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SFX BROADCASTING, INC.
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SUBORDINATED INDENTURE
Dated as of ________________ __, 199_
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Trustee
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE...........................................................1
SECTION 1.1 DEFINITIONS.................................................................................1
SECTION 1.2 OTHER DEFINITIONS...........................................................................6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...........................................6
SECTION 1.4 RULES OF CONSTRUCTION.......................................................................6
ARTICLE II. THE SECURITIES......................................................................................7
SECTION 2.1 ISSUABLE IN SERIES..........................................................................7
SECTION 2.2 ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES..............................................7
SECTION 2.3 EXECUTION AND AUTHENTICATION...............................................................10
SECTION 2.4 REGISTRAR AND PAYING AGENT.................................................................11
SECTION 2.5 PAYING AGENT TO HOLD MONEY IN TRUST........................................................12
SECTION 2.6 SECURITYHOLDER LISTS.......................................................................12
SECTION 2.7 TRANSFER AND EXCHANGE......................................................................13
SECTION 2.8 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...........................................13
SECTION 2.9 OUTSTANDING SECURITIES.....................................................................14
SECTION 2.10 TREASURY SECURITIES.......................................................................14
SECTION 2.11 TEMPORARY SECURITIES......................................................................15
SECTION 2.12 CANCELLATION..............................................................................15
SECTION 2.13 DEFAULTED INTEREST........................................................................15
SECTION 2.14 GLOBAL SECURITIES.........................................................................15
SECTION 2.15 CUSIP NUMBERS.............................................................................20
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ARTICLE III. REDEMPTION........................................................................................20
SECTION 3.1 NOTICE TO TRUSTEE..........................................................................20
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED.....................................................20
SECTION 3.3 NOTICE OF REDEMPTION.......................................................................21
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.............................................................21
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE................................................................21
SECTION 3.6 SECURITIES REDEEMED IN PART................................................................22
ARTICLE IV. COVENANTS..........................................................................................22
SECTION 4.1 PAYMENT OF SECURITIES .....................................................................22
SECTION 4.2 REPORTS....................................................................................22
SECTION 4.3 COMPLIANCE CERTIFICATE.....................................................................23
SECTION 4.4 STAY, EXTENSION AND USURY LAWS.............................................................23
SECTION 4.5 CONTINUED EXISTENCE........................................................................24
SECTION 4.6 TAXES......................................................................................24
ARTICLE V. SUCCESSORS..........................................................................................24
SECTION 5.1 MERGER, CONSOLIDATION, OR SALE OF ASSETS...................................................24
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED..........................................................24
ARTICLE VI. DEFAULTS AND REMEDIES..............................................................................25
SECTION 6.1 EVENTS OF DEFAULT..........................................................................25
SECTION 6.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.........................................27
SECTION 6.3 [INTENTIONALLY LEFT BLANK].................................................................28
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SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM...........................................................28
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES................................29
SECTION 6.6 APPLICATION OF MONEY COLLECTED.............................................................29
SECTION 6.7 LIMITATION ON SUITS........................................................................29
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST...........................30
SECTION 6.9 RESTORATION OF RIGHTS AND REMEDIES.........................................................30
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE............................................................30
SECTION 6.11 DELAY OR OMISSION NOT WAIVER..............................................................31
SECTION 6.12 CONTROL BY HOLDERS........................................................................31
SECTION 6.13 WAIVER OF PAST DEFAULTS...................................................................31
SECTION 6.14 UNDERTAKING FOR COSTS.....................................................................32
ARTICLE VII. TRUSTEE...........................................................................................32
SECTION 7.1 DUTIES OF TRUSTEE..........................................................................32
SECTION 7.2 RIGHTS OF TRUSTEE..........................................................................33
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE...............................................................34
SECTION 7.4 TRUSTEE'S DISCLAIMER.......................................................................34
SECTION 7.5 NOTICE OF DEFAULTS.........................................................................35
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS..............................................................35
SECTION 7.7 COMPENSATION AND INDEMNITY.................................................................35
SECTION 7.8 REPLACEMENT OF TRUSTEE.....................................................................36
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC...........................................................37
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.............................................................37
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.........................................37
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ARTICLE VIII. LEGAL DEFEASEANCE AND COVENANT DEFEASANCE........................................................38
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE...................................38
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE.............................................................38
SECTION 8.3 COVENANT DEFEASANCE........................................................................38
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.................................................39
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS....................................................................41
SECTION 8.6 REPAYMENT TO THE COMPANY...................................................................41
SECTION 8.7 REINSTATEMENT..............................................................................42
ARTICLE IX. AMENDMENTS AND WAIVERS.............................................................................42
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.................................................................42
SECTION 9.2 WITH CONSENT OF HOLDERS....................................................................43
SECTION 9.3 LIMITATIONS................................................................................43
SECTION 9.4 COMPLIANCE WITH TRUST INDENTURE ACT........................................................44
SECTION 9.5 REVOCATION AND EFFECT OF CONSENTS..........................................................44
SECTION 9.6 NOTATION ON OR EXCHANGE OF SECURITIES......................................................44
SECTION 9.7 TRUSTEE PROTECTED..........................................................................45
ARTICLE X. MISCELLANEOUS.......................................................................................45
SECTION 10.1 TRUST INDENTURE ACT CONTROLS..............................................................45
SECTION 10.2 NOTICES...................................................................................45
SECTION 10.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS...............................................46
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........................................46
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SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.............................................46
SECTION 10.6 RULES BY TRUSTEE AND AGENTS...............................................................47
SECTION 10.7 LEGAL HOLIDAYS............................................................................47
SECTION 10.8 NO RECOURSE AGAINST OTHERS................................................................47
SECTION 10.9 COUNTERPARTS..............................................................................47
SECTION 10.10 GOVERNING LAWS...........................................................................47
SECTION 10.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............................................48
SECTION 10.12 SUCCESSORS...............................................................................48
SECTION 10.13 SEVERABILITY.............................................................................48
SECTION 10.14 TABLE OF CONTENTS, HEADINGS, ETC.........................................................48
ARTICLE XI. SINKING FUNDS......................................................................................48
SECTION 11.1 APPLICABILITY OF ARTICLE..................................................................48
SECTION 11.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.....................................49
SECTION 11.3 REDEMPTION OF SECURITIES FOR SINKING FUND.................................................49
ARTICLE XII. SUBORDINATION.....................................................................................50
SECTION 12.1 AGREEMENT TO SUBORDINATE..................................................................50
SECTION 12.2 CERTAIN DEFINITIONS.......................................................................50
SECTION 12.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY......................................................50
SECTION 12.4 DEFAULT ON DESIGNATED SENIOR DEBT.........................................................51
SECTION 12.5 ACCELERATION OF SECURITIES................................................................52
SECTION 12.6 WHEN DISTRIBUTION MUST BE PAID OVER.......................................................52
SECTION 12.7 NOTICE BY COMPANY.........................................................................53
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SECTION 12.8 SUBROGATION...............................................................................53
SECTION 12.9 RELATIVE RIGHTS...........................................................................53
SECTION 12.10 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.............................................54
SECTION 12.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.................................................54
SECTION 12.12 RIGHTS OF TRUSTEE AND PAYING AGENT.......................................................54
SECTION 12.13 AUTHORIZATION TO EFFECT SUBORDINATION....................................................55
SECTION 12.14 AMENDMENTS...............................................................................55
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Indenture dated as of __________ __, 199_ between SFX
Broadcasting, Inc., a Delaware corporation ("Company"), and ________________, a
_____________ corporation ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"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" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate and delivered
to the Trustee.
