<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 16, 1998
REGISTRATION NO. 333-40127
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------
<TABLE>
<S> <C>
JACOR COMMUNICATIONS, INC. JACOR COMMUNICATIONS COMPANY
(Exact name of registrant as specified in (Exact name of registrant as specified in
its charter) its charter)
</TABLE>
<TABLE>
<S> <C> <C> <C>
DELAWARE 31-0978313 FLORIDA 59-2054850
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF IDENTIFICATION OF IDENTIFICATION
INCORPORATION OR NO.) INCORPORATION OR NO.)
ORGANIZATION) ORGANIZATION)
</TABLE>
<TABLE>
<S> <C> <C>
BROADCAST FINANCE, INC. OHIO 31-1390698
CINE FILMS, INC. CALIFORNIA 95-2945526
CINE GUARANTORS, INC. CALIFORNIA 95-2677644
CINE GUARANTORS II, INC. CALIFORNIA 95-2960196
CINE GUARANTORS II, LTD. CANADA NOT APPLICABLE
CINE MOBILE SYSTEMS INT'L. N.V. ANTILLE NOT APPLICABLE
CINE MOVIL S.A. DE C.V. MEXICO NOT APPLICABLE
CITICASTERS CO. OHIO 31-1081002
GACC-N26LB, INC. DELAWARE 31-1231527
GREAT AMERICAN MERCHANDISING GROUP, INC. NEW YORK 13-2658721
GREAT AMERICAN TELEVISION PRODUCTIONS, INC. CALIFORNIA 31-1019819
INMOBILIARIA RADIAL, S.A. DE C.V. MEXICO NOT APPLICABLE
JACOR BROADCASTING CORPORATION OHIO 31-1363232
JACOR BROADCASTING OF ATLANTA, INC. GEORGIA 31-1133504
JACOR BROADCASTING OF CHARLESTON, INC. DELAWARE 57-1030503
JACOR BROADCASTING OF COLORADO, INC. COLORADO 31-1212116
JACOR BROADCASTING OF DENVER, INC. CALIFORNIA 33-0250362
JACOR BROADCASTING OF FLORIDA, INC. FLORIDA 31-1102108
JACOR BROADCASTING OF KANSAS CITY, INC. DELAWARE 43-1722735
JACOR BROADCASTING OF LAS VEGAS, INC. DELAWARE 61-1263208
JACOR BROADCASTING OF LAS VEGAS II, INC. DELAWARE 31-1506631
JACOR BROADCASTING OF LOUISVILLE, INC. DELAWARE 61-1257881
JACOR BROADCASTING OF LOUISVILLE II, INC. DELAWARE 31-1506626
JACOR BROADCASTING OF SALT LAKE CITY, INC. DELAWARE 87-0546502
JACOR BROADCASTING OF SALT LAKE CITY II, INC. DELAWARE 31-1506618
JACOR BROADCASTING OF SAN DIEGO, INC. DELAWARE 31-1440011
JACOR BROADCASTING OF SARASOTA, INC. FLORIDA 31-1468564
JACOR BROADCASTING OF ST. LOUIS, INC. DELAWARE 33-0294761
JACOR BROADCASTING OF TAMPA BAY, INC. FLORIDA 31-1234979
JACOR BROADCASTING OF TOLEDO, INC. CALIFORNIA 30-0200806
JACOR BROADCASTING OF YOUNGSTOWN, INC. OHIO 34-1308506
JACOR CABLE, INC. KENTUCKY 31-1273897
JACOR LICENSEE OF CHARLESTON, INC. DELAWARE 57-1031405
JACOR LICENSEE OF KANSAS CITY, INC. DELAWARE 43-1724459
JACOR LICENSEE OF LAS VEGAS, INC. DELAWARE 88-0345737
JACOR LICENSEE OF LAS VEGAS II, INC. DELAWARE 31-1506613
JACOR LICENSEE OF LOUISVILLE, INC. DELAWARE 61-1289758
JACOR LICENSEE OF LOUISVILLE II, INC. DELAWARE 31-1506609
JACOR LICENSEE OF SALT LAKE CITY, INC. DELAWARE 87-0546823
JACOR LICENSEE OF SALT LAKE CITY II, INC. DELAWARE 31-1506621
JACOR/PREMIERE HOLDING, INC. DELAWARE 95-4523968
JBSL, INC. MISSOURI 43-1735433
LOCATION PRODUCTIONS, INC. CALIFORNIA 95-2556702
LOCATION PRODUCTIONS II, INC. CALIFORNIA 95-2945537
MULTIVERSE ACQUISITION CORP. DELAWARE 61-1316387
NOBLE BROADCAST CENTER, INC. CALIFORNIA 33-0189045
NOBLE BROADCAST GROUP, INC. DELAWARE 33-0215206
NOBLE BROADCAST HOLDINGS, INC. DELAWARE 33-0492627
NOBLE BROADCAST LICENSES, INC. CALIFORNIA 34-1794221
NOBLE BROADCAST OF SAN DIEGO, INC. CALIFORNIA 95-3230874
NOBRO, S.C. MEXICO NOT APPLICABLE
NOVA MARKETING GROUP, INC. CALIFORNIA 33-0578898
NSN NETWORK SERVICES, LTD. DELAWARE 31-1125479
PREMIERE RADIO NETWORKS, INC. DELAWARE 95-4083971
RADIO-ACTIVE MEDIA, INC. DELAWARE 31-1511358
SPORTS RADIO BROADCASTING, INC. CALIFORNIA 33-0525378
SPORTS RADIO, INC. CALIFORNIA 95-4350343
</TABLE>
(REGISTRANTS
CONTINUED ON NEXT PAGE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(REGISTRANTS CONTINUED FROM PREVIOUS PAGE)
<TABLE>
<S> <C> <C>
THE SY FISCHER COMPANY AGENCY, INC. CALIFORNIA 95-2792659
VTTV PRODUCTIONS CALIFORNIA 31-0924795
WHOK, INC. OHIO 34-1092716
<CAPTION>
(STATE OR OTHER
JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR IDENTIFICATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) NUMBER)
- -------------------------------------------------------------------------- --------------------------- ---------------------
</TABLE>
50 EAST RIVERCENTER BOULEVARD
12TH FLOOR
COVINGTON, KENTUCKY 41011
(606) 655-2267
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
------------------------
R. CHRISTOPHER WEBER
JACOR COMMUNICATIONS, INC.
50 EAST RIVERCENTER BOULEVARD
12TH FLOOR
COVINGTON, KENTUCKY 41011
(606) 655-2267
(606) 655-9345 (FAX)
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES OF COMMUNICATIONS TO:
RICHARD G. SCHMALZL, ESQ.
DOUGLAS D. ROBERTS, ESQ.
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
CINCINNATI, OHIO 45202
(513) 621-6464
(513) 651-3836 (FAX)
------------------------
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Post-Effective Amendment becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
investment reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THIS POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE UPON THE ORDER OF THE COMMISSION PURSUANT TO SECTION 8(C) OF THE
SECURITIES ACT OF 1933, AS AMENDED.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR COMMUNICATIONS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT AND TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS /s/ R. CHRISTOPHER WEBER
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
CHIEF EXECUTIVE OFFICER AND DIRECTOR SENIOR VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND ASSISTANT SECRETARY
/s/ ROBERT L. LAWRENCE* /s/ ROD F. DAMMEYER*
- -------------------------------------- --------------------------------------
Robert L. Lawrence Rod F. Dammeyer
PRESIDENT, CHIEF OPERATING OFFICER AND DIRECTOR
DIRECTOR
/s/ SAMUEL ZELL* /s/ F. PHILIP HANDY*
- -------------------------------------- --------------------------------------
Samuel Zell F. Philip Handy
CHAIRMAN OF THE BOARD AND DIRECTOR DIRECTOR
/s/ SHELI Z. ROSENBERG* /s/ MARC LASRY*
- -------------------------------------- --------------------------------------
Sheli Z. Rosenberg Marc Lasry
VICE CHAIRMAN AND DIRECTOR DIRECTOR
/s/ JOHN W. ALEXANDER* /s/ MAGGIE WILDEROTTER*
- -------------------------------------- --------------------------------------
John W. Alexander Maggie Wilderotter
DIRECTOR DIRECTOR
/s/ PETER C. B. BYNOE*
- --------------------------------------
PETER C. B. BYNOE
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR COMMUNICATIONS COMPANY
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
ASSISTANT SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16th, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS /s/ R. CHRISTOPHER WEBER
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT SENIOR VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND DIRECTOR
/s/ JON M. BERRY
- --------------------------------------
Jon M. Berry
DIRECTOR
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
BROADCAST FINANCE, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE FILMS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE GUARANTORS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE GUARANTORS II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE GUARANTORS II, LTD.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE MOBILE SYSTEMS INT'L. N.V.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CINE MOVIL S.A. DE C.V.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
CITICASTERS CO.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
GACC-N26LB, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
GREAT AMERICAN MERCHANDISING GROUP, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
INMOBILIARIA RADIAL, S.A. DE C.V.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ R. CHRISTOPHER WEBER
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
/s/ JON M. BERRY
- --------------------------------------
Jon M. Berry
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING CORPORATION
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF ATLANTA, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF CHARLESTON, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF COLORADO, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF DENVER, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF FLORIDA, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF KANSAS CITY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF LAS VEGAS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF LAS VEGAS II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF LOUISVILLE, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF LOUISVILLE II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-25
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF SALT LAKE CITY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF SALT LAKE CITY II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF SAN DIEGO, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-28
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF SARASOTA, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-29
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF ST. LOUIS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-30
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF TAMPA BAY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-31
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF TOLEDO, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-32
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR BROADCASTING OF YOUNGSTOWN, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-33
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR CABLE, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF CHARLESTON, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-35
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF KANSAS CITY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-36
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF LAS VEGAS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-37
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF LAS VEGAS II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-38
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF LOUISVILLE, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-39
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF LOUISVILLE II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-40
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF SALT LAKE CITY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-41
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR LICENSEE OF SALT LAKE CITY II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-42
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JACOR/PREMIERE HOLDING, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-43
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
JBSL, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-44
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
LOCATION PRODUCTIONS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-45
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
LOCATION PRODUCTIONS II, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-46
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
MULTIVERSE ACQUISITION CORP.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ STEPHEN C. LEHMAN* /s/ DANIEL M. YUKELSON*
- -------------------------------------- --------------------------------------
Stephen C. Lehman Daniel M. Yukelson
PRESIDENT AND CHIEF EXECUTIVE OFFICER SECRETARY, SENIOR VICE PRESIDENT OF
FINANCE AND CHIEF FINANCIAL OFFICER
/s/ JON M. BERRY
- ------------------------------------
Jon M. Berry
DIRECTOR
*BY: /S/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-47
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBLE BROADCAST CENTER, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-48
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBLE BROADCAST GROUP, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-49
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBLE BROADCAST HOLDINGS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-50
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBLE BROADCAST LICENSES, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-51
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBLE BROADCAST OF SAN DIEGO, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-52
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOBRO, S.C.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ R. CHRISTOPHER WEBER
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
/s/ JON M. BERRY
- --------------------------------------
Jon M. Berry
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-53
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NOVA MARKETING GROUP, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-54
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
NSN NETWORK SERVICES, LTD.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-55
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
PREMIERE RADIO NETWORKS, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ STEPHEN C. LEHMAN* /s/ DANIEL M. YUKELSON*
- -------------------------------------- --------------------------------------
Stephen C. Lehman Daniel M. Yukelson
PRESIDENT AND CHIEF EXECUTIVE OFFICER SECRETARY, SENIOR VICE PRESIDENT OF
FINANCE AND
CHIEF FINANCIAL OFFICER
/s/ JON M. BERRY
- --------------------------------------
Jon M. Berry
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-56
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
RADIO-ACTIVE MEDIA, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-57
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
SPORTS RADIO BROADCASTING, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-58
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
SPORTS RADIO, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-59
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
THE SY FISCHER COMPANY AGENCY, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-60
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
VTTV PRODUCTIONS
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-61
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to Form S-3 Registration Statement No. 333-40127 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on this 16th day of January, 1998.
WHOK, INC.
By: /s/ JON M. BERRY
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER AND
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Form S-3 Registration Statement No. 333-40127
has been signed on January 16, 1998 by the following persons in the capacities
indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY MICHAELS* /s/ JON M. BERRY
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. CHRISTOPHER WEBER
- --------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ JON M. BERRY
----------------------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT TO
A POWER OF ATTORNEY PREVIOUSLY FILED.
II-62
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- --------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Underwriting Agreement.*
2.1 Agreement and Plan of Merger dated February 12, 1996 among Citicasters Inc. ("Citicasters"), Jacor
Communications, Inc. ("Jacor") and JCAC, Inc. Incorporated by reference to Exhibit 2.1 to Jacor's
Current Report on Form 8-K dated February 27, 1996.**
2.2 Warrant Agreement dated as of September 18, 1996 between Jacor and KeyCorp Shareholder Services, Inc.,
as warrant agent. Incorporated by reference to Exhibit 4.1 to Jacor's Current Report on Form 8-K dated
October 3, 1996.**
2.3 Supplemental Agreement dated as of September 18, 1996 between Jacor and KeyCorp Shareholder Services,
Inc., as warrant agent. Incorporated by reference to Exhibit 4.2 of Jacor's Current Report on Form 8-K
dated October 3, 1996.**
2.4 Registration Rights Agreement dated as of August 5, 1996 among Jacor, JCAC, Inc., Great American
Insurance Company, American Financial Corporation, American Financial Enterprises, Inc., Carl H.
Lindner, The Carl H. Lindner Foundation, and S. Craig Lindner. Incorporated by reference to Exhibit 2.22
to Jacor's Post-Effective Amendment No. 1 on Form S-3 to Form S-4 (File No. 333-6639).**
2.5 Stock Purchase and Stock Warrant Redemption Agreement dated as of February 20, 1996 among Jacor,
Prudential Venture Partners II, L.P., Northeast Ventures, II, John T. Lynch, Frank A. DeFrancesco,
Thomas R. Jiminez, William R. Arbenz, CIHC, Incorporated, Bankers Life Holding Corporation and Noble
Broadcast Group, Inc. ("Noble") (omitting exhibits not deemed material or filed separately in executed
form). [Prudential and Northeast are sometimes referred to hereafter as the "Class A Stockholders";
Lynch, DeFrancesco, Jiminez and Arbenz as the "Class B Stockholders"; and CHIC and Bankers Life as the
Warrant Sellers.] Incorporated by reference to Exhibit 2.1 to Jacor's Current Report on Form 8-K dated
March 6, 1996, as amended.**
2.6 Investment Agreement dated as of February 20, 1996, among Jacor, Noble and the Class B Stockholders
(omitting exhibits not deemed material). Incorporated by reference to Exhibit 2.2 to Jacor's Current
Report on Form 8-K dated March 6, 1996, as amended.**
2.7 Asset Exchange Agreement dated as of September 26, 1996 between Citicasters Co. and Pacific and Southern
Company, Inc. (omitting schedules and exhibits not deemed material). Incorporated by reference to
Exhibit 2.1 to Jacor's Current Report on Form 8-K dated October 11, 1996.**
2.8 Agreement and Plan of Merger dated as of October 8, 1996 ("Regent Merger Agreement") between Jacor and
Regent Communications, Inc. (omitting schedules and exhibits not deemed material). Incorporated by
reference to Exhibit 2.1 to Jacor's Current Report on Form 8-K dated October 23, 1996, as amended.**
2.9 Warrant Agreement dated as of February 27, 1997 between Jacor and KeyCorp Shareholder Services, Inc., as
warrant agent (included as Exhibit B to Regent Merger Agreement). Incorporated by reference to Exhibit
4.1 to Jacor's Current Report on Form 8-K dated May 5, 1997.**
2.10 Registration Rights Agreement dated as of October 8, 1996 among Jacor and the parties listed in Schedule
I thereto (included as Exhibit I to Regent Merger Agreement). Incorporated by reference to Exhibit 2.4
to Jacor's Current Report on Form 8-K dated October 23, 1996, as amended.**
2.11 Form of Plan and Agreement of Merger between Jacor and New Jacor, Inc. Incorporated by reference to
Annex VII to the Proxy Statement/Information Statement/Prospectus to Jacor's Form S-4 Registration
Statement (File No. 333-6639).**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- --------------------------------------------------------------------------------------------------------
2.12 Asset Purchase Agreement dated as of March 17, 1997 among JCC, EFM Programming, Inc., EFM Media
Management, Inc., EFM Publishing, Inc. and PAM Media, Inc. Incorporated by reference to Exhibit 2.1 to
Jacor's Current Report on Form 8-K dated March 21, 1997, as amended.**
<C> <S>
2.13 Agreement and Plan of Merger dated as of April 7, 1997 among Jacor, Jacor Communications Company
("JCC"), PRN Holding Acquisition Corp. and Premiere Radio Networks, Inc. (omitting schedules and
exhibits not deemed material). Incorporated by reference to Exhibit 2.1 to Jacor's Current Report on
Form 8-K dated April 8, 1997, as amended.**
2.14 Shareholders' Agreement dated as of April 7, 1997 by and among Jacor, JCC, Archon Communications, Inc.
("Archon"), the stockholders of Archon and certain shareholders of Premiere (omitting schedules and
exhibits not deemed material). Incorporated by reference to Exhibit 2.2 to Jacor's Current Report on
Form 8-K dated April 8, 1997, as amended.**
2.15 Stock Purchase Agreement dated as of April 7, 1997 among Jacor, JCC, Archon Communications Partners LLC
and News America Holdings Incorporated (omitting schedules and exhibits not deemed material).
Incorporated by reference to Exhibit 2.3 to Jacor's Current Report on Form 8-K dated April 8, 1997, as
amended.**
2.16 Purchase Agreement dated June 11, 1997, by and among JCC, Jacor, the Subsidiary Guarantors named therein
(the "Subsidiary Guarantors"), Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities,
Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. Incorporated by reference to Exhibit 2.1 to
Jacor's Current Report on Form 8-K dated June 26, 1997, as amended.**
2.17 Registration Rights Agreement dated June 17, 1997 among JCC, Jacor, the Subsidiary Guarantors,
Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities, Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated. Incorporated by reference to Exhibit 4.2 to Jacor's Current Report on Form
8-K dated June 26, 1997, as amended.**
2.18 Agreement of Sale dated December 19, 1997 by and among Citicasters Co., Nationwide Mutual Insurance
Company, Nationwide Communications Inc., Employers Insurance of Wausau a Mutual Company, San Diego Lotus
Corp. and The Beak and Wire Corporation. Incorporated by reference to Exhibit 2.1 to Jacor's Current
Report on Form 8-K dated November 4, 1997, as amended.**
4.1 Form of Indenture. Incorporated by reference to Exhibit 4.1 to Jacor's Form S-3 Registration Statement
(File No. 333-19291).**
4.2 Indenture dated as of June 12, 1996 between Jacor and The Bank of New York for Jacor's Liquid Yield
Option Notes Due 2011. Incorporated by reference to Exhibit 4.23 to Jacor's Form S-4 Registration
Statement (File No. 333-6639).**
4.3 Indenture dated as of June 12, 1996 among Jacor, JCAC, Inc. and First Trust of Illinois, National
Association for JCAC, Inc.'s 10 1/8% Senior Subordinated Notes due 2006 and Jacor's Guaranty thereof.
Incorporated by reference to Exhibit 4.24 to Jacor's Form S-4 Registration Statement (File No.
333-6639).**
4.4 Effectiveness Agreement dated as of September 16, 1997 among JCC, the Lenders named therein (the
"Lenders"), The Chase Manhattan Bank, as Adminstrative Agent, Banque Paribas, as Documentation Agent,
and Bank of America National Trust and Savings Association (as successor by merger to Bank of America,
Illinois), as Syndication Agent (omitting schedules and exhibits not deemed material). Incorporated by
reference to Exhibit 4.1 to Jacor's Current Report on Form 8-K dated September 30, 1997.**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- --------------------------------------------------------------------------------------------------------
4.5 Amended and Restated Credit Agreement dated as of September 16, 1997 ("Credit Agreement") among JCC, the
Lenders, Bank of America National Trust and Savings Association (as successor by merger to Bank of
America, Illinois), as Syndication Agent, Banque Paribas, as Documentation Agent, and The Chase
Manhattan Bank, as Administrative Agent (omitting schedules and exhibits not deemed material) (included
as Exhibit A to Effectiveness Agreement). Incorporated by reference to Exhibit 4.2 to Jacor's Current
Report on Form 8-K dated September 30, 1997.**
<C> <S>
4.6 Security Agreement dated as of June 12, 1996 by and between JCAC, Inc. and Chemical Bank as
Administrative Agent. Incorporated by reference to Exhibit 4.28 to Jacor's Form S-4 Registration
Statement (File No. 333-6639).**
4.7 Parent Guaranty dated as of June 12, 1996 and as amended and restated as of September 16, 1997 by Jacor
in favor of The Chase Manhattan Bank (as successor by merger to Chemical Bank), as Administrative Agent,
for the Lenders and any Interest Rate Hedge Providers (as defined in the Credit Agreement). Incorporated
by reference to Exhibit 4.3 to Jacor's Current Report on Form 8-K dated September 30, 1997.**
4.8 Pledge Agreement dated as of June 12, 1996 by and between Jacor and Chemical Bank, as Administrative
Agent for the Agents (as defined in the Credit Agreement), the Lenders and any Interest Rate Hedge
Providers. Incorporated by reference to Exhibit 4.30 to Jacor's Form S-4 Registration Statement (File
No. 333-6639).**
4.9 Indenture dated as of December 17, 1996 among JCC, Jacor, the Subsidiary Guarantors named therein (the
"Subsidiary Guarantors") and The Bank of New York for JCC's 9 3/4% Senior Subordinated Notes due 2006
and Jacor's and the Subsidiary Guarantors' Guaranty thereof. Incorporated by reference to Exhibit 4.9 to
Jacor's Form S-3 Registration Statement (File No. 333-19291).**
4.10 Form of Deposit Agreement. Incorporated by reference to Exhibit 4.10 to Jacor's Form S-3 Registration
Statement (File No. 333-19291).**
4.11 Stock Option Agreement dated as of June 23, 1993 between Jacor and Rod F. Dammeyer covering 10,000
shares of Jacor's common stock. (1) Incorporated by reference to Exhibit 4.3 to Jacor's Quarterly Report
on Form 10-Q dated August 13, 1993.**
4.12 Stock Option Agreement dated as of December 15, 1994 between Jacor and Rod F. Dammeyer covering 5,000
shares of Jacor's common stock. (2) Incorporated by reference to Exhibit 4.23 to Jacor's Quarterly
Report on Form 10-Q dated August 13, 1993.**
4.13 Indenture dated as of June 17, 1997 among JCC, Jacor, the Subsidiary Guarantors and The Bank of New York
for JCC's 8 3/4% Senior Subordinated Notes due 2007 and Jacor's and the Subsidiary Guarantors' Guaranty
thereof. Incorporated by reference to Exhibit 4.1 to Jacor's Current Report on Form 8-K dated June 26,
1997, as amended.**
4.14 Form of 8 3/4% Series A Senior Subordinated Note due 2007 (included as part of Indenture listed as
Exhibit 4.13 which is incorporated by reference to Exhibit 4.1 to Jacor's Current Report on Form 8-K
dated June 26, 1997, as amended).**
4.15 Form of 8 3/4% Series B Senior Subordinated Note due 2007 (included as part of Indenture listed as
Exhibit 4.13 which is incorporated by reference to Exhibit 4.1 to Jacor's Current Report on Form 8-K
dated June 26, 1997, as amended).**
4.16 Reaffirmation Agreement dated as of September 16, 1997 among The Chase Manhattan Bank, as Administrative
Agent for the benefit of the Agents, the Issuing Banks, the Lenders and any Interest Rate Hedge
Providers (each as defined in the Credit Agreement), Jacor, JCC and each subsidiary of JCC. Incorporated
by reference to Exhibit 4.4 to Jacor's Current Report on Form 8-K dated September 30, 1997.**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- --------------------------------------------------------------------------------------------------------
4.17 First Supplemental Indenture dated as of September 16, 1997 (Supplemental to Indenture dated as of June
12, 1996) between JCC, Jacor and First Trust National Association for JCC's 10 1/8% Senior Subordinated
Notes due 2006 and Jacor's Guaranty thereof. Incorporated by reference to Exhibit 4.5 to Jacor's Current
Report on Form 8-K dated September 30, 1997.**
<C> <S>
4.18 First Supplemental Indenture dated as of September 16, 1997 (Supplemental to Indenture dated as of
December 17, 1996) between JCC, Jacor, the Subsidiary Guarantors named therein, and The Bank of New York
for JCC's 9 3/4% Senior Subordinated Notes due 2006 and Jacor's and the Subsidiary Guarantors'
Guarantees thereof. Incorporated by reference to Exhibit 4.6 to Jacor's Current Report on Form 8-K dated
September 30, 1997.**
4.19 First Supplemental Indenture dated as of September 16, 1997 (Supplemental to Indenture dated as of June
17, 1997) between JCC, Jacor, the Subsidiary Guarantors named therein, and The Bank of New York for
JCC's 8 3/4% Senior Subordinated Notes due 2007 and Jacor's and the Subsidiary Guarantors' Guarantees
thereof. Incorporated by reference to Exhibit 4.7 to Jacor's Current Report on Form 8-K dated September
30, 1997.**
4.20 Form of Indenture for LYONs.
4.21 Form of Indenture for Notes.
5.1 Opinion of Graydon, Head & Ritchey.***
12.1 Computation of Ratio of Earnings to Fixed Charges.***
23.1 Consent of Coopers & Lybrand L.L.P.***
23.2 Consent of Ernst & Young LLP.***
23.3 Consent of William T. Ogden, Inc.***
23.4 Consent of Graydon, Head & Ritchey (included in opinion of counsel filed as Exhibit 5.1).***
24.1 Powers of Attorney of directors and officers signing this Registration Statement are part of the
Signature Pages.***
24.2 Power of Attorney of Randy Michaels.***
25.1 Statement of Eligibility of The Bank of New York as Trustee on Form T-1 for the LYONs.
25.2 Statement of Eligibility of The Bank of New York as Trustee on Form T-1 for the Notes.
27.1 Financial Data Schedule of Jacor. Incorporated by reference to Jacor's Annual Report on Form 10-K for
the year ended December 31, 1996, as amended.**
</TABLE>
- ------------------------
(*) To be filed, as applicable to a particular offering of Securities, as an
Exhibit to a Current Report on Form 8-K and incorporated by reference
thereto.
(**) Incorporated by reference.
(***) Previously filed.
(1) Identical documents were entered into with John W. Alexander, F. Philip
Handy and Marc Lasry.
(2) Identical documents were entered into with John W. Alexander, F. Philip
Handy, Marc Lasry and Sheli Z. Rosenberg. Pursuant to substantially
identical documents, (a) a grant of 5,000 stock options was made to each
of these five individuals in February 1996, and (b) a grant of 5,000
stock options was made to each of these five individuals and to Samuel
Zell, Peter C.B. Bynoe and Maggie Wilderotter in April 1997.
<PAGE>
---------------------------------
---------------------------------
JACOR COMMUNICATIONS, INC.
LIQUID YIELD OPTION-TM- NOTES DUE 20[ ]
(ZERO COUPON -- SENIOR)
--------------------
INDENTURE
Dated as of January [ ], 1998
--------------------
The Bank of New York,
Trustee
---------------------------------
---------------------------------
<PAGE>
TABLE OF CONTENTS
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
<TABLE>
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C>
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. . . . . . . .6
SECTION 1.04. Rules of Construction. . . . . . . . . . . . . . . . . . . . . .7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . .8
SECTION 2.03. Registrar, Paying Agent and Conversion Agent . . . . . . . . . .9
SECTION 2.04. Paying Agent To Hold Money and Securities in Trust . . . . . . .9
SECTION 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.08. Outstanding Securities; Determinations
of Holders' Action . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.09. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.11. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notices to Trustee. . . . . . . . . . . . . . 16
SECTION 3.02. Selection of Securities to Be Redeemed . . . . . . . . . . . . 16
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . 17
SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 18
SECTION 3.06. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 18
SECTION 3.07. Conversion Arrangement on Call for Redemption. . . . . . . . . 18
SECTION 3.08. Purchase of Securities at the Option of the Holder . . . . . . 19
SECTION 3.09. Purchase of Securities at Option of the Holder upon
Change in Control. . . . . . . . . . . . . . . . . . . . . . . 25
ii
<PAGE>
SECTION 3.10. Effect of Purchase Notice or Change in Control Purchase
Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.11. Deposit of Purchase Price or Change in Control Purchase
Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12. Securities Purchased in Part . . . . . . . . . . . . . . . . . 30
SECTION 3.13. Covenant to Comply with Securities Laws upon Purchase
of Securities. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14. Repayment to the Company . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.02. SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.03. Compliance Certificate; Notice of Defaults . . . . . . . . . . 32
SECTION 4.04. Further Instruments and Acts . . . . . . . . . . . . . . . . . 32
SECTION 4.05. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 32
SECTION 4.06. Calculation of Original Issue Discount . . . . . . . . . . . . 33
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. . . . . . . . . . . 33
SECTION 5.02. Successor Company Substituted. . . . . . . . . . . . . . . . . 34
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 37
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . 38
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . 38
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 38
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.12. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.13. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . 40
iii
<PAGE>
ARTICLE 7
TRUSTEE
SECTION 7.01. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.02. Individual Rights of Trustee . . . . . . . . . . . . . . . . . 42
SECTION 7.03. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.04. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.05. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . 42
SECTION 7.06. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 43
SECTION 7.07. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.08. Successor Trustee by Merger. . . . . . . . . . . . . . . . . . 44
SECTION 7.09. Eligibility; Disqualification. . . . . . . . . . . . . . . . . 44
SECTION 7.10. Preferential Collection of Claims Against Company. . . . . . . 44
SECTION 7.11. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities . . . . . . . . . . . . . 45
SECTION 8.02. Repayment to the Company . . . . . . . . . . . . . . . . . . . 45
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . 46
SECTION 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . . . 46
SECTION 9.03. Compliance with Trust Indenture Act. . . . . . . . . . . . . . 47
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions . . . . 47
SECTION 9.05. Notation on or Exchange of Securities. . . . . . . . . . . . . 48
SECTION 9.06. Trustee to Sign Supplemental Indentures. . . . . . . . . . . . 48
SECTION 9.07. Effect of Supplemental Indentures. . . . . . . . . . . . . . . 48
ARTICLE 10
CONVERSION
SECTION 10.01. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . 48
SECTION 10.02. Conversion Procedure . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.03. Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.04. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.05. Company to Provide Stock . . . . . . . . . . . . . . . . . . . 51
SECTION 10.06. Adjustment for Change in Capital Stock . . . . . . . . . . . . 52
SECTION 10.07. Adjustment for Rights Issue. . . . . . . . . . . . . . . . . . 52
SECTION 10.08. Adjustment for Other Distributions . . . . . . . . . . . . . . 54
SECTION 10.09. When Adjustment May Be Deferred. . . . . . . . . . . . . . . . 56
SECTION 10.10. When No Adjustment Required. . . . . . . . . . . . . . . . . . 56
iv
<PAGE>
SECTION 10.11. Notice of Adjustment . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.12. Voluntary Increase . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.13. Notice of Certain Transactions . . . . . . . . . . . . . . . . 57
SECTION 10.14. Reorganization of Company; Special Distributions . . . . . . . 58
SECTION 10.15. Company Determination Final. . . . . . . . . . . . . . . . . . 59
SECTION 10.16. Trustee's Adjustment Disclaimer. . . . . . . . . . . . . . . . 59
SECTION 10.17. Simultaneous Adjustments . . . . . . . . . . . . . . . . . . . 59
SECTION 10.18. Successive Adjustments . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . 59
SECTION 11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.03 Communication by Holders with Other Holders. . . . . . . . . . 60
SECTION 11.04 Certificate and Opinion as to Conditions Precedent . . . . . . 61
SECTION 11.05 Statements Required in Certificate or Opinion. . . . . . . . . 61
SECTION 11.06 Separability Clause. . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.07 Rules By Trustee, Paying Agent, Conversion Agent and
Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.08 Legal Holiday. . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.09 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . 62
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.12 Multiple Originals . . . . . . . . . . . . . . . . . . . . . . 62
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A FORM OF FACE OF LYON. . . . . . . . . . . . . . . . . . . . . . . . . .A-1
</TABLE>
v
<PAGE>
CROSS-REFERENCE TABLE*
TIA Indenture
Section Section
------- ---------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07; 7.09
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.02; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.04; 11.02
[(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01]
[(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01]
(e) . . . . . . . . . . . . . . . . . . . .6.11 316(a)(last sentence) 2.08
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.01
_____________________
* Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
N.A. means Not Applicable
<PAGE>
INDENTURE, dated as of January [ ], 1998, between JACOR
COMMUNICATIONS, INC., a Delaware corporation ("COMPANY"), and The Bank of New
York, a New York banking corporation, as trustee (the "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 Company's Liquid Yield
Option-TM- Notes due [ ] (Zero Coupon -- Senior) (the "SECURITIES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. 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", when used with respect to any specified person, means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" or "BOARD" means, with respect to any matter,
either the board of directors of the Company or any committee of such board
duly authorized, with respect to such matter, to exercise the powers of such
board.
"BUSINESS DAY" means each day of the year on which banking institutions
in The City of New York are not required or authorized to close.
"CAPITALIZED LEASE OBLIGATIONS" of any person means the obligations of
such person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes
1
<PAGE>
in accordance with GAAP, and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) capital stock issued by that corporation.
"CASH" or "CASH" means such coin or currency of The United States of
America as at any time of payment is legal tender for the payment of public
and private debts.
"COMMON STOCK" means the Common Stock, no par value per share, of the
Company as it exists on the date of this Indenture or any other shares of
capital stock of the Company into which such common stock shall be
reclassified or changed.
"COMPANY" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by either of its Chairman or Vice Chairman
of the Board, its President, any Vice President, its Treasurer, or any
Assistant Treasurer, and by its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"CONSOLIDATED NET ASSETS" means the total amount of assets of the
Company and its Subsidiaries (less applicable depreciation, amortization and
other valuation reserves), after deducting therefrom all current liabilities
of the Company and its Subsidiaries (other than intercompany liabilities and
the current portion of long-term debt and Capitalized Lease Obligations), all
as set forth on the latest consolidated balance sheet of the Company prepared
in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary the
accounts of which are consolidated with those of the Company as of such date
for public financial reporting purposes.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
- ------------
TM Trademark of Merrill Lynch & Co., Inc.
2
<PAGE>
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date hereof.
"GLOBAL SECURITY" means a Security that contains the paragraph and the
schedule referred to in footnotes 1 and 2, respectively, in the form of
Security attached hereto as Exhibit A.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"INDENTURE" means this Indenture as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"ISSUE PRICE" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is
sold as set forth on the face of the Security.
"OFFICER" means either Chairman or Vice Chairman of the Board, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 11.04 and 11.05, (i) signed in the name of
the Company by either its Chairman of the Board, Vice Chairman of the Board,
President, any Vice President, Treasurer, any Assistant Treasurer,
Controller, or any Assistant Controller, and (ii) attested to by its
Secretary or any Assistant Secretary, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 11.04 and 11.05, if applicable, rendered by legal
counsel who may be (i) an employee of, or counsel to, the Company or (ii)
other counsel designated by the Company and reasonably acceptable to the
Trustee.
3
<PAGE>
"ORIGINAL ISSUE DISCOUNT" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security means the principal
amount due at the Stated Maturity of the Security as set forth on the face of
the Security.
"PRINCIPAL PROPERTY" means (i) a parcel of improved or unimproved real
estate or other physical facility or depreciable asset of the Company or a
Subsidiary, the net book value of which on the date of determination exceeds
2% of Consolidated Net Assets and (ii) any group of parcels of real estate,
other physical facilities, and/or depreciable assets of the Company and/or
its Subsidiaries, the net book value of which, when sold in one or a series
of related Sale and Lease-Back Transactions or securing debt issued in
respect of such Principal Properties, on the date of determination exceeds 2%
of the Consolidated Net Assets. For purposes of the foregoing, "related Sale
and Lease-back Transactions" refers to any two or more such contemporaneous
transactions which are on substantially similar terms with substantially the
same parties.
"REDEMPTION DATE" or "REDEMPTION DATE" shall mean the date specified for
redemption of any of the Securities in accordance with the terms of the
Securities and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in paragraph 5 of the Securities.
"SALE AND LEASE-BACK TRANSACTIONS" means any arrangement with any lessor
(other than the Company), providing for the leasing to the Company for a
period of more than three years (including renewals at the option of the
lessee) of any Principal Property that has been or is to be sold or
transferred by the Company to such lessor or to any other person, to which
funds have been or are to be advanced by such lessor or other person on the
security of the leased property.
"SALE PRICE" of a single share of Common Stock on any date means the
closing per share sale price (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case the
average of the average bid and the average ask prices) on such date as
reported in composite transactions for the principal United States securities
exchange on which the Common Stock is traded or, if the Common Stock is not
listed on a United States national or regional stock exchange, as reported by
the National Association of Securities Dealers Automated Quotation System.
4
<PAGE>
"SEC" means the Securities and Exchange Commission.
"SECURITIES" or "SECURITY" means any of the Company's Liquid Yield
Option-TM- Notes due 20[ ] (Zero Coupon -- Senior), as amended or
supplemented from time to time in accordance with the terms hereof, issued
under this Indenture.
"SECURITIES CUSTODIAN" means the Registrar as custodian with respect to
the Securities in global form, or any successor entity thereto.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"STATED MATURITY", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of
such Security is due and payable.
"SUBSIDIARY" means (i) a corporation, a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by
one or more subsidiaries of the Company or by the Company and one or more
subsidiaries of the Company, (ii) a partnership in which the Company or a
subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a subsidiary of the Company or the Company
and one or more subsidiaries of the Company, directly or indirectly, at the
date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, and as in effect on the date of this Indenture,
except as provided in Section 9.03.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Sale Price is open for
trading or quotation.
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"TRUSTEE" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"ZELL/CHILMARK" means Zell/Chilmark Fund L.P. and any person who
controls, is controlled by or is under common control with Zell/Chilmark;
provided that for purposes of this definition
5
<PAGE>
"control" means the beneficial ownership of more than 50% of the total voting
power of a person normally entitled to vote in the election of directors,
managers or trustees, as applicable, of a person.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"AGENT MEMBERS". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.01(a)
"ASSOCIATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09(a)
"AVERAGE SALE PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
"BENEFICIAL OWNER" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09(a)
"CHANGE IN CONTROL". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09(a)
"CHANGE IN CONTROL PURCHASE DATE". . . . . . . . . . . . . . . . . . . . . . .3.09(a)
"CHANGE IN CONTROL PURCHASE NOTICE". . . . . . . . . . . . . . . . . . . . . .3.09(c)
"CHANGE IN CONTROL PURCHASE PRICE" . . . . . . . . . . . . . . . . . . . . . .3.09(a)
"COMPANY NOTICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(e)
"COMPANY NOTICE DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(e)
"CONVERSION AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"CONVERSION DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.02
"CONVERSION RATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
"DTC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"EXCHANGE ACT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(d)
"EX-DIVIDEND TIME" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
"EXTRAORDINARY CASH DIVIDEND". . . . . . . . . . . . . . . . . . . . . . . . . .10.08
"LEGAL HOLIDAY". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.08
"MARKET PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(d)
"NOTICE OF DEFAULT". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"OPTION" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
"PAYING AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"PURCHASE DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(a)
"PURCHASE NOTICE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(a)
"PURCHASE PRICE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(a)
"REGISTRAR". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"SECURITIES ACT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.08(d)
"TIME OF DETERMINATION". . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made
6
<PAGE>
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.
All other TIA terms used in this Indenture that are defined by the TIA
or defined by TIA reference to another statute or regulation have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time in The United States of America;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
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ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit
A, which is a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage
(provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company and the Trustee). Each Security shall be
dated the date of its authentication.
The Securities are being offered and sold by the Company pursuant to a
Purchase Agreement, dated January [ ], 1998, between the Company and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Purchase Agreement").
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall be
executed by the Company by either of its Chairman or Vice Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the Issue Date of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original issue
in an aggregate Principal Amount of up to $[ ] upon a
Company Order without any further action by the Company; PROVIDED, HOWEVER,
that in the event that the Company sells any Securities pursuant to the
option (the "OPTION") granted pursuant to Section 2 of the Purchase
Agreement, then the Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount of up to
$[ ] plus up to $[ ] aggregate
Principal Amount of Securities sold pursuant to the Option upon a Company
Order. The aggregate Principal Amount of Securities
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outstanding at any time may not exceed the amount set forth in the foregoing
sentence, subject to the proviso set forth therein, except as provided in
Section 2.07.
The Securities shall be issued only in registered form without coupons and
only in denominations of $1,000 Principal Amount and only integral multiples
thereof.
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The
Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange ("REGISTRAR"), an office or
agency where Securities may be presented for purchase or payment ("PAYING
AGENT") