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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
$3,000,000 aggregate principal amount
APPRECIATION NOTES DUE 2007, SERIES A
APPRECIATION NOTES DUE 2007, SERIES B
--------------------------
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APPRECIATION NOTE INDENTURE
Dated as of December 30, 1997
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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).................................. 12.03
(c).................................. 12.03
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)............................... 12.05
(c)(2)............................... 12.05
(c)(3)............................... N.A.
(d).................................. N.A.
(e).................................. 12.05
(f).................................. N.A.
315(a).................................. 7.01
(b).................................. 7.05
(c).................................. 7.01
(d).................................. 6.03;7.01
(e).................................. 6.09
316(a).................................. 1.01
(a)(1)(A)............................ 6.02
(a)(1)(B)............................ 6.02
(a)(2)............................... N.A.
(b).................................. 6.05
(c).................................. 2.19
317(a)(1)............................... 6.06
(a)(2)............................... 6.07
(b).................................. 2.04
318(a).................................. 12.01
(b).................................. N.A.
(c).................................. 12.01
- -------------------
*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................................. 13
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.................................... 14
SECTION 1.04. RULES OF CONSTRUCTION............................. 14
ARTICLE 2 THE SECURITIES.............................................. 15
SECTION 2.01. FORM AND DATING................................... 15
SECTION 2.02. EXECUTION AND AUTHENTICATION...................... 16
SECTION 2.03. REGISTRAR AND PAYING AGENT........................ 16
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST............... 17
SECTION 2.05. SECURITYHOLDER LISTS.............................. 17
SECTION 2.06. TRANSFER AND EXCHANGE............................. 18
SECTION 2.07. REPLACEMENT SECURITIES............................ 18
SECTION 2.08. OUTSTANDING SECURITIES............................ 19
SECTION 2.09. TREASURY SECURITIES............................... 19
SECTION 2.10. TEMPORARY SECURITIES.............................. 19
SECTION 2.11. CANCELLATION...................................... 20
SECTION 2.12. DEFAULTED INTEREST................................ 20
SECTION 2.13. CUSIP NUMBER...................................... 20
SECTION 2.14. DEPOSIT OF MONEYS................................. 21
SECTION 2.15. RESTRICTIVE LEGENDS............................... 21
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY......... 23
SECTION 2.17. SPECIAL TRANSFER PROVISIONS....................... 25
SECTION 2.18. PERSONS DEEMED OWNERS............................. 27
ARTICLE 3 REDEMPTION.................................................. 27
SECTION 3.01. NOTICES TO TRUSTEE................................ 27
SECTION 3.02. [RESERVED]........................................ 27
SECTION 3.03. NOTICE OF OPTIONAL REDEMPTION BY THE ISSUERS...... 27
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.................... 28
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE....................... 28
SECTION 3.06. SECURITIES REDEEMED IN PART....................... 29
SECTION 3.07. REDEMPTION UPON MATURITY.......................... 29
SECTION 3.08. OPTIONAL REDEMPTION............................... 29
SECTION 3.09. MANDATORY REDEMPTION AT THE OPTION OF THE
SECURITYHOLDERS UPON THE OCCURRENCE OF
CERTAIN EVENTS................................... 30
SECTION 3.10. MANDATORY REDEMPTION AT THE OPTION OF
THE SECURITYHOLDERS ON SPECIFIED DATES........... 31
ARTICLE 4 COVENANTS................................................... 32
SECTION 4.01. PAYMENT OF SECURITIES............................. 32
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY................... 32
SECTION 4.03. SEC REPORTS....................................... 33
SECTION 4.04. COMPLIANCE CERTIFICATES........................... 34
SECTION 4.05. TAXES............................................. 35
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.................... 35
SECTION 4.07. CORPORATE EXISTENCE............................... 35
SECTION 4.09. FURTHER INSTRUMENTS AND ACTS...................... 36
ARTICLE 5 SUCCESSORS.................................................. 36
SECTION 5.01. LIMITATIONS ON MERGER, CONSOLIDATION
OR SALE OF ASSETS................................ 36
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED................. 37
ARTICLE 6 REMEDIES.................................................... 37
SECTION 6.01. REMEDIES.......................................... 37
SECTION 6.02. WAIVER OF PAST DEFAULTS........................... 37
SECTION 6.03. CONTROL BY MAJORITY............................... 38
SECTION 6.04. LIMITATION ON SUITS............................... 38
SECTION 6.05. RIGHTS OF SECURITYHOLDERS TO RECEIVE PAYMENT...... 39
SECTION 6.06. COLLECTION SUIT BY TRUSTEE........................ 39
SECTION 6.07. TRUSTEE MAY FILE PROOFS OF CLAIM.................. 39
SECTION 6.08. PRIORITIES........................................ 40
SECTION 6.09. UNDERTAKING FOR COSTS............................. 40
ARTICLE 7 TRUSTEE..................................................... 41
SECTION 7.01. DUTIES OF TRUSTEE................................. 41
SECTION 7.02. RIGHTS OF TRUSTEE................................. 42
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE...................... 43
SECTION 7.04. TRUSTEE'S DISCLAIMER.............................. 43
SECTION 7.05. NOTICE OF DEFAULTS................................ 43
SECTION 7.06. REPORTS BY TRUSTEE TO SECURITYHOLDERS............. 44
SECTION 7.07. COMPENSATION AND INDEMNITY........................ 44
SECTION 7.08. REPLACEMENT OF TRUSTEE............................ 45
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.................. 46
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION..................... 47
(ii)
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST THE ISSUERS.............................. 47
ARTICLE 8 DISCHARGE OF INDENTURE...................................... 47
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES.............. 47
SECTION 8.02. APPLICATION OF TRUST MONEY........................ 48
SECTION 8.03. REPAYMENT TO THE ISSUERS.......................... 48
SECTION 8.04. REINSTATEMENT..................................... 48
ARTICLE 9 AMENDMENTS.................................................. 49
SECTION 9.01. WITHOUT CONSENT OF SECURITYHOLDERS................ 49
SECTION 9.02. WITH CONSENT OF SECURITYHOLDERS................... 50
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT............... 52
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS................. 52
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES............. 52
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC................... 53
ARTICLE 10 SUBORDINATION.......................................... 53
SECTION 10.01. AGREEMENT TO SUBORDINATE.......................... 53
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY.............. 53
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS OR
GUARANTOR SENIOR INDEBTEDNESS.................... 54
SECTION 10.04. WHEN DISTRIBUTION MUST BE PAID OVER............... 54
SECTION 10.05. SUBROGATION....................................... 54
SECTION 10.06. RELATIVE RIGHTS................................... 55
SECTION 10.07. SUBORDINATION MAY NOT BE IMPAIREDBY
ISSUERS OR THE SUBSIDIARY GUARANTORS............. 55
SECTION 10.08. RIGHTS OF TRUSTEE AND PAYING AGENT................ 55
SECTION 10.09. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.......... 56
SECTION 10.10. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT....... 56
SECTION 10.11. TRUSTEE ENTITLED TO RELY.......................... 56
SECTION 10.12. TRUSTEE TO EFFECTUATE SUBORDINATION............... 57
SECTION 10.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS AND SUBSIDIARY GUARANTOR
SENIOR INDEBTEDNESS.............................. 57
SECTION 10.14. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS AND
GUARANTOR SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS....................................... 57
ARTICLE 11 SUBSIDIARY GUARANTEE OF SECURITIES..................... 58
SECTION 11.01. SUBSIDIARY GUARANTEE.............................. 58
(iii)
SECTION 11.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.... 59
SECTION 11.03. SUBSIDIARY GUARANTEE UNCONDITIONAL, ETC........... 59
SECTION 11.04. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.... 60
SECTION 11.05. CONTRIBUTION...................................... 61
SECTION 11.06. RELEASE........................................... 61
SECTION 11.07. ADDITIONAL SUBSIDIARY GUARANTORS.................. 61
SECTION 11.08. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS.................................... 62
SECTION 11.09. SUCCESSORS AND ASSIGNS............................ 63
SECTION 11.10. WAIVER OF STAY, EXTENSION OR USURY LAWS........... 63
ARTICLE 12 MISCELLANEOUS.......................................... 63
SECTION 12.01. TRUST INDENTURE ACT CONTROLS...................... 63
SECTION 12.02. NOTICES........................................... 64
SECTION 12.03. COMMUNICATION BY SECURITYHOLDERS WITH OTHER
SECURITYHOLDERS.................................. 65
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT........................................ 65
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..... 65
SECTION 12.06. RULES BY TRUSTEE AND AGENTS....................... 66
SECTION 12.07. LEGAL HOLIDAYS.................................... 66
SECTION 12.08. NO RECOURSE AGAINST OTHERS........................ 66
SECTION 12.09. DUPLICATE ORIGINALS............................... 66
SECTION 12.10. GOVERNING LAW..................................... 67
SECTION 12.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..... 67
SECTION 12.12. SUCCESSORS........................................ 67
SECTION 12.13. SEVERABILITY...................................... 67
SECTION 12.14. COUNTERPART ORIGINALS............................. 67
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.................. 67
(iv)
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 REGULATION S
SCHEDULE 1 SUBSIDIARY GUARANTORS
(v)
APPRECIATION NOTE 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 Appreciation Notes due 2007, Series A (the
"Initial Securities") and Appreciation 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.
"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 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 Registration Rights Agreement"
means the registration rights agreement relating to the
Securities and 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.
"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).
"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.
"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
2
long as it is a limited liability company or a partnership, of
Media, 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.
"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
3
(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 Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any
period, the total interest expense of the Issuers and their
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 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 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 and (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 less (a) to the extent
included in such interest expense, the amortization of
capitalized debt issuance costs and (b) interest income.
"Consolidated Net Income" means, for any period,
the consolidated net income (loss) of the Issuers and their
respective consolidated Subsidiaries determined in
accordance with GAAP.
"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 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.
"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.
4
"Default" means any failure by an Issuer or a
Subsidiary Guarantor to comply with its covenants hereunder.
"Depository" means The Depository Trust Company,
its nominees and successors.
"Designated Senior Indebtedness" means any Senior
Indebtedness in the case of the Issuers, or Guarantor Senior
Indebtedness in the case of a Subsidiary Guarantor which, at
the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of
determination, the holders thereof, are committed to lend up
to, at least $5 million and is specifically designated by an
Issuer or such Subsidiary Guarantor in the instrument
evidencing or governing such Senior Indebtedness or
Guarantor Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture; provided,
however, that the Indebtedness of the Issuers under the
Notes, and the Subsidiary Guarantee of each Subsidiary
Guarantor under its Guarantee of the Notes, shall always
constitute Designated Senior Indebtedness.
"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, (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 Appreciation Notes Registration Rights
Agreement.
"Exchange Securities" has the meaning set forth in
the preamble to this Indenture.
5
"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 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 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.
"Guarantor Senior Indebtedness" means, with
respect to a Subsidiary Guarantor, whether outstanding on
the Issue Date or thereafter issued, all Guarantees by such
Subsidiary Guarantor of Senior Indebtedness of an Issuer and
all other Indebtedness of such Subsidiary Guarantor,
including interest and fees thereon, unless, in the
instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is expressly provided that
the obligations of such Subsidiary Guarantor in respect of
such Indebtedness are not superior in right of payment to
the obligations of such Subsidiary Guarantor under the
Guarantee of the Securities; provided, however, that
Guarantor Senior Indebtedness shall not include (1) any
obligations of such Subsidiary Guarantor to the Issuers or
any other Subsidiary of the Issuers or (2) any Indebtedness,
Guarantee or obligation of such Subsidiary Guarantor that is
expressly subordinate or junior in right of payment to any
other Indebtedness, Guarantee or obligation of such
Subsidiary Guarantor, including any Guarantor Subordinated
Indebtedness of such Subsidiary Guarantor.
6
"Guarantor Subordinated Indebtedness" means, with
respect to a Subsidiary Guarantor, the obligations of such
Subsidiary Guarantor under the Guarantee of the Securities
and any other Indebtedness of such Subsidiary Guarantor that
specifically provides that such Indebtedness is to rank pari
passu in right of payment with the obligations of such
Subsidiary Guarantor under the Guarantee of the Securities.
"Incur" means issue, assume, guarantee, incur or
otherwise become liable for.
"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 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 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, and (viii) to the
extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate
Agreements.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Initial Public Offering" means an offering or
offerings of Capital Stock of an Issuer under one or more
effective registration statements under the Securities Act
such that, after giving effect thereto, such offerings
result in aggregate cash proceeds being received by an
Issuer and the persons selling such Capital Stock of at
least $25 million before deduction of underwriter's
discounts and other expenses, as a result of such Capital
Stock is listed or admitted to trading on a national
securities exchange or quoted by NASDAQ.
"Initial Purchaser" means NatWest Capital Markets
Limited.
7
"Initial Securities" has the meaning set forth in
the preamble to this Indenture.
"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 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.
"Issue Date" means the date on which the Initial
Securities are originally issued.
"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.
"Managed Affiliate Notes" mean any promissory
notes of a Managed Affiliate, issued to an Issuer or a
Subsidiary.
"Maturity Date" means December 15, 2007.
"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.
"Moody's" means Moody's Investors Service, Inc.,
or its successors.
"Non-U.S. Person" means a Person who is not a U.S.
person, as defined in Regulation S of the Securities Act.
"Notes" means the 12% Senior Notes due 2007 issued
under the Senior Note Indenture.
8
"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 a
partnership, of Media, 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
an Issuer.
"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
12.04 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 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.
"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.
"Pro Rata Percentage" of a Security, means the
Specified Percentage of such Security divided by 5%.
"Qualified Institutional Buyer" or "QIB" shall
have the meaning specified in Rule 144A under the Securities
Act.
9
"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).
"Representative" means the trustee, agent or
representative (if any) for an issue of Senior Indebtedness.
"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 Security" has the meaning assigned to
such term in Rule 144(a)(3) under the Securities Act.
"Restricted Subsidiary" has the meaning assigned
to such term in the Senior Note Indenture as in effect from
time to time.
"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 Subsidiary transfers such property to a
Person and such Issuer or a Subsidiary of such Issuer leases
it from such Person.
"Sale of the Company" means (i) any sale, lease,
exchange or other transfer (in one transaction or in a
series of transactions) of all or substantially all of the
assets of an Issuer or an Issuer and its Subsidiaries on a
consolidated basis or (ii) 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 50% of the ordinary
voting power for the election of directors of an Issuer, or
any direct or indirect holding company thereof.
"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.
10
"Securityholder" or "Holder" means a registered
holder of one or more Securities.
"Senior Indebtedness" in the case of the
Securities means, whether outstanding on the Issue Date or
thereafter issued, all obligations under the Notes and all
other Indebtedness of the Issuers, or either one of the
Issuers, including interest and fees thereon, unless, in the
instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that the
obligations in respect of such Indebtedness are not superior
in right of payment to the Securities; provided, however,
that Senior Indebtedness will not include any obligation of
an Issuer to any Subsidiary or any Subordinated Obligations.
"Senior Note Indenture" means the Indenture, dated
as of the Issue Date, among the Issuers, the Subsidiary
Guarantors and the United States Trust Company of New York
relating to the Notes.
"Specified Event Purchase Price" means for a
Security a redemption price equal to (i) in the case of a
redemption with respect to an Initial Public Offering, the
price at which Capital Stock is sold in such Initial Public
Offering (less underwriting discounts and commissions, if
any), which represent a percentage interest in BMC equal to
the Specified Percentage of such Security, (ii) in the case
of redemption with respect to a Sale of the Company as
defined in clause (i) of the definition thereof, the amount
equal to the Specified Percentage of such Security of the
sum of the aggregate fair market value of all consideration
received by the Issuers and their Subsidiaries, net of any
debt repaid therewith, net of ordinary and customary
transaction expenses of the related transfer and the fair
market value of the Issuers as determined after giving
effect to such sale, and (iii) in the case of a redemption
with respect to Sale of the Company defined in clause (ii)
of the definition thereof, the price at which Capital Stock
is sold in such Sale of the Company or in the transaction
which resulted in such Sale of the Company, which represent
a percentage interest in BMC equal to the Specified
Percentage of such Security, and (iv) in the case of a
redemption with respect to a liquidation of either Issuer,
an amount equal to the fair market value of the distribution
received by Capital Stock in an amount equal to the
Specified Percentage of such Security in connection with
such liquidation.
"Specified Percentage" of a Security means a
percentage equal to (i) 5% multiplied by (ii) a fraction the
numerator of which is the principal amount of such Security
and the denominator of which is $3,000,000.
"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 with respect to an
Issuer or any Subsidiary Guarantor, any Indebtedness of such
Issuer or such Subsidiary Guarantor, as the case may be
11
(whether outstanding on the Issue Date or thereafter
incurred) which is expressly subordinate or junior in right
of payment to the Securities or such Subsidiary Guarantor's
Guarantee of the Securities, as the case may be, in each
case 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 operates and executes a
supplemental indenture pursuant to Section 11.07.
"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.
"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.
"Value" of BMC on the Maturity Date means an
amount equal to 12 times Media Cashflow for the then most
recent four fiscal quarters for which financial statements
of BMC are available plus the cash and Cash Equivalents of
BMC and its Subsidiaries on the Maturity Date less the
aggregate amount of Indebtedness of BMC and its Subsidiaries
on a consolidated basis outstanding on the Maturity Date.
"Wholly-Owned Subsidiary" means a 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.
12
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"actual knowledge"................................... 7.02
"Agent Members"...................................... 2.16
"Funding Guarantor"................................. 11.05
"Global Appreciation Note"........................... 2.01
"Guaranteed Obligations"............................ 11.01
"Legal Holiday"..................................... 12.07
"Offshore Physical Securities"....................... 2.01
"Paying Agent"....................................... 2.03
"Physical Securities"................................ 2.01
"Private Placement Legend"........................... 2.15
"Registrar".......................................... 2.03
"Successor Company".................................. 5.01
"U.S. Physical Securities"........................... 2.01
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.
13
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.
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 Appreciation
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 Appreciation Note may from
time to
14
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".
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 11.02.
(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 $3,000,000 and an aggregate Specified
Percentage not to exceed 5% and (ii) Exchange Securities
from time to time for issue only in exchange for a like
principal amount and Specified Percentage of Initial
Securities, in each case upon receipt of a written order of
the Issuers. Securities may only be issued in denominations
of $28.571428 or integral multiples thereof, provided,
however, that fractions of a cent shall be rounded down to
the nearest whole cent.
(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.
15
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 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 an 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.
16
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 any date on
which payment is due on the Securities 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).
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 or
(ii) to register the transfer of or exchange any Security so
selected for redemption.
(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 Appreciation Note
shall, by acceptance of such Global Appreciation Note, agree
that transfers of beneficial interests in such Global
Appreciation Note may be effected only through a book entry
system maintained by the Holder of such Global Appreciation
Note (or its agent), and that ownership of a beneficial
interest in the Global Appreciation Note shall be required
to be reflected in a book entry.
17
SECTION 2.07. REPLACEMENT SECURITIES.
(a) If any mutilated Security is surrendered to the
Trustee, or an Issuer and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any
Security, the 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.
18
SECTION 2.10. TEMPORARY SECURITIES.
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
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
19
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
date on which payments are due under the Securities 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 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 date or Maturity Date, as the case may be.
SECTION 2.15. RESTRICTIVE LEGENDS.
Each Global Appreciation 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 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
20
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 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
21
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Appreciation 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 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.
22
(a) The Global Appreciation 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 Appreciation Note held on their
behalf by the Depository, or the Trustee as its custodian,
or under the Global Appreciation 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 Appreciation 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 Appreciation 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 Appreciation
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 Appreciation Note if (i) the Depository notifies the
Issuers that it is unwilling or unable to continue as
Depository for the Global Appreciation Note and a successor
depository is not appointed by the Issuers within 90 days of
such notice or (ii) a default has occurred and is continuing
and the Registrar has received a written request from the
Depository or the Trustee to issue Physical Securities.
(c) In connection with any registration of
transfer or exchange of a portion of the beneficial interest
in the Global Appreciation 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 Appreciation
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 Appreciation Note to
beneficial owners pursuant to paragraph (b), the Global
Appreciation 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 Appreciation 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 Appreciation Note pursuant to paragraph (b) or
(c) above
23
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 Appreciation 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 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
Appreciation 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, whereupon (a) the
Registrar shall reflect on its books and records
the date and (if the transfer does not involve a
transfer of outstanding Physical Securities) a
decrease in the principal amount of the Global
Appreciation Note in an amount equal to the
principal amount of the beneficial interest in the
Global Appreciation Note to be transferred, and
(b) the Issuers shall execute and the Trustee
shall authenticate and deliver one or more
Physical Securities of like tenor and amount.
24
(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
(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 Appreciation 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 Appreciation 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
25
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 an Issuer, any
Registrar or any co-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. TAX CONSIDERATIONS AND ALLOCATION OF PURCHASE
PRICE.
BMC agrees, and each holder of a Security by acceptance of a
Security agrees, to treat the Securities as indebtedness for all U.S.
federal, state and local income tax purposes. Based on their estimate of
the relative fair market values of the Notes and the Securities, the
Issuers agree that of the initial purchase price of $922.0 for each
$1,000 principal amount of Securities, they shall treat for U.S. federal
income tax purposes $899.63 of such initial purchase price as allocable to
the Notes and $22.37 as allocable to the Securities.
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 3.08 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, and (iii) the redemption price.
26
(b) If the Issuers are required to make an offer
to redeem Securities pursuant to the provisions of Section
3.09 hereof, they shall furnish to the Trustee at least 30
days 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 redemption price and (iv)
further setting forth a statement to the effect that a
Specified Event has occurred and the conditions set forth in
Section 3.09 have been satisfied.
SECTION 3.02. [RESERVED].
SECTION 3.03. NOTICE OF OPTIONAL REDEMPTION BY THE ISSUERS
OR MATURITY.
(a) At least 30 days before a redemption pursuant to
Section 3.08, the Issuers shall mail a notice of redemption
by first class mail, postage prepaid to each Holder at the
last address for such Holder then shown on the registry
books.
The notice shall state that all Securities are to
be redeemed and shall further state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Paying
Agent;
(iv) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(v) 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;
(vi) the paragraph of the Securities and/or
Section of this Indenture pursuant to which the
Securities called for redemption are being redeemed.
(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.
27
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 or before
any date on which the Securities are being redeemed or
otherwise paid in full, the Issuers shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the
redemption price and other applicable payments due on all
Securities to be redeemed or otherwise paid in full. 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 and any other applicable payment
due on all Securities.
If any Security to be redeemed 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 of 17% per annum as 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
Issuer a new Security equal in principal amount and
Specified Percentage to the unredeemed portion of the
Security surrendered.
SECTION 3.07. REDEMPTION UPON MATURITY.
The Securities will mature on the Maturity Date.
Each Security will entitle the Holder thereof to receive on
the Maturity Date a cash payment of principal and interest
in the amount equal to (i) the principal amount thereof plus
(ii) the amount by which the Specified Percentage of such
Security of the Value of BMC on the Maturity Date exceeds
the principal amount of such Security. At least five
Business Days prior to the Maturity Date, the Issuers shall
deliver to the Trustee an Officers' Certificate, upon which
the Trustee may conclusively rely, certifying the amount to
be paid on each $28.571428 principal amount of the
Securities on the Maturity Date.
SECTION 3.08. OPTIONAL REDEMPTION.
28
(a) The Securities will not be redeemable at the option
of the Issuers prior to June 15, 1999. Thereafter, if an
Initial Public Offering has not occurred on or before a date
set forth below, the Securities will be redeemable, at the
Issuers' option, in whole but not in part, on such date, at
a redemption price for each Security equal to the Pro Rata
Percentage of such Security of the amount set forth below
opposite such redemption date (which amount, in each case,
represents payment in full of all principal and interest on
the Securities):
Date Amount
---- ------
June 15, 1999 $ 3.0 million
June 15, 2000 $ 8.3 million
June 15, 2001 $12.8 million
June 15, 2002 $18.0 million
June 15, 2003 $24.0 million
June 15, 2004 $31.0 million
June 15, 2005 $39.0 million
June 15, 2006 $48.0 million
June 15, 2007 $58.0 million
SECTION 3.09. MANDATORY REDEMPTION AT THE OPTION OF THE
SECURITYHOLDERS UPON THE OCCURRENCE OF CERTAIN EVENTS.
(a) Upon the occurrence of an Initial Public
Offering, a Sale of the Company or the liquidation of either
Issuer (each such event, a "Specified Event"), each Holder
shall have the right to require the Issuers to redeem all or
any part of such Holder's Securities at the relevant
Specified Event Purchase Price (which amount, in each case,
represents payment in full of all principal and interest on
such Securities) in accordance with this Section 3.09.
(b) Within 30 days following the occurrence of
any Specified Event, unless the Issuers have mailed a
redemption notice with respect to all the outstanding
Securities, the Issuers shall mail a notice to each Holder
with a copy to the Trustee stating:
29
(i) that a Specified Event has occurred and that
such Securityholder has the right to require the
Issuers to redeem such Securityholder's Securities at a
purchase price in cash equal to the Specified Event
Purchase Price (stating the Specified Event Purchase
Price for each $28.571428 principal amount of the
Securities);
(ii) the redemption date (which shall be no
earlier than 30 days nor later than 60 days from the
date such notice is mailed);
(iii) the name and address of the Paying
Agent; and
(iv) the procedures determined by the Issuers,
consistent with this Indenture, that a Securityholder
must follow in order to have its Securities redeemed.
(c) Securityholders electing to have a Security
redeemed will be required to surrender the Security, with
the form entitled "Option of Securityholder to Elect
Redemption" 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 redemption date. Securityholders
will be entitled to withdraw their election if the Trustee
or the Issuers receives not later than three Business Days
prior to the redemption 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 redemption by the Securityholder and a
statement that such Securityholder is withdrawing his
election to have such Security redeemed.
(d) On the redemption date, all Securities
redeemed by the Issuers under this Section 3.09 shall be
delivered by the Trustee for cancellation, and the Issuers
shall pay the redemption 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 redeem the Securities as a result of a Specified Event.
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
redeem the Securities as a result of a Specified Event, 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 3.10. MANDATORY REDEMPTION AT THE OPTION OF THE
SECURITYHOLDERS ON SPECIFIED DATES.
If an Initial Public Offering has not occurred on
or before a date set forth below, the Securityholders may
require the Issuers to redeem their Securities, in whole or
in part within 90 days of such date at a redemption price
for each Security equal to the Pro Rata Percentage
30
of such Security of the amount set forth below opposite such
date (which amount, in each case, represents payment in full of
all principal and interest thereon):
Date Amount
---- ------
June 30, 2003 $24.0 million
June 30, 2004 $20.0 million
June 30, 2005 $13.0 million
A Securityholder may exercise its rights to
require the redemption of the Securities held by such Holder
by delivering a notice to the Issuers (with a copy to the
Trustee in the manner set forth in Section 12.02) on or
before a date as set forth above stating that such Holder is
demanding that the Issuers redeem such Holder's Securities
and the portion of Securities to be redeemed. Upon receipt
of any such notice the Issuers shall redeem the Securities
for which such notice has been delivered by no later than
the 90th day following the relevant date. Within five
Business Days following the relevant date specified above,
the Issuers shall mail a notice to each Holder that has
elected to have all or a portion of its Securities redeemed
following such relevant date and to the Trustee stating (1)
the redemption date; (2) the aggregate principal amount of
the Securities that will be redeemed on the redemption date;
(3) the aggregate redemption price; (4) the name and address
of the Paying Agent; and (5) that Securities to be redeemed
must be surrendered to the Paying Agent to collect the
redemption price for such Securities.
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
payment, any money
31
(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 Code) on overdue principal and other amounts not
paid when due at a rate of 17% per annum to the extent
lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Code) 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
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
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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 shall
have occurred, describing all such Defaults 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 or 5 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
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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 Subsidiary Guarantor's
financial statements are not prepared on a consolidated basis
with the applicable Issuer's, such 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
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 (ii) any event
of default under any other mortgage, indenture or instrument
to which either Issuer or a Subsidiary Guarantor is a party,
an Officers' Certificate specifying such 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).
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.
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SECTION 4.07. 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 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 each Issuer and its 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 an 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 4.08. FUTURE GUARANTORS.
The Issuers shall cause each newly organized or
acquired Restricted Subsidiary to execute and deliver to the
Trustee pursuant to Section 11.07 (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.
SECTION 4.09. 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.
Neither 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
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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, the Successor Company shall have a
Consolidated Net Worth equal or greater to the
Consolidated Net Worth of the relevant Issuer
immediately prior to such transaction;
(iii) the Issuers 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
(iv) 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.
ARTICLE 6
REMEDIES
SECTION 6.01. REMEDIES.
(a) If a 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 as they become due and payable or
to enforce the performance of any provision of the
Securities or this Indenture, it being understood that a
Default shall not cause the acceleration of principal,
premium or interest on the Securities.
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(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 a Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the
Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.02. 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 and its consequences, except a continuing Default in
the payment of the principal, premium, if any, or interest
on any Security or a 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 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 6.03. CONTROL BY MAJORITY.
Securityholders of a majority in principal amount
of the Securities then outstanding 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 6.04. 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 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
indemnity satisfactory to the Trustee against any loss,
liability or expense;
(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 indemnity;
and
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(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 6.05. 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 6.06. COLLECTION SUIT BY TRUSTEE.
If a Default in the payment of the Securities
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 6.07. 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), 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
38
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 6.08. 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 Issuers directly without the
Trustee, to the Securityholders for their collection
costs;
(iii) Third: subject to Article 10, 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
(iv) Fourth: to the Issuers or, to the extent the
Trustee collects any amount pursuant to Article 11
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 6.09. 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
39
by the Trustee, a suit by a Securityholder pursuant to Section
6.04 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 a Default in the payment of the Securities 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 a Default in
the payment of the Securities:
(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
(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
40
(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 6.03 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.
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.
41
(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 a Default in the payment of the
Securities (other than with respect to Additional Interest
(as defined in the Securities)), the Trustee shall not be
deemed to have notice of any 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;
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.
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 occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each
Securityholder a notice of the Default within 60 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
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.
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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) 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.
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(d) Notwithstanding subparagraphs (a) or (b)
above, neither the Issuers nor any Subsidiary Guarantor need
reimburse any expense or indemnify against any loss 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 the occurrence of bankruptcy, insolvency or
other similar event with respect to an Issuer or a
Subsidiary Guarantor 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 the Bankruptcy Code.