"Business Day" means, unless otherwise provided by Board
Resolution, Officers' Certificate or supplemental indenture hereto for a
particular Series, any day except a Saturday, a Sunday or a Legal Holiday in
the City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that
confers on a person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing person.
"Certificated Securities" means Securities in definitive form,
excluding any Global Security.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of
the Company by two Officers, one of whom must be the Company's principal
executive officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name
of the Company by its Chairman of the Board, a President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Debt" of any person as of any date means, without
duplication, all indebtedness of such person in respect of borrowed money,
including all interest, fees and expenses owed in respect thereto (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments.
"Default" means any event that is or with the passage of time
or giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depository" as used
with respect to the Securities of any Series shall mean the Depository with
respect to the Securities of such Series.
"Discount Security" means any Security that provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
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"Dollars" means the currency of The United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section
2.1 evidencing all or part of a Series of Securities, issued to the Depository
for such Series or its nominee, and registered in the name of such Depository
or nominee.
"Government Securities" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America which are not callable
or redeemable at the option of the issuer thereof, and shall also include a
Depository receipt issued by a bank or trust company as custodian with respect
to any such Government Securities or a specific payment of interest on or
principal of any such Government Securities held by such custodian for the
account of the holder of a Depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such Depository receipt from any amount
received by the custodian in respect of the Government Securities evidenced by
such Depository receipt.
"Holder" or "Securityholder" means a person in whose name a Security
is registered.
"Indenture" means this Indenture as amended from time to time and
shall include the form and terms of particular Series of Securities
established or contemplated hereunder.
"Material Broadcast License" means one or more authorizations issued
by the Federal Communications Commission for the operation of AM or FM radio
stations that individually or collectively are material to the financial
condition, results of operations or prospects of the Company and its
Subsidiaries taken as a whole.
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Obligations" means any principal, interest, penalties, fees
(including, but not limited to, reasonable fees and expenses of counsel),
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness (as such term
3
is defined in the Board Resolution, Officers' Certificate or supplemental
indenture used to issue a Series of Securities).
"Officer" means the Chairman of the Board, any President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company, other entity or government or any
agency or political subdivision thereof.
"PIK Securities" means any Series of Securities where
interest is payable, at the election of the Company or a holder of such
Security, in additional Securities.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
"Responsible Officer" when used with respect to the Trustee,
means the chairman or the vice-chairman of the board of directors or trustees,
the chairman or vice-chairman of the executive committee of the board of
directors or trustees, the president, any vice-president, the treasurer, the
secretary, any trust officer, any second or assistant vice-president or any
officer or assistant officer of the Trustee other than those specifically above
mentioned customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt
instruments of the Company of any Series authenticated and delivered under this
Indenture.
"Security Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"Senior Securities" means any Series of Securities that by
their terms are not expressly subordinated in right of payment to the prior
payment in full of all senior debt.
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"Series" or "Series of Securities" means each series of
debentures, notes or other debt instruments of the Company created pursuant to
Sections 2.1 and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect
Subsidiary of the Company that would be a "significant subsidiary" as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company
that, taken together as a group, would be a "significant subsidiary" as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof,
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subordinated Securities" means any Series of Securities that
by their terms are expressly subordinated in right of payment to the prior
payment in full of all senior debt.
"Subsidiary" means, with respect to any person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Voting Stock thereof is at the time owned or
controlled, directly or indirectly, by such person or one or more of the other
Subsidiaries of that person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or the managing general partner of which is such
person or a Subsidiary of such person or (b) the only general partners of which
are such person or one or more Subsidiaries of such person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
xx.xx. 77aaa-77bbbb) as in effect on the date of this Indenture; 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 as so amended.
"Trustee" means the person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder,
and if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"Voting Stock" means with respect to any specified person,
Capital Stock with voting power, under ordinary circumstances and without
regard to the occurrence of any contingency, to elect the directors or other
managers or trustees of such person.
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SECTION 1.2 Other Definitions.
DEFINED IN TERM SECTION
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"Bankruptcy Law" 6.1
"Event of Default" 6.1
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Notice of Default" 6.1
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Payment Default" 6.1
"Registrar" 2.4
"Service Agent" 2.4
SECTION 1.3 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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company 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 SEC rule under the
TIA and not otherwise defined herein are used herein as so defined.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
6
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(c) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
SECTION 2.1 Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be provided in a Board Resolution, Officers'
Certificate or a supplemental indenture hereto detailing the adoption of the
terms thereof pursuant to the Board Resolution, Officers' Certificate or a
supplemental indenture hereto. In the case of Securities of a Series to be
issued from time to time, the Officers' Certificate may provide for the method
by which specified terms (such as interest rate, maturity date, record date or
date from which interest should accrue) are to be determined. Securities may
differ between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the
Indenture.
SECTION 2.2 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a
Series, the following shall be established (as to the Series generally, in the
case of Subsections 2.2.1 and 2.2.2, and either as to such Securities within
the Series or as to the Series generally in the case of Subsections 2.2.3
through 2.2.21) by a Board Resolution, a supplemental indenture hereto or an
Officers' Certificate pursuant to authority granted under a Board Resolution:
7
2.2.1 the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series)
and whether such Securities are Senior Securities or Subordinated Securities;
2.2.2 the aggregate principal amount of such Securities and
any limit on such aggregate principal amount that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.3 the price or prices (expressed as a percentage of the
principal amount thereof) at which such Securities will be issued and, if other
than the principal amount thereof, the portion of the principal amount payable
upon declaration or acceleration of maturity thereof, or, if applicable, the
portion of the principal amount of such Securities that is convertible into
Class A Common Stock or the method by which any such portion shall be
determined;
2.2.4 if convertible into Class A Common Stock, the terms on
which such Securities are convertible, including the initial conversion price,
the conversion period, any events requiring an adjustment of the applicable
conversion price and any requirements relating to the reservation of such
shares of Class A Common Stock for purposes of conversion;
2.2.5 the date or dates on which the principal amount of such
Securities will be payable and, if applicable, the terms on which such maturity
may be extended;
2.2.6 the rate or rates (which may be fixed or variable)
at which such Securities will bear interest, if any;
2.2.7 the date or dates from which any such interest will
accrue, the dates on which any such interest will be payable, the record dates
for such interest payment dates, the persons to whom such interest shall be
payable, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
2.2.8 the place or places where the principal of and
interest, if any, on such Securities will be payable, where such Securities may
be surrendered for registration of transfer, conversion or exchange and where
notices or demands to or upon the Company in respect of such Securities may be
served;
2.2.9 the period or periods, if any, within which, the price
or prices at which and the other terms and conditions upon which such
Securities may, pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at the Option of the Company;
8
2.2.10 the dates, if any, on which and the price or prices
at which the Securities of the Series will be repurchased by the Company at
the option of the Holders thereof and other detailed terms and provisions of
such repurchase obligations;
2.2.11 the denominations in which the Securities of the
Series shall be issuable;
2.2.12 the obligation, if any, of the Company to redeem,
repay or purchase such Securities pursuant to any Sinking Fund or analogous
provision or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and conditions
upon which such Securities will be redeemed, repaid or purchased, as a whole
or in part, pursuant to such obligations;
2.2.13 whether the payments of principal of or interest,
if any, on such Security may be determined with reference to an index, formula
or other method and the manner in which such amounts shall be determined
2.2.14 whether the Securities are issued as Discount
Securities, and all material U.S. federal income tax, accounting and other
considerations applicable to such Original Issue Discount Securities;
2.2.15 whether the interest, if any, on the Securities is
to be payable, at the election of the Company or a holder thereof, in cash or
in PIK Securities and the period or periods within which, and the terms and
conditions upon which, such election may be made, and all material U.S.
federal income tax, accounting and other considerations applicable to such PIK
Securities;
2.2.16 provisions, if any, granting special rights to the
holders of Securities of any Series upon the occurrence of such events as may
be specified;
2.2.17 any deletions from, modifications of or additions
to the Events of Default of the Company with respect to Securities of any
Series, whether or not such Events of Default are consistent with the Events
of Default described in Article VI;
2.2.18 whether Securities of any Series are to be issuable
initially in temporary global form and whether any Securities of any Series
are to be issuable in permanent global form and, if so, whether beneficial
owners of interests in any such Security in permanent form may exchange such
interest for Securities of such Series and of like tenor of any authorized
form and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided herein, and, if Securities of such
Series are to issuable as a Global Security, the identity of the Depository
for such Series;
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2.2.19 the applicability, if any, of the legal defeasance
and covenant defeasance provisions hereof to the Securities of such series;
2.2.20 any addition to or change in the covenants set
forth in Article IV that applies to Securities of the Series; and
2.2.21 any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.1, but which may modify or delete any
provision of this Indenture insofar as it applies to such Series); and
All Securities of any one Series need not be issued at the
same time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board Resolution or
Officers' Certificate referred to above or as set forth in a supplemental
indenture hereto, and the authorized principal amount of any Series may not be
increased to provide for issuances of additional Securities of such Series,
unless otherwise provided in the Board Resolution, Officers' Certificate or a
supplemental indenture hereto.
SECTION 2.3 Execution and Authentication.
Two Officers shall sign the Securities for the Company 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.
A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in
the Board Resolution or Officers' Certificate detailing the adoption of terms
pursuant to the Board Resolution, Officers' Certificate or a supplemental
indenture hereto, upon receipt by the Trustee of a Company Order. If provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by Board Resolution, Officers'
Certificates or a supplemental indenture hereto.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the
10
Board Resolution or Officers' Certificate or supplemental indenture hereto
delivered pursuant to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the
Trustee shall have received and (subject to Section 7.2) shall be fully
protected in relying on: (a) the Board Resolution, Officers' Certificate or a
supplemental indenture hereto detailing the adoption of terms pursuant to the
Board Resolution, Officers' Certificate or a supplemental indenture hereto
establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities
within that Series, (b) an Officers' Certificate complying with Section 10.4,
and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
determine that such action would expose the Trustee to personal liability to
Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate.
SECTION 2.4 Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of such Series
may be presented or surrendered for payment ("Paying Agent"), where Securities
of such Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect
of the Securities of such Series and this Indenture may be served ("Service
Agent"). The Registrar shall keep a register with respect to each Series of
Securities and to their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying
Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company may change any Registar without notice. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the name or address of any such co-registrar,
additional paying agent or additional service agent. The term "Registrar"
includes any co-registrar; the term "Paying Agent" includes any additional
paying agent; and the term "Service Agent" includes any additional service
agent.
The Company hereby appoints the Trustee the initial
Registrar, Paying Agent and Service Agent for each Series unless another
Registrar, Paying Agent or Service Agent, as the case may be, is appointed
prior to the time Securities of that Series are first issued.
SECTION 2.5 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the Trustee, all
money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the
Company 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 Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of Securityholders of any
Series of Securities all money held by it as Paying Agent.
SECTION 2.6 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 of each Series of Securities and shall otherwise
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each interest payment
date and at such other times as the Trustee may request in writing a list, in
such form and as of such date as the Trustee may reasonably require, of the
names and addresses of Securityholders of each Series of Securities.
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SECTION 2.7 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar
or a co-registrar with a request to register a transfer or to exchange them for
an equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required (a)
to issue, register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days immediately
preceding the mailing of a notice of redemption of Securities of that Series
selected for redemption and ending at the close of business on the day of such
mailing, or (b) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or being called
for redemption in part.
SECTION 2.8 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
13
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.9 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding. See, however, Section 2.10.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds on the Maturity of Securities of a Series
money sufficient to pay such Securities payable on that date, then on and after
that date such Securities of the Series cease to be outstanding and interest on
them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.
SECTION 2.10 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any direction, waiver or
consent, Securities of a Series owned by
14
the Company or an Affiliate shall be disregarded, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities of a Series that the Trustee
knows are so owned shall be so disregarded.
SECTION 2.11 Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities
upon a Company Order. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
SECTION 2.12 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment, replacement or cancellation and shall destroy such
canceled Securities (subject to the record retention requirement of the
Exchange Act) and deliver a certificate of such destruction to the Company,
unless the Company otherwise directs. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent
permitted by law, any interest payable on the defaulted interest, to the
persons who are Securityholders of the Series on a subsequent special record
date. The Company shall fix the record date and payment date. At least 30 days
before the record date, the Company shall mail to the Trustee and to each
Securityholder of the Series a notice that states the record date, the payment
date and the amount of interest to be paid. The Company may pay defaulted
interest in any other lawful manner.
SECTION 2.14 Global Securities.
2.14.1 Terms of Securities. A Board Resolution, an Officers'
Certificate or supplemental indenture hereto detailing the adoption of terms
pursuant to the Board Resolution shall establish whether the Securities of a
Series shall be issued in whole or in part in the form of one or more Global
Securities and shall specify the Depository for such Global Security or
Securities.
15
2.14.2 Transfer and Exchange. (a) Transfer and Exchange of
Certificated Securities. When Certificated Securities are presented by a
Holder to the Registrar with a request:
(x) to register the transfer of the Certificated
Securities; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met;
provided, however, that the Certificated Securities presented or surrendered
for register of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing.
(b) Transfer of a Certificated Security for a Beneficial
Interest in a Global Security. A Certificated Security may not be exchanged for
a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with written instructions from
the Holder thereof directing the Trustee to make, or to direct the Security
Custodian to make, an endorsement on the Global Security of such Series to
reflect an increase in the aggregate principal amount of the Securities of such
Series represented by the Global Security, in which case the Trustee shall
cancel such Certificated Security in accordance with Section 2.12 hereof and
cause, or direct the Security Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depository and the
Security Custodian, the aggregate principal amount of Securities of such Series
represented by the Global Security to be increased accordingly. If no Global
Securities are then outstanding, the Company shall issue and, upon receipt of a
written order in accordance with Section 2.3 hereof, the Trustee shall
authenticate a new Global Security for such Series in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture and the
procedures of the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security
for a Certificated Security.
(i) Any person having a beneficial interest in a
Global Security may upon request exchange such beneficial interest for
a Certificated Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for
the Depository, from the Depository or its nominee on behalf of any
person having a beneficial interest in a Global Security (all of which
may be submitted by facsimile) the Trustee or the
16
Security Custodian, at the direction of the Trustee, shall, in
accordance with the standing instructions and procedures existing
between the Depository and the Security Custodian, cause the
aggregate principal amount of Global Securities to be reduced
accordingly and, following such reduction, the Company shall execute
and, upon receipt of a written order in accordance with Section 2.3
hereof, the Trustee shall authenticate and deliver to the transferee
a Certificated Security in the appropriate principal amount.
(ii) Certificated Securities issued in exchange for
a beneficial interest in a Global Security pursuant to this Section
2.14.2(d) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificated Securities to the
persons in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provision of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.14.2), a Global
Security may not be transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(f) Authentication of Certificated Securities in Absence
of Depository. If at any time:
(i) the Depository for the Securities notifies the Company that
the Depository is unwilling or unable to continue as Depository for
the Global Securities and a successor Depository for the Global
Securities is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Certificated
Securities under this Indenture,
then the Company shall execute, and the Trustee shall,
upon receipt of a written order in accordance with Section 2.3 hereof,
authenticate and delive r, Certificated Securities in an aggregate principal
amount equal to the principal amount of the Global Securities in exchange for
such Global Securities.
(g) Cancellation and/or Adjustment of Global Securities.
At such time as all beneficial interests in Global Securities have been
exchanged for Certificated Securities, redeemed, repurchased or canceled, all
Global Securities shall be returned to or retained and canceled by the Trustee
in accordance with Section 2.12 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Certificated Securities, redeemed, repurchased or canceled, the principal
amount of Securities represented by
17
such Global Security shall be reduced accordingly and an endorsement shall be
made on such Global Security, by the Trustee or the Security Custodian, at the
direction of the Trustee, to reflect such reduction.
(h) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall issue and the Trustee shall authenticate
Certificated Securities and Global Securities at the Registrar's
request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Security selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
(iv) All Certificated Securities and Global
Securities issued upon any registration of transfer or exchange of
Certificated Securities or Global Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Certificated Securities
or Global Securities surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of
or to exchange Securities during a period beginning at the
opening of business 15 days before the day of any selection
of Securities for redemption and ending at the close of
business on the day of selection; or
(B) to register the transfer of or to
exchange any Security so selected for redemption, in whole or
in part, except the unredeemed portion of any Security being
redeemed in part; or
(C) to register the transfer of or to
exchange a Security between a record date and the next
succeeding interest payment date.
(vi) Prior to due presentment for the registration
of a transfer of any Security, the Trustee, any Agent and the Company
may deem and treat the person in
18
whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of
and interest, if any, on such Security, and none of the Trustee, any
Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated
Securities and Global Securities in accordance with the provisions of
Section 2.3 hereof.
2.14.3 Legend. Any Global Security issued hereunder shall
bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository."
2.14.4 Acts of Holders. The Depository, as a Holder, may
appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.
2.14.5 Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of and interest, if any, on any Global Security shall be made
to the person specified therein.
2.14.6 Consents, Declaration and Directions. Except as
provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat
a person as the Holder of such principal amount of outstanding Securities of
such Series represented by a Global Security as shall be specified in a written
statement of the Depository with respect to such Global Security, for purposes
of obtaining any consents, declarations or directions required to be given by
the Holders pursuant to this Indenture.
2.14.7 Liability for Delay. Neither the Company nor the
Trustee shall be liable for any delay by the Security Custodian or the
Depository in identifying the beneficial owners of Securities and the Company
and the Trustee may conclusively rely on, and will be protected in relying on,
instructions from the Security Custodian or the Depository for all purposes.
19
SECTION 2.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
SECTION 3.1 Notice to Trustee.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as are provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify
the Trustee of the redemption date and the principal amount of Series of
Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the
Trustee).
SECTION 3.2 Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by Board
Resolution, Officers' Certificate or by a supplemental indenture hereto, if
less than all the Securities of a Series are to be redeemed, the Trustee shall
select the Securities of the Series to be redeemed in any manner that the
Trustee deems fair and appropriate. The Trustee shall make the selection from
Securities of the Series outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities of
the Series that have denominations larger than $1,000. Securities of the Series
and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in
other denominations pursuant to Section 2.2.10, the minimum principal
denomination for each Series and integral multiples thereof. Provisions of this
Indenture that apply to Securities of a Series called for redemption also apply
to portions of Securities of that Series called for redemption.
20
SECTION 3.3 Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, Officers' Certificate or by a supplemental indenture hereto, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed.
The notice shall identify the Securities of the Series to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided
in Section 3.3, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. A notice of
redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the
redemption date.
SECTION 3.5 Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.
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SECTION 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV.
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on each Series of Securities on the dates and in
the manner provided in such Series. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company, holds as of 10:00 a.m. Eastern Time on the date due money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at
the rate equal to 1% per annum in excess of the then applicable interest rate
on the Series of Securities to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest, if any, (without regard to any applicable
grace period) at the same rate to the extent lawful.
SECTION 4.2 Reports.
Whether or not required by the rules and regulations of the
SEC, so long as any Securities are outstanding, the Company shall furnish to
the Trustee and to the Holders of Securities (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports. In addition, whether or not
required by the rules and regulations of the SEC, the Company shall file a copy
of all such information and reports with the SEC for public availability
(unless the SEC will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request.
22
SECTION 4.3 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year (which fiscal year, as of the date hereof,
ends on December 31), an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under the Securities of such Series and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge
the Company have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and the Securities of such Series and are
not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Securities is
prohibited or if such event has occurred, a description of the event and what
action the Company 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 4.2 above shall be
accompanied by a written statement of the Company'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 that would lead them to believe
that the Company has violated any provisions of Article Four or Article Five
hereof, each as amended, modified or supplemented or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.4 Stay, Extension and Usury Laws.
The Company 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; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any
23
such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such
law has been enacted.
SECTION 4.5 Continued Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate, partnership, limited liability company or other existence, and
the corporate, partnership, limited liability company or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and any of its respective Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the respective Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the
Securities.
SECTION 4.6 Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of Securities.
ARTICLE V.
SUCCESSORS
SECTION 5.1 Merger, Consolidation, or Sale of Assets
The Company shall indicate the covenant regarding merger,
consolidation or sale of assets for a particular Series of Securities by Board
Resolution, Officers' Certificate or by a supplemental indenture hereto.
SECTION 5.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease,
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conveyance or other disposition, the provisions of this Indenture referring to
the "Company" shall refer instead to the successor corporation and not to the
Company), and may exercise every right and power of the Company under this
Indenture with the same effect as if such successor person had been named as
the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal of and interest, if any,
on the Securities except in the case of a sale of all of the Company's assets
that meets the requirements of Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, Officers' Certificate or supplemental indenture
hereto, it is provided that such Series shall not have the benefit of said
Event of Default:
(a) a default for 30 days in the payment when due of interest
on the Securities (whether or not prohibited by Article 12 hereof);
(b) a default in payment when due of the principal of or
premium, if any, on the Securities (whether or not prohibited by
Article 12 hereof);
(c) the failure by the Company for 60 days after notice to
comply with any of its other agreements in this Indenture or the
Securities;
(d) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any
of its Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date hereof, which
default (a) is caused by a failure to pay principal of or premium,
if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case,
the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates an
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amount in excess of an amount specified by a Board Resolution, an
Officers' Certificate or a supplemental indenture hereto.
(e) the failure by the Company or any of its Subsidiaries to
pay final judgments aggregating in excess of an amount specified by a
Board Resolution, an Officers' Certificate or a supplemental indenture
hereto, which judgments are not paid, discharged or stayed for a
period of 60 days;
(f) the Company, any Significant Subsidiary of the Company or
any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) generally is not paying its debts as they
become due;
(g) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(a) is for relief against the Company, any of its
Significant Subsidiaries or any group of its Subsidiaries
that, taken together, would constitute a Significant
Subsidiary in an involuntary case;
(b) appoints a Custodian of the Company, any of its
Significant Subsidiaries, or any group of its Subsidiaries
that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property
of the Company, any of its Significant Subsidiaries or any
group of its Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or
(c) orders the liquidation of the Company, any of its
Significant Subsidiaries or any group of its Subsidiaries
that, taken together, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days; or
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(i) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.17.
An Event of Default shall not be deemed to have occurred
under clause (d) of this Section 6. 1 until the Trustee notifies the Company,
or the Holders of at least 25% in principal amount of the then outstanding
Series of such Securities notify the Company and the Trustee, of the Default
and the Company does not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
In the case of any Event of Default pursuant to the
provisions of this Section 6. 1 occurring by reason of any action (or inaction)
willfully taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Securities of such Series
pursuant to any optional redemption provisions, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Securities, anything in this Indenture or in such
Series of Securities to the contrary notwithstanding.
No Event of Default with respect to a particular Series of
Securities (except with respect to subsections (f) and (g) above) necessarily
constitutes an Event of Default with respect to any other Series of Securities.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or State law for the relief of debtors.
SECTION 6.2 Acceleration of Maturity; Rescission and Annulment. If any
Event of Default (other than an Event of Default specified in clauses (f) and
(g) of Section 6.1 hereof) occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Securities of such
Series may declare all the Securities of such Series to be due and payable
immediately. Upon any such declaration, the Securities of such Series shall
become due and payable immediately. Notwithstanding the foregoing, if an Event
of Default specified in clauses (f) or (g) of Section 6.1 hereof occurs with
respect to the Company, any of its Significant Subsidiaries or any group of its
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
such an amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then outstanding
Securities of such Series by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
Series (except
27
nonpayment of principal or interest that has become due solely because of the
acceleration) have been cured or waived.
In addition, the Company shall promptly notify holders of
Senior Debt if payment of the Securities is accelerated because of an Event of
Default.
SECTION 6.3 [Intentionally left blank]
SECTION 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 7.7; and
Second: To the payment of the amounts then due and unpaid
for principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
SECTION 6.7 Limitation on Suits.
No Holder of any Security of any Series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
29
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 6.8 Unconditional Right of Holders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 6.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in
Section 2.8, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
30
SECTION 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.12 Control by Holders.
The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
SECTION 6.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the outstanding Securities of any Series may on behalf of the Holders of all
the Securities of such Series waive any past Default hereunder with respect to
such Series and its consequences, except a Default in the payment of the
principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in a principal amount of the outstanding
Securities of any Series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
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SECTION 6.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption, on
or after the redemption date).
ARTICLE VII.
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise 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 man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(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 Officers' Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers'
Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers'
Certificates and Opinions of Counsel to determine whether or
not they conform to the requirements of this Indenture.
32
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section.
(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.
(iii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it
with respect to Securities of any Series in good faith in
accordance with the direction of the Holders of a majority
in principal amount of the outstanding Securities of such
Series relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the
Securities of such Series.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraph (a), (b) and
(c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity satisfactory to it
against any loss, liability or expense.
(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 Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to risk its own funds or otherwise incur any financial
liability in the performance of any of its duties, 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 is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of
care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
SECTION 7.2 Rights of Trustee.
(a) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or
33
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care. No Depository shall be deemed an agent of the Trustee
and the Trustee shall not be responsible for any act or omission by
any Depository.
(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.
(e) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
an Affiliate with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
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SECTION 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing
with respect to the Securities of any Series and if it is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each
Securityholder of the Securities of that Series notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible
Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of
interest on any Security of any Series, the Trustee may withhold the notice if
and so long as its corporate trust committee or a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Securityholders of that Series.
SECTION 7.6 Reports by Trustee to Holders.
Within 60 days after ________ in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear on
the Security Register a brief report dated as of such ________, in accordance
with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and each stock
exchange on which the Securities of that Series are listed. The Company shall
promptly notify the Trustee when Securities of any Series are listed on any
stock exchange.
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost
of defending itself) against any loss, liability or expense incurred by it
except as set forth in the next paragraph in the performance of its duties
under this Indenture as Trustee or Agent. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
35
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through negligence or
bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee, except that held in trust
to pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
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.
The Trustee may resign with respect to the Securities of one
or more Series by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and the Company. The Company
may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall 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 Company.
If a successor Trustee with respect to the Securities of any
one or more Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring
36
Trustee, the Company or the Holders of at least 10% in principal amount of the
Securities of the applicable Series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or
more Series fails to comply with Section 7.10, any Securityholder of the
applicable Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, 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
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
SECTION 7.9 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 successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
37
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8. 2 or 8. 3 hereof be applied to all outstanding
Securities upon compliance with the conditions set forth below in this Article
8.
SECTION 8.2 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding
Securities of any Series on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities of such Series, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.5 hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all of its other Obligations under such Securities
of such Series and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities when
such payments are due, (b) the Company's obligations with respect to such
Securities under Article 2 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8,
the Company may exercise its option under this Section 8.2 notwithstanding the
prior exercise of its option under Section 8.3 hereof.
SECTION 8.3 Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released
from their obligations under the covenants contained in Articles 4 and 5 hereof
with respect to the outstanding Securities on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or
38
act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Securities shall not be
deemed "outstanding" for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1(c) hereof, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.1 hereof of the option applicable to this Section 8.3, subject to
the satisfaction of the conditions set forth in Section 8.4 hereof, Sections
6.1(d) through 6.1(g) hereof shall not constitute Events of Default.
SECTION 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders of the Securities,
cash in United States dollars, non-callable Government Securities, or
a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest,
if any, on the outstanding Securities on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Securities are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2
hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
39
(c) in the case of an election under Section 8.3
hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) or insofar as Section 6.1(f) or (g) hereof
are concerned, at any time in the period ending on the 91st day after
the date of deposit (or greater period of time in which any such
deposit of trust funds may remain subject to bankruptcy or insolvency
laws insofar as those apply to the deposit by the Company);
(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that, as of the date of such
opinion, (A) the trust funds will not be subject to the rights of
holders of Indebtedness other than the Securities and (B) assuming no
intervening bankruptcy of the Company between the date of deposit and
the 91st day following the deposit, the trust funds will not be
subject to the effects of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
under any applicable United States or state law;
(g) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Securities over
the other creditors of the Company, or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company
or others; and
(h) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
40
SECTION 8.5 Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the
outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal,
premium and interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.4 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.6 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium
or interest on any Security and remaining unclaimed for two years after such
principal, and premium or interest has become due and payable shall be paid to
the Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as a secured
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company mail or cause to be published once,
in the New York Times and The Wall Street Journal (national editions), notice
that such money remains unclaimed and that, after a date specified therein,
41
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.2 or 8.3 hereof, as the case may be; provided, however, that, if
either the Company makes any payment of principal of, premium or interest on
any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form
and terms and conditions of Securities of any Series as
permitted by this Indenture;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more Series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
42
(g) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under
the TIA.
SECTION 9.2 With Consent of Holders.
The Company and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for the securities of such
Series), for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of each Series
affected by such waiver by notice to the Trustee (including consents obtained
in connection with a purchase of, or tender offer or exchange offer for the
securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such
consent approves the substance thereof. After a supplemental indenture or
waiver under this section becomes effective, the Company shall mail to the
Holders of Securities affected thereby a notice briefly describing the
supplemental indenture or waiver. Any failure by the Company to mail or publish
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture or waiver.
SECTION 9.3 Limitations.
Without the consent of each Securityholder affected, an
amendment or waiver may not:
(a) change the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of
interest (including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of
any Security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous
obligation;
43
(d) reduce the principal amount of Discount Securities
payable upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of
the principal of or interest, if any, on any Security (except a
rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the
outstanding Securities of such Series and a waiver of the
payment default that resulted from such acceleration);
(f) make the principal of or interest, if any, on any
Security payable in any currency other than that stated in the
Security;
(g) make any change in Sections 6.8, 6.13, or 9.3 (this
sentence); or
(h) waive a redemption payment with respect to any
Security or change any of the provisions with respect to the
redemption of any Securities.
SECTION 9.4 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
SECTION 9.5 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment or waiver
becomes effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (a) through (g) of Section 9.3. In that
case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.6 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee
shall authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
44
SECTION 9.7 Trustee Protected.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee shall sign
all supplemental indentures, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall control.
SECTION 10.2 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company:
SFX Broadcasting, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: General Counsel
if to the Trustee:
--------------------------
--------------------------
--------------------------
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or
45
communication to a Securityholder of any Series or any defect in it shall not
affect its sufficiency with respect to other Securityholders of that or any
other Series.
If a notice or communication is mailed or published in the
manner provided above, within the time prescribed, it is duly given, whether or
not the Securityholder receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
SECTION 10.3 Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA
ss. 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 10.4 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.5 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 ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
46
(c) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 10.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 10.7 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers'
Certificate or supplemental indenture hereto for a particular Series, a "Legal
Holiday" is any day that is not a Business Day. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
SECTION 10.8 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
SECTION 10.9 Counterparts.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
SECTION 10.10 Governing Laws.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE SECURITIES.
47
SECTION 10.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.12 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 10.13 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 10.14 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 hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
ARTICLE XI.
SINKING FUNDS
SECTION 11.1 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for
by the terms of the Securities of any Series is herein referred to as a
"mandatory sinking fund payment" and any other amount provided for by the terms
of Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
48
SECTION 11.2 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such Series to be made
pursuant to the terms of such Securities (1) deliver outstanding Securities of
such Series to which such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund redemption) and
(2) apply as credit Securities of such Series to which such sinking fund
payment is applicable and which have been redeemed either at the election of
the Company pursuant to the terms of such Series of Securities (except pursuant
to any mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions pursuant to the terms of
such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an
Officers' Certificate with respect thereto, not later than 15 days prior to the
date on which the Trustee begins the process of selecting Securities for
redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities in lieu of cash payments
pursuant to this Section 11.2, the principal amount of Securities of such
Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken,
and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that
the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the
Company.
SECTION 11.3 Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the
Board Resolution, Officers' Certificate or supplemental indenture in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers' Certificate or supplemental indenture in respect of a
particular Series of Securities) before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
49
payment date in the manner specified in Section 3.2 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
ARTICLE 12
SUBORDINATION
SECTION 12.1. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security
agrees, that the Indebtedness evidenced by the Security is subordinated in
right of payment, to the extent and in the manner provided in this Article 12,
to the prior payment in full of all Senior Debt (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.
SECTION 12.2. Certain Definitions.
"Designated Senior Debt" will be defined by Board Resolution,
Officers' Certificate or supplemental indenture.
"Distribution" will be defined by Board Resolution, Officers'
Certificate or supplemental indenture.
"Representative" will be defined by Board Resolution, Officers'
Certificate or supplemental indenture.
"Senior Bank Debt" will be defined by Board Resolution,
Officers' Certificate or supplemental indenture.
"Senior Debt" will be defined by Board Resolution, Officers'
Certificate or supplemental indenture.
SECTION 12.3. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
respective property, or in an assignment for the benefit of creditors or any
marshaling of the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment
in full of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any
50
such proceeding at the rate specified in the applicable Senior Debt, whether
or not an allowable claim) before the Holders of Securities shall be entitled
to receive any payment with respect to the Securities (except that Holders may
receive (i) securities that are subordinated to at least the same extent as
the Securities to (a) Senior Debt and (b) any securities issued in exchange
for Senior Debt and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.1 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full, any distribution to which
the Holders of Securities would be entitled but for this Article 12 shall be
made to holders of Senior Debt (except that Holders may receive (i) securities
that are subordinated to at least the same extent as the Securities to (a)
Senior Debt and (b) any securities issued in exchange for Senior Debt and (ii)
payments and other distributions made from any defeasance trust created
pursuant to Section 8.1 hereof), as their interests may appear.
Subject to Section 7.7, in the event that, notwithstanding
the foregoing provisions of this Section, the Trustee receives payment or
distribution of assets of the Company of any kind or character, before all the
Senior Debt is paid in full, then and in such event such payment or
distribution of assets shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay the Senior Debt in full.
SECTION 12.4. Default on Designated Senior Debt.
(a) The Company may not make any payment or distribution to
the Trustee or any Holder in respect of the Securities and may not acquire from
the Trustee or any Holder any Securities for cash or property (other than (1)
securities that are subordinated to at least the same extent as the Securities
to (A) Senior Debt and (B) any securities issued in exchange for Senior Debt
and (2) payments and other distributions made from any defeasance trust created
pursuant to Section 8.1 hereof) until all principal and other Obligations with
respect to the Senior Debt have been paid in full if:
(i) a default in the payment of the principal of,
premium, if any, or interest on Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Designated Senior Debt; or
(ii) a default, other than a default specified in
Section 12.4(a)(i) hereof, on Designated Senior Debt occurs and is
continuing with respect to Designated Senior Debt that then permits
holders of the Designated Senior Debt as to which such default relates
to accelerate its maturity and the Trustee receives a notice of the
default (a
51
"Payment Blockage Notice") from a Person who may give it
pursuant to Section 12.12 hereof. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section 12.4 unless and until (I) at
least 360 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice and (II) all scheduled
payments of principal, premium, and interest on the Securities that
have come due (other than by reason of acceleration) have been paid in
full in cash. No default described in this paragraph (ii) that existed
or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice.
(b) The Company may and shall resume payments on and
distributions in respect of the Securities and may acquire them:
(i) in the case of a default described in Section
12.4(a)(i) hereof, upon the date on which the default is cured
or waived, and
(ii) in the case of a default referred to in Section
12.4(a)(ii) hereof, the earlier of the date on which such
default is cured or waived or 179 days after the date on which
the applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Debt has been accelerated, if
this Article 12 otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
SECTION 12.5. Acceleration of Securities.
If payment of the Securities is accelerated because of an
Event of Default, the Company shall promptly notify holders of Senior Debt of
the acceleration.
SECTION 12.6. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any
payment of any Obligations with respect to the Securities at a time when the
Trustee or such Holder, as applicable, has actual knowledge that such payment
is prohibited by Section 12.4 hereof, such payment shall be held by the Trustee
or such Holder, in trust for the benefit of, and shall be paid forthwith over
and delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt.
52
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 12, except if such
payment is made as a result of the willful misconduct or gross negligence of
the Trustee.
SECTION 12.7. Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Securities to violate this Article 12, but
failure to give such notice shall not affect the subordination of the
Securities to the Senior Debt as provided in this Article 12.
SECTION 12.8. Subrogation.
After all Senior Debt is paid in full and until the
Securities are paid in full, Holders shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Securities) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt. A distribution made under this Article
12 to holders of Senior Debt that otherwise would have been made to Holders of
Securities is not, as between the Company and Holders of Securities, a payment
by the Company on the Senior Debt.
SECTION 12.9. Relative Rights.
This Article 12 defines the relative rights of Holders of
Securities and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of
Securities, the obligation of the Company, which is absolute
and unconditional, to pay principal of and interest and
Liquidated Damages, if any, on the Securities in accordance
with their terms;
(2) affect the relative rights of Holders of Securities
and creditors of the Company other than their rights in
relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of Securities from
exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders and owners of Senior
Debt to receive distributions and payments otherwise payable to
Holders of Securities.
53
If the Company fails because of this Article 12 to pay
principal of or interest on a Security on the due date, the failure is still a
Default or Event of Default.
SECTION 12.10. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or any Holder of Securities or by
the failure of the Company or any Holder of Securities to comply with this
Indenture.
SECTION 12.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 12, the Trustee and the Holders of Securities shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Securities for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 12.
SECTION 12.12. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 12 or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution by the Trustee, and the Trustee and the Paying Agent
may continue to make payments on the Securities, unless the Trustee shall have
received at its Corporate Trust Office at least five Business Days prior to the
date of such payment written notice of facts that would cause the payment of
any Obligations with respect to the Securities to violate this Article 12. Only
the Company or a Representative may give such notice. Nothing in this Article
12 shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not the Trustee. Any
Agent may do the same with like rights.
54
SECTION 12.13. Authorization to Effect Subordination.
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 12, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.9 hereof at least 30 days before the expiration of the
time to file such claim, the agent under the Credit Agreement (as will be
defined by Board Resolution, officers' Certificate or supplemental indenture)
(or in the absence of such agent, the lender) is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.
SECTION 12.14. Amendments.
The provisions of this Article 12 shall not be amended or
modified without the written consent of the holders of all Senior Debt.
55
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
Attest: SFX Broadcasting, Inc.
By:_______________________________
Xxxxxx F.X. Sillerman
Chief Executive Officer
[Trustee_________________________]
By: ________________________________
-------------------------------
-------------------------------
56
SFX BROADCASTING, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of ______________ __, 199_
SS.310 (A)(1) ...................................................................... 7.10
(A)(2) ...................................................................... 7.10
(A)(3) ...................................................................... NOT APPLICABLE
(A)(4) ...................................................................... NOT APPLICABLE
(A)(5) ...................................................................... 7.10
(B) ...................................................................... 7.10
SS.311 (A) ...................................................................... 7.11
(B) ...................................................................... 7.11
(C) ...................................................................... NOT APPLICABLE
SS.312 (A) ...................................................................... 2.6
(B) ...................................................................... 10.3
(C) ...................................................................... 10.3
SS.313 (A) ...................................................................... 7.6
(B)(1) ...................................................................... 7.6
(B)(2) ...................................................................... 7.6
(C)(1) ...................................................................... 7.6
(D) ...................................................................... 7.6
SS.314 (A) ...................................................................... 4.2, 4.3
(B) ...................................................................... NOT APPLICABLE
(C)(1) ...................................................................... 10.4
(C)(2) ...................................................................... 10.4
57
(C)(3) ...................................................................... NOT APPLICABLE
(D) ...................................................................... NOT APPLICABLE
(E) ...................................................................... 10.5
(F) ...................................................................... NOT APPLICABLE
SS.315 (A) ...................................................................... 7.1
(B) ...................................................................... 7.5
(C) ...................................................................... 7.1
(D) ...................................................................... 7.1
(E) ...................................................................... 6.14
SS.316 (A) ...................................................................... 2.10, 6.2
(A)(1)(A) ...................................................................... 6.12
(A)(1)(B) ...................................................................... 6.13
(B) ...................................................................... 6.8
SS.317 (A)(1) ...................................................................... 6.3
(A)(2) ...................................................................... 6.4
(B) ...................................................................... 2.5
SS.318 (A) ...................................................................... 10.1
-----------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be part of the Indenture.
