuers and each Subsidiary Guarantor must furnish
an annual compliance certificate to the Trustee.
EXHIBIT B
Page 10
13. Trustee Dealings with the Issuers. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Issuers, the Subsidiary Guarantors
or any Affiliate of the Issuers or the Guarantors, and may otherwise deal with
the Issuers, the Subsidiary Guarantors and their respective Affiliates as if
it were not Trustee.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuers and their Restricted Subsidiaries
to, among other things, incur additional Indebtedness, make payments in
respect of its Capital Stock or certain Indebtedness, enter into transactions
with Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions provided for in the
Indenture. The Issuers and each Subsidiary Guarantor must annually report to
the Trustee on compliance with such limitations.
15. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. Subsidiary Guarantee. Each Subsidiary Guarantor has jointly
and severally irrevocably and unconditionally guaranteed the payment of
principal, premium, if any, and interest (including interest on overdue
principal and overdue interest, if lawful) on the Securities; provided,
however, each Subsidiary Guarantor that makes a payment or distribution under
a Subsidiary Guarantee shall be entitled to a contribution from each other
Subsidiary Guarantor in a pro rata amount based on the Adjusted Net Assets of
each Subsidiary Guarantor.
17. Defeasance. Subject to certain conditions provided for in the
Indenture, the Issuers at any time may terminate some or all of their
obligations under the Securities and the Indenture if the Issuers deposit
with the Trustee money or U.S. Government Obligations for the payment of
principal, premium (if any) and interest on the Securities to redemption or
maturity, as the case may be.
18. Governing Law. The Laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
19. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT
EXHIBIT B
Page 11
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Issuers will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Request may be made to:
Brill Media Company, LLC
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47708
Attn: Alan R. Brill
EXHIBIT B
Page 12
FORM OF NOTATION ON SECURITY
RELATING TO SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor person under the Indenture) (i) have jointly and
severally irrevocably and unconditionally guaranteed as a primary obligor and
not a surety, (such guarantee by each Subsidiary Guarantor being referred to
herein as the "Subsidiary Guarantee") (a) the due and punctual payment of the
principal, premium, if any, and interest on the Securities, whether at Stated
Maturity or interest payment date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue
principal of and interest, if any, on the Securities, to the extent lawful,
(c) the due and punctual performance of all other monetary Obligations of the
Issuers under the Indenture and the Securities to the Securityholders or the
Trustee, all in accordance with the terms set forth in Article 10 of the
Indenture and (d) in case of any extension of time of payment or renewal of
any Securities or any such Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity by acceleration or otherwise and (ii)
have agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Securityholder in enforcing
any rights under this Subsidiary Guarantee.
The Obligations of each Subsidiary Guarantor to the Securityholders
of Securities and to the Trustee pursuant to this Subsidiary Guarantee and
the Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to such Indenture for the precise terms of this
Subsidiary Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of any Subsidiary Guarantor shall have any liability under
this Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
This is a continuing Subsidiary Guarantee and, except as otherwise
expressly provided for in Section 10.06 of the Indenture, shall remain in
full force and effect and shall be binding upon the Subsidiary Guarantor and
its successors and assigns until full and final payment of all of the
Issuers' Obligations under the Securities and the Indenture and shall inure
to the benefit of the successors and assigns of the Trustee and the
Securityholders and, in the event of any transfer or assignment of rights by
any Securityholder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to
EXHIBIT B
Page 13
the terms and conditions hereof. This is a Subsidiary Guarantee of payment
and not of collectability.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN
BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Subsidiary Guarantors:
BMC HOLDINGS, LLC, a Virginia
Limited Liability Company
BY: BRILL MEDIA COMPANY, LLC,
its Manager
BY: BRILL MEDIA MANAGEMENT, INC.,
its Manager
By:____________________________
Name: Alan R. Brill
Title: President
READING RADIO, INC., a Virginia
Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT B
Page 14
TRI-STATE BROADCASTING, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
NORTHERN COLORADO RADIO,
INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
NCR II, INC., a Virginia
Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MISSOURI
BROADCASTING, INC., a Virginia
Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
CMB II, INC.
By:____________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT B
Page 15
NORTHLAND BROADCASTING, LLC, a
Virginia Limited Liability Company
By: NORTHLAND HOLDINGS, LLC,
a Virginia Limited Liability
Company, its Manager
By: BMC HOLDINGS, LLC,
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA COMPANY, LLC
a Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation
its Manager
By:____________________________
Name: Alan R. Brill
Title: President
NB II, INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN NEWSPAPERS,
INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT B
Page 16
CADILLAC NEWSPAPERS, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
CMN ASSOCIATED PUBLICATIONS,
INC. a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION
CO., L.P.
By: CENTRAL MICHIGAN
DISTRIBUTION CO., INC. its General
Partner
By:____________________________
Name: Alan R. Brill
Title: Vice President
CENTRAL MICHIGAN DISTRIBUTION
CO., INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT B
Page 17
GLADWIN NEWSPAPERS, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
GRAPH ADS PRINTING, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
MIDLAND BUYER'S GUIDE, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
ST. JOHNS NEWSPAPERS, INC., a
Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: Vice President
HURON P.S. LLC, a Virginia Limited
Liability Company
By: HURON HOLDINGS, LLC, a
Virginia Limited Liability Company,
its Manager
EXHIBIT B
Page 18
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company,
its Manager
By: BRILL MEDIA COMPANY, LLC,
its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation,
its Manager
By:____________________________
Name: Alan R. Brill
Title: President
HURON NEWSPAPERS, LLC, a Virginia
Limited Liability Company
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation, its
Manager
By:____________________________
Name: Alan R. Brill
Title: President
EXHIBIT B
Page 19
HURON HOLDINGS, LLC, a Virginia
Limited Liability Company
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability
Company, its Manager
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia Corporation,
its Manager
By:____________________________
Name: Alan R. Brill
Title: President
NORTHERN COLORADO HOLDINGS,
LLC
By: BMC HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company,
its Manager
By: BRILL MEDIA MANAGEMENT, INC. a
Virginia Corporation, its Manager
By:____________________________
Alan R. Brill, President
NCR III, LLC, a Virginia Limited Liability
Company
EXHIBIT B
Page 20
By: NCH II, LLC, a Virginia Limited Liability
Company, its Manager
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
By: Brill Media Company, LLC, a Virginia
Limited Liability Company, its Manager
By: Brill Media Management, Inc., a Virginia
Corporation
By:____________________________
Name: Alan R. Brill
Title: President
NCH II, LLC, a Virginia Limited Liability
Company
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company, its
Manager
By: BRILL MEDIA MANAGEMENT, INC.,
a Virginia Corporation, its Manager
By:____________________________
Name: Alan R. Brill
Title: President
NORTHLAND HOLDINGS, LLC, a Virginia
Limited Liability Company
By: BMC Holdings, LLC, a Virginia Limited
Liability Company, its Manager
EXHIBIT B
Page 21
By: BRILL MEDIA COMPANY, LLC, a
Virginia Limited Liability Company, its
Manager
By: BRILL MEDIA MANAGEMENT, INC.,
a Virginia Corporation, its Manager
By:____________________________
Name: Alan R. Brill
Title: President
CMN HOLDING, INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: President
BRILL RADIO INC., a Virginia Corporation
By:____________________________
Name: Alan R. Brill
Title: President
BRILL NEWSPAPERS, INC., a Virginia
Corporation
By:____________________________
Name: Alan R. Brill
Title: President
EXHIBIT B
Page 22
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
EXHIBIT B
Page 23
agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
Date: ___________________
Your Signature: _____________________________________
(Sign exactly as your name appears on the face of this
Security)
Signature Guarantee:
__________________________
(Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements will include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
EXHIBIT B
Page 24
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Issuers pursuant to Section 4.10 or Section 4.14 of the
Indenture check the appropriate box:
/ / Section 4.10 / / Section 4.14
If you want to have only part of the Security purchased by the
Issuers pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
$______________________
Date:________________________
Your Signature:________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
__________________________
(Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements will include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Corporate Trust Administration
Re: Brill Media Company, LLC and
Brill Media Management, Inc.
12% Senior Notes due 2007
Ladies and Gentlemen:
In connection with our proposed purchase of 12% Senior Notes due
2007 (the "Securities") of Brill Media Company, LLC ("Brill") and Brill Media
Management, Inc. (together with BMC, the "Issuers"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated December 23, 1997 relating to the Securities
and such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agreed to the
matters stated on pages (ii) and (iii) of the Offering Memorandum and in the
section entitled "Notes Transfer Restrictions" of the Offering Memorandum
including the restrictions on duplication and circulation of the Offering
Memorandum.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Securities (as described in the Offering Memorandum) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
EXHIBIT C
Page 2
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell or otherwise transfer any
Securities prior to the date which is two years after the original issuance
of the Securities, we will do so only (i) to an Issuer or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer)
to the Trustee (as defined in the Indenture relating to the Securities), a
signed letter containing certain representations and agreements relating to
the restrictions on transfer of the Securities, (iv) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
(v) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities are restricted as
stated herein.
4. We are not acquiring the Securities for or on behalf of, and
will not transfer the Securities to, any pension or welfare plan (as defined
in Section 3 of the Employee Retirement Income Security Act of 1974), except
as permitted in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Securities, we
will be required to furnish to the Trustee and the Issuers such
certification, legal opinions and other information as the Trustee and the
Issuers may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
EXHIBIT C
Page 3
7. We are acquiring the Securities purchased by us for
our account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Issuers are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
Very truly yours,
By:
-------------------------------
Name:
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_______________,______
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Corporate Trust Administration
Re: Brill Media Company, LLC and
Brill Media Management, Inc.
(collectively the "Issuers") 12% Senior
Notes due 2007 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_____________
aggregate principal amount of the Securities, we confirm that such
sale has been effected pursuant to and in accordance with
Regulation S under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person
in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any
person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any
Person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
EXHIBIT D
Page 2
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
You and the Issuers are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth
in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------
Authorized Signature