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 Code;
(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 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.
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(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.
(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
45
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.
(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 the
mailing of a notice of redemption pursuant to Section 3.08,
and the Issuers have irrevocably deposited with the Trustee
funds sufficient to pay at maturity 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(c) and 8.04 hereof, be satisfied and
discharged and cease to be of further effect. The Trustee
shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuers accompanied by an
Officers' Certificate and an Opinion of Counsel at the cost
and expense of the Issuers.
(b) Notwithstanding clause (a) above, the
Issuers' obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07 and 7.07 hereof and the obligations of each Subsidiary
Guarantor under Article 11 in respect thereof shall survive
until the Securities have been paid in full. Thereafter,
the Issuers' obligations in Section 7.07 hereof and the
obligations of Subsidiary Guarantors under Article 11 in
respect thereof shall survive.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money deposited with it
pursuant to this Article 8. It shall apply the deposited money
through the Paying Agent and in accordance with this Indenture to
the payment of principal, premium, if any, and interest on the
Securities.
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SECTION 8.03. 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 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 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply
any money 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 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 held
by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF SECURITYHOLDERS.
(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, however, 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 Issuers 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 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 6.02 and 6.05 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 or
the Subsidiary Guarantors 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;
(ii) reduce the rate of or extend the time for payment of any
interest on any Security;
49
(iii) reduce the principal of or extend the Stated Maturity of any
Security or alter the redemption provisions (including without
limitation Sections 3.07, 3.08, 3.09 and 3.10 hereof) with respect
thereto;
(iv) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance
with Section 3.07, 3.08, 3.09 and 3.10;
(v) make any Security payable in money other than that stated in
the Security;
(vi) make any change in Section 6.02 or 6.05 hereof or in this
Section 9.02(a); or
(vii) waive a Default in the payment of principal of premium, if
any, or interest on, or redemption payment with respect to, any Security;
(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 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 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.
(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.
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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 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 12.04,
51
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
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Issuers and each Subsidiary Guarantor agree, and each Holder by
accepting an Security and the related Subsidiary Guarantee agrees, that the
Indebtedness evidenced by the Securities and the related Subsidiary
Guarantees is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment of (i) all Senior
Indebtedness in the case of an Security and (ii) all Guarantor Senior
Indebtedness of each Subsidiary Guarantor in the case of its obligations
under its Subsidiary Guarantee and that the subordination is for the benefit
of and enforceable by the holders of Senior Indebtedness and such Guarantor
Senior Indebtedness.
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY.
Upon any payment or distribution of the assets of an Issuer or any
Subsidiary Guarantor to creditors upon a total or partial liquidation or a
total or partial dissolution of an Issuer or such Subsidiary Guarantor or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to an Issuer or such Subsidiary Guarantor or their respective
properties:
(a) holders of Senior Indebtedness in the case of the Issuers or
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor in
the case of such Subsidiary Guarantor shall be entitled to receive
payment in full of all Senior Indebtedness in the case of the Issuers or
all such Guarantor Senior Indebtedness in the case of such Subsidiary
Guarantor before Holders shall be entitled to receive any payment of
principal of or interest on or other amounts with respect to the
Securities from the Issuers or such Subsidiary Guarantor, whether
directly by the Issuers or pursuant to the Subsidiary Guarantees; and
(b) until the Senior Indebtedness in the case of the Issuers or
such Guarantor Senior Indebtedness in the case of such Subsidiary
Guarantor is paid in full, any payment or distribution to which Holders
would be entitled but for this Article 10 shall be made to holders of
Senior Indebtedness in the case
52
of payments or distributions made by the Issuers or to the holders of such
Guarantor Senior Indebtedness in the case of payments or distributions
made by such Subsidiary Guarantor, in each case as their respective
interests may appear.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS OR GUARANTOR SENIOR
INDEBTEDNESS.
Neither the Issuers nor any Subsidiary Guarantor may pay the
principal of, premium (if any), or interest on the Securities or repurchase,
redeem or otherwise retire any Securities, whether directly by the Issuers or
by such Subsidiary Guarantor under its Subsidiary Guarantee (collectively,
"pay the Securities") if (i) any Designated Senior Indebtedness not paid when
due or (ii) any other default on Designated Senior Indebtedness occurs and
the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (x) the default has been
cured or waived and any such acceleration has been rescinded or (y) such
Designated Senior Indebtedness has been paid in full in cash; provided,
however, that the Issuers or such Subsidiary Guarantor may pay the
Securities, whether directly or pursuant to the Subsidiary Guarantee, without
regard to the foregoing if the Issuers or such Subsidiary Guarantor and the
Trustee receive written notice approving such payment from the Representative
of the Designated Senior Indebtedness with respect to which either of the
events set forth in clause (i) or (ii) of this sentence has occurred or is
continuing.
SECTION 10.04. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders that because of this Article
10 should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness and
Guarantor Senior Indebtedness and promptly pay it over to them as their
respective interests may appear.
SECTION 10.05. SUBROGATION.
After all Senior Indebtedness and Guarantor Senior Indebtedness is
paid in full in cash and until the Securities are paid in full, Holders shall
be subrogated to the rights of holders of Senior Indebtedness and Guarantor
Senior Indebtedness to receive distributions applicable to Senior
Indebtedness and Guarantor Senior Indebtedness. A distribution made under
this Article 10 to holders of Senior Indebtedness or Guarantor Senior
Indebtedness which otherwise would have been made to Holders is not, as
between the Issuers and Holders, a payment by an Issuer of Senior
Indebtedness or, as between a Subsidiary Guarantor and Holders, a payment by
such Subsidiary Guarantor of Guarantor Senior Indebtedness.
SECTION 10.06. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders and holders
of Senior Indebtedness and Guarantor Senior Indebtedness. Nothing in this
Article 10 shall:
53
(1) impair, as between the Issuers or the Subsidiary Guarantors,
as the case may be, and Holders, the obligation of the Issuers or the
Subsidiary Guarantors, as the case may be, which is absolute and
unconditional, to pay principal of and interest on the Securities in
accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness and Guarantor Senior Indebtedness to receive
distributions otherwise payable to Holders.
SECTION 10.07. SUBORDINATION MAY NOT BE IMPAIRED BY ISSUERS OR THE
SUBSIDIARY GUARANTORS.
No right of any holder of Senior Indebtedness or Guarantor Senior
Indebtedness to enforce the subordination of the Indebtedness evidenced by
the Securities or the related Subsidiary Guarantee shall be impaired by any
act or failure to act by the Issuers or any Subsidiary Guarantor or by the
failure of any of them to comply with this Indenture.
SECTION 10.08. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 10.03, the Trustee or Paying Agent may
continue to make payments on the Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any
such payments unless, not less than two Business Days prior to the date of
such payment, a Responsible Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 10. The
Issuers, the Registrar or co-registrar, the Paying Agent, a Representative or
a holder of Senior Indebtedness or Guarantor Senior Indebtedness may give the
notice; provided, however, that, if an issue of Senior Indebtedness or
Guarantor Senior Indebtedness has a Representative, only the Representative
may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness or Guarantor Senior Indebtedness with the same rights it would
have if it were not the Trustee. The Registrar and co-registrar and the
Paying Agent may do the same with like rights. The Trustee shall be entitled
to all the rights set forth in this Article 10 with respect to any Senior
Indebtedness or Guarantor Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness or
Guarantor Senior Indebtedness; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 10
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 10.09. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
54
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness or Guarantor Senior Indebtedness, the distribution may
be made and the notice given to their Representative (if any).
SECTION 10.10. ARTICLE 10 NOT TO PREVENT DEFAULT.
The failure to make a payment in respect of the Securities, whether
directly or pursuant to the Subsidiary Guarantees, by reason of any provision
in this Article 10 shall not be construed as preventing the occurrence of a
Default. Nothing in this Article 10 shall have any effect on the right of
the Holders or the Trustee to make a claim for payment under the Subsidiary
Guarantees.
SECTION 10.11. TRUSTEE ENTITLED TO RELY.
Upon any payment or distribution pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 10.02 are pending, (ii) upon a certificate of
the liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to the Holders or (iii) upon the
Representatives for the holders of Senior Indebtedness or Guarantor Senior
Indebtedness for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness, Guarantor Senior Indebtedness and other Indebtedness of the
Issuers or the Subsidiary Guarantors, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness or Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness or Guarantor Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under
this Article 10, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by
the Trustee pursuant to this Article 10.
SECTION 10.12. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by accepting a Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination between the Holders and the
holders of Senior Indebtedness and Guarantor Senior Indebtedness as provided
in this Article 10 and appoints the Trustee as attorney-in-fact for any and
all such purposes.
55
SECTION 10.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS AND
SUBSIDIARY GUARANTOR SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or Guarantor Senior Indebtedness and shall not
be liable to any such holders if it shall mistakenly pay over or distribute
to Holders or the Issuers, the Subsidiary Guarantors or any other Person,
money or assets to which any holders of Senior Indebtedness or Guarantor
Senior Indebtedness shall be entitled by virtue of this Article 10 or
otherwise.
SECTION 10.14. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS AND GUARANTOR
SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS.
Each Holder by accepting a Security acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness or
Guarantor Senior Indebtedness, whether such Senior Indebtedness or Guarantor
Senior Indebtedness was created or acquired before or after the issuance of
the Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness or Guarantor Senior Indebtedness and such holder of
Senior Indebtedness or Guarantor Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness or
Guarantor Senior Indebtedness.
ARTICLE 11
SUBSIDIARY GUARANTEE OF SECURITIES
SECTION 11.01. 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 Code
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 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)
56
and (ii) above, to the limitations set forth in Section 11.04 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.
(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 11.
(e) The Subsidiary Guarantee set forth in this Article 11 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 11.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
(a) To evidence each Subsidiary Guarantor's Subsidiary Guarantee
set forth in this Article 11, 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
57
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 11.01 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 11.03. 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 unrelated transactions; provided,
however, 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 11. 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
58
respect to such payment shall be reinstated as though such payment had been
due but not made at such time, and this Article 11, 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 11.04. 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 Code, 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 Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to Section 11.05 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 11.05. 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 Issuer's obligations
with respect to the Securities or any other Subsidiary Guarantor's
obligations with respect to the Subsidiary Guarantee.
SECTION 11.06. 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; 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 any other
59
Indebtedness of an Issuer and the other Subsidiary Guarantors shall also
terminate upon such release, sale or transfer. 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 11.06. 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 11.
SECTION 11.07. 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 form and substance satisfactory
to the Trustee, which subjects such Person to the provisions (including,
without limitation, the representations and warranties in this Article 11) 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 11.07 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 11.08. 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 11.06 and 11.08(a), (x) (i) immediately after such transaction,
and giving effect thereto, no Default shall
60
have occurred as a result of such transaction and be continuing and (ii) such
transaction does not violate any covenants set forth in this Indenture, and
(y) 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 11, and the due and punctual performance and 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 11.09. SUCCESSORS AND ASSIGNS.
This Article 11 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 11.10. 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.
61
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. 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, 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 12.02. 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
62
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 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 12.03. 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 12.04. 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 12.05 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 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.
63
SECTION 12.05. 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 12.06. 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 12.07. 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 12.08. 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, 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.
64
SECTION 12.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 12.10. 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 12.11. 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 12.12. 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 12.13. 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 12.14. 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.
SECTION 12.15. 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.
65
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
66
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
67
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
68
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
69
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
70
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
71
HURON P.S. LLC, a Virginia Limited
Liability Company
By: HURON HOLDINGS, LLC, a Virginia
Limited Liability Company, its
Manager
By: 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
72
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
73
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
By:______________________
Name: Alan R. Brill
Title: President
74
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
75
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:
76
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
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 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
EXHIBIT A
Page 2
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" 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
EXHIBIT A
Page 3
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 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
- -------------------------
* To be included in a Restricted Security only.
** To be included in the Global Appreciation Note only.
EXHIBIT A
Page 4
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 MANAGEMENT, INC. AT
812-423-6200 OR AT THE ADDRESS SET FORTH ON THE REVERSE OF
THIS SECURITY.
- -------------------------
** To be included in the Global Appreciation Note only.
EXHIBIT A
Page 5
CUSIP No:
(Front of Security)
No. 1 $___________
Specified Percentage: _____%
BRILL MEDIA COMPANY, LLC
BRILL MEDIA MANAGEMENT, INC.
Appreciation Notes due 2007, Series A
BRILL MEDIA COMPANY, LLC, a Virginia limited liability company
("BMC"), and BRILL MEDIA MANAGEMENT, INC. ("Media"), a Virginia
corporation, jointly and severally, promise to pay to
______________________________________, or its registered
assigns, on December 15, 2007 the sum of (i) ________________
(the "Principal Amount") and (ii) the amount by which the
Specified Percentage set forth above (the "Specified Percentage")
of the Value of BMC on such date exceeds the Principal Amount.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
BRILL MEDIA COMPANY, LLC, a
Virginia Liability Company
By: BRILL MEDIA MANAGEMENT, INC.,
a Virginia Corporation, its
Manager
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation
By: _____________________________
Name: Alan R. Brill
Title: President
By: _____________________________
EXHIBIT A
Page 6
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)
APPRECIATION 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. Payment Obligations. 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 principal of, and interest
and premium, if any, on this Security in the amounts and in the
manner specified below.
2. Terms of Securities.
The Securities will mature on December 15, 2007 (the
"Maturity Date"). Each Security will entitle the Holder thereof
to receive on the Maturity Date a cash payment of principal and
interest in the amount equal to (i) the Principal Amount plus
(ii) the amount by which the Specified Percentage of the Value of
BMC on the Maturity Date exceeds the Principal Amount.
3. Additional Interest. The rate of interest payable
on this Security shall be subject to the assessment of interest
(the "Additional Interest") as follows:
(i) if the Exchange Offer Registration Statement (as
defined below) or Shelf Registration Statement (as defined below)
is not filed within 60 days following the Issue Date (the "Filing
Date"), Additional Interest shall accrue on the Principal Amount
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 the Exchange Offer Registration Statement or
Shelf Registration Statement is not declared effective within 150
days following the Filing Date, Additional Interest shall accrue
on the Principal Amount 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
(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 Principal Amount at a rate of 0.50% per annum
for the first 30 days
EXHIBIT A
Page 8
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; 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 Securities as a result of such clause or the relevant
subclause thereof, as the case may be, shall cease to accrue.
Accrued Additional Interest shall be due and payable on
each June 15 and December 15.
"Appreciation Notes Registration Rights Agreement"
means the registration rights agreement pertaining to the
Securities dated as of December 30, 1997 among the Issuers, the
Subsidiary Guarantors and the Initial Purchasers.
"Exchange Offer" shall mean the exchange offer by the
Issuers of Initial Securities for Exchange Securities pursuant to
Section 2(a) of the Appreciation Notes 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.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers and the Subsidiary
Guarantors pursuant to the provisions of the Appreciation Notes
Registration Rights Agreement which covers all of the Initial
Securities 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.
4. Method of Payment. The Issuers shall pay amounts
due on the Securities to the Persons who are registered Holders
of Securities at the close of business on the date on
EXHIBIT A
Page 9
which payment is due. 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 payment to the Paying Agent or to a
Securityholder at the Securityholder's registered address.
5. 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.
6. 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. As and to the extent set forth in the
Indenture, the Securities are subordinated in right of payment to
the payment of all payments due and payable on all existing and
future Senior Indebtedness.
7. Optional Redemption. The Securities will not be
redeemable at the option of the Issuers prior to June 15, 1999.
Thereafter, if an Initial Public Offering has not occurred on or
before a date set forth below, the Securities will be redeemable,
at the Issuers' option, in whole but not in part, on such date
upon not less than 30 nor more than 60 days' prior notice mailed
by first-class mail to each holder's registered address, at a
redemption price for each Security equal to the Pro Rata
Percentage of each such Security of the amount set forth below
opposite such redemption date (which amount, in each case,
represents payment in full of all principal and interest on the
Securities):
Date Amount
------------ --------------
June 15, 1999 $ 3.0 million
June 15, 2000 $ 8.3 million
June 15, 2001 $12.8 million
June 15, 2002 $18.0 million
June 15, 2003 $24.0 million
June 15, 2004 $31.0 million
June 15, 2005 $39.0 million
June 15, 2006 $48.0 million
June 15, 2007 $58.0 million
EXHIBIT A
Page 10
8. Mandatory Redemption at the Option of the
Securityholders upon the Occurrence of Certain Events. Upon the
occurrence of an Initial Public Offering, a Sale of the Company
or the liquidation of either Issuer, each Holder will have the
right to require the Issuers to redeem all or any part of such
Holder's Securities at the relevant Specified Event Purchase
Price (which amount, in each case, represents payment in full of
all principal and interest on the Securities).
9. Mandatory Redemption at the Option of the
Securityholders on Specified Dates. If an Initial Public
Offering has not occurred on or before a date set forth below,
the Securityholders may require the Issuers to redeem their
Securities, in whole or in part, within 90 days of such date
at a redemption price for each Security equal to the Pro Rata
Percentage of such Security of the amount set forth below
opposite such date (which amount, in each case, represents
payment in full of all principal and interest thereon):
Date Amount
June 30, 2003 $24.0 million
June 30, 2004 $20.0 million
June 30, 2005 $13.0 million
A Securityholder may exercise its rights to require the
redemption of the Securities held by such Holder by mailing a
notice to the Trustee on or before a date as set forth above
stating that such Holder is demanding that the Issuers redeem the
Securities and the portion of the Securities to be redeemed.
Upon receipt of such notice the Issuers shall redeem the
Securities for which such notice has been received by no later
than the 90th day following the relevant date.
10. Notice of Optional Redemption by the Issuers.
Notice of optional redemption shall be mailed at least 30 but not
more than 60 days before the redemption date to each Holder whose
Securities are to be redeemed at its registered address pursuant
to an optional redemption by the Issuers. Securities may only be
redeemed in full.
11. Notice of Mandatory Redemption upon Specified
Events. Within 30 days following the occurrence of any Specified
Event, unless the Issuers have mailed a redemption notice with
respect to all the outstanding Securities, the Issuers shall mail
a notice to each Holder with a copy to the Trustee stating:
(i) that a Specified Event has occurred and that such
Securityholder has the right to require the Issuers to
redeem such Securityholder's Securities at a purchase price
in cash equal to the Specified Event Purchase Price (stating
the Specified Event Purchase Price for each $28.571428
principal amount of the Securities);
(ii) the redemption date (which shall be no earlier
than 30 days nor later than 60 days from the date such
notice is mailed);
(iii) the name and address of the Paying Agent; and
EXHIBIT A
Page 11
(iv) the procedures determined by the Issuers,
consistent with this Indenture, that a Securityholder must
follow in order to have its Securities redeemed.
Securityholders electing to have a Security
redeemed will be required to surrender the Security, with the
form entitled "Option of Securityholder to Elect Redemption" 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 redemption 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 redemption 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 redemption by the Securityholder
and a statement that such Securityholder is withdrawing his
election to have such Security redeemed.
12. Subordination. To the extent provided in the
Indenture, the Securities are subordinated to Senior Indebtedness
as defined in the Indenture. The Issuers agree, and each Holder
by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give
them effect and appoints the Trustee as attorney-in-fact for such
purpose.
The Issuers may not pay the Securities and may not
otherwise purchase, redeem or otherwise retire any Security
(collectively, "pay the Securities") if (i) any Designated Senior
Indebtedness is not paid when due or (ii) any other default on
Designated Senior Indebtedness occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such
Designated Senior Indebtedness has been paid in full in cash.
However, the Issuers may pay the Securities without regard to the
foregoing if the Issuers and the Trustee receive written notice
approving such payment from the Representative of the Designated
Senior Indebtedness with respect to which either of the events
set forth in clause (i) or (ii) of the immediately preceding
sentence has occurred and is continuing.
EXHIBIT A
Page 12
13. Registration Rights. Pursuant to the Appreciation
Note 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 Initial
Securities for Exchange Securities, which have been registered
under the Securities Act, in like principal amount and having
terms identical in all material respect to the Initial
Securities.
14. Transfer, Exchange. 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.
15. 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.
16. Amendments and Waivers. Subject to certain
exceptions provided in the Indenture, the Indenture or the
Securities may be amended with the consent of the Holders of a
majority in principal amount of the then outstanding Securities,
and 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.
Without the consent of any Securityholder, 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.
17. 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 Trustee.
18. Restrictive Covenants. The Indenture imposes
certain limitations on the ability of the Issuers and their
Restricted Subsidiaries to, among other things, merge or
consolidate with any other Person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of
its assets. 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.
EXHIBIT A
Page 13
19. Authentication. This Security shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
20. 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.
21. Governing Law. The Laws of the State of New York
shall govern this Security and the Indenture, without regard to
principles of conflict of laws.
22. Abbreviations. 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).
23. 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 14
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, 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 11 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 and Article 11 of the
Indenture and reference is hereby made to such Indenture for the precise
terms of this Subsidiary Guarantee. Indebtedness evidenced by this
Subsidiary Guarantee is subordinated to Guarantor Senior Indebtedness as set
forth in the Indenture.
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 11.06 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 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
EXHIBIT A
Page 15
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE 11 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
TRI-STATE BROADCASTING, INC., a
Virginia Corporation
By:______________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT A
Page 16
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 A
Page 17
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 18
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 19
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
EXHIBIT A
Page 20
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
EXHIBIT A
Page 21
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
EXHIBIT A
Page 22
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
EXHIBIT A
Page 23
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
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
EXHIBIT A
Page 24
If you want to have all or part of this Security purchased by the
Issuers pursuant to Section 3.09 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.)
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 25
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 26
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
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.
EXHIBIT A
Page 27
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 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. 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 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
________________________
* To be included in the Global Appreciation Note only.
EXHIBIT B
Page 2
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 MANAGEMENT,
INC. AT 812-423-6200 OR AT THE ADDRESS SET FORTH ON THE
REVERSE OF THIS SECURITY.
________________________
** To be included in the Global Appreciation Note only.
EXHIBIT B
Page 3
CUSIP No:
(Front of Security)
No.
$___________
Specified Percentage: _____%
BRILL MEDIA COMPANY, LLC
BRILL MEDIA MANAGEMENT, INC.
Appreciation Notes due 2007, Series A
BRILL MEDIA COMPANY, LLC, a Virginia limited liability company ("BMC"), and
BRILL MEDIA MANAGEMENT, INC. ("Media"), a Virginia corporation, jointly and
severally, promise to pay to ______________________________________, or its
registered assigns, on December 15, 2007 the sum of (i) ________________ (the
"Principal Amount") and (ii) the amount by which the Specified Percentage set
forth above (the "Specified Percentage") of the Value of BMC on such date
exceeds the Principal Amount.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated:
BRILL MEDIA COMPANY, LLC, a
Virginia Liability Company
By: BRILL MEDIA MANAGEMENT,
INC., a Virginia
Corporation, its Manager
By:_____________________________
Name: Alan R. Brill
Title: President
By:_____________________________
BRILL MEDIA MANAGEMENT, INC., a
Virginia Corporation
By:_____________________________
Name: Alan R. Brill
Title: President
By:_____________________________
EXHIBIT B
Page 4
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)
APPRECIATION 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. Payment Obligations. 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 principal of, and interest and premium, if any, on this
Security in the amounts and in the manner specified below.
2. Terms of Securities.
The Securities will mature on December 15, 2007 (the "Maturity Date").
Each Security will entitle the Holder thereof to receive on the Maturity
Date a cash payment of principal and interest in the amount equal to (i) the
Principal Amount plus (ii) the amount by which the Specified Percentage of
the Value of BMC on the Maturity Date exceeds the Principal Amount.
3. Method of Payment. The Issuers shall pay amounts due on the
Securities to the Persons who are registered Holders of Securities at the
close of business on the date on which payment is due. 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 payment to the Paying Agent
or to a Securityholder at the Securityholder's registered address.
4. 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.
5. 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. As and to the
extent set forth in the Indenture, the Securities are
EXHIBIT B
Page 6
subordinated in right of payment to the payment of all payments due and
payable on all existing and future Senior Indebtedness.
6. Optional Redemption. The Securities will not be redeemable at the
option of the Issuers prior to June 15, 1999. Thereafter, if an Initial
Public Offering has not occurred on or before a date set forth below, the
Securities will be redeemable, at the Issuers' option, in whole but not in
part, on such date upon not less than 30 nor more than 60 days' prior notice
mailed by first-class mail to each holder's registered address, at a
redemption price for each Security equal to the Pro Rata Percentage of each
such Security of the amount set forth below opposite such redemption date
(which amount, in each case, represents payment in full of all principal and
interest on the Securities):
Date Amount
---- ------
June 15, 1999 $ 3.0 million
June 15, 2000 $ 8.3 million
June 15, 2001 $12.8 million
June 15, 2002 $18.0 million
June 15, 2003 $24.0 million
June 15, 2004 $31.0 million
June 15, 2005 $39.0 million
June 15, 2006 $48.0 million
June 15, 2007 $58.0 million
7. Mandatory Redemption at the Option of the Securityholders upon the
Occurrence of Certain Events. Upon the occurrence of an Initial Public
Offering, a Sale of the Company or the liquidation of either Issuer, each
Holder will have the right to require the Issuers to redeem all or any part
of such Holder's Securities at the relevant Specified Event Purchase Price
(which amount, in each case, represents payment in full of all principal and
interest on the Securities).
8. Mandatory Redemption at the Option of the Securityholders on
Specified Dates. If an Initial Public Offering has not occurred on or before
a date set forth below, the Securityholders may require the Issuers to redeem
their Securities, in whole or in part, within 90 days of such date at a
redemption price for each Security equal to the Pro Rata Percentage of such
Security of the amount set forth below opposite such date (which amount, in
each case, represents payment in full of all principal and interest thereon):
Date Amount
---- ------
June 30, 2003 $24.0 million
June 30, 2004 $20.0 million
June 30, 2005 $13.0 million
A Securityholder may exercise its rights to require the redemption of
the Securities held by such Holder by mailing a notice to the Trustee on or
before a date as set forth above
EXHIBIT B
Page 7
stating that such Holder is demanding that the Issuers redeem the Securities
and the portion of the Securities to be redeemed. Upon receipt of such
notice the Issuers shall redeem the Securities for which such notice has been
received by no later than the 90th day following the relevant date.
9. Notice of Optional Redemption by the Issuers. Notice of optional
redemption shall be mailed at least 30 but not more than 60 days before the
redemption date to each Holder whose Securities are to be redeemed at its
registered address pursuant to an optional redemption by the Issuers.
Securities may only be redeemed in full.
10. Notice of Mandatory Redemption upon Specified Events. Within 30
days following the occurrence of any Specified Event, unless the Issuers have
mailed a redemption notice with respect to all the outstanding Securities,
the Issuers shall mail a notice to each Holder with a copy to the Trustee
stating:
(i) that a Specified Event has occurred and that such
Securityholder has the right to require the Issuers to redeem such
Securityholder's Securities at a purchase price in cash equal to
the Specified Event Purchase Price (stating the Specified Event
Purchase Price for each $28.571428 principal amount of the
Securities);
(ii) the redemption date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed);
(iii) the name and address of the Paying Agent; and
(iv) the procedures determined by the Issuers, consistent with
this Indenture, that a Securityholder must follow in order to have
its Securities redeemed.
Securityholders electing to have a Security redeemed will be
required to surrender the Security, with the form entitled "Option of
Securityholder to Elect Redemption" 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 redemption 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 redemption 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
redemption by the Securityholder and a statement that such Securityholder is
withdrawing his election to have such Security redeemed.
EXHIBIT B
Page 8
11. Subordination. To the extent provided in the Indenture, the
Securities are subordinated to Senior Indebtedness as defined in the
Indenture. The Issuers agree, and each Holder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give them effect and appoints the Trustee as
attorney-in-fact for such purpose.
The Issuers may not pay the Securities and may not otherwise purchase,
redeem or otherwise retire any Security (collectively, "pay the Securities")
if (i) any Designated Senior Indebtedness is not paid when due or (ii) any
other default on Designated Senior Indebtedness occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its
terms unless, in either case, the default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full in cash. However, the Issuers may pay the Securities
without regard to the foregoing if the Issuers and the Trustee receive
written notice approving such payment from the Representative of the
Designated Senior Indebtedness with respect to which either of the events set
forth in clause (i) or (ii) of the immediately preceding sentence has
occurred and is continuing.
12. Transfer, Exchange. 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.
13. 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.
14. Amendments and Waivers. Subject to certain exceptions provided in
the Indenture, the Indenture or the Securities may be amended with the
consent of the Holders of a majority in principal amount of the then
outstanding Securities, and 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. Without the consent
of any Securityholder, the Indenture or the Securities may be amended to,
among other things, cure any
EXHIBIT B
Page 9
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.
15. 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 Trustee.
16. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Issuers and their Restricted Subsidiaries to, among
other things, merge or consolidate with any other Person or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its assets. 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.
17. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
18. 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.
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.
EXHIBIT B
Page 10
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 11
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, 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
11 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 and Article 11 of the Indenture and
reference is hereby made to such Indenture for the precise
terms of this Subsidiary Guarantee. Indebtedness evidenced by
this Subsidiary Guarantee is subordinated to Guarantor Senior
Indebtedness as set forth in the Indenture.
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 11.06 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 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
EXHIBIT B
Page 12
shall have been executed by the Trustee under the Indenture by
the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE 11 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
TRI-STATE BROADCASTING, INC., a
Virginia Corporation
By:______________________
Name: Alan R. Brill
Title: Vice President
EXHIBIT B
Page 13
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 14
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 15
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 16
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
EXHIBIT B
Page 17
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
EXHIBIT B
Page 18
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
EXHIBIT B
Page 19
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
EXHIBIT B
Page 20
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
EXHIBIT B
Page 21
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to have all or part of this Security purchased by the
Issuers pursuant to Section 3.09 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.)
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 22
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 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,
Brill Media Management, Inc.
Appreciation Notes due 2007
Ladies and Gentlemen:
In connection with our proposed purchase of
Appreciation Notes due 2007 (the "Securities") of Brill Media
Company, LLC ("BMC") 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 "Appreciation Note 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").
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
EXHIBIT C
Page 2
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 "Appreciation Notes 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.
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,
EXHIBIT C
Page 3
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")
Appreciation 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;
(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;
EXHIBIT D
Page 2
(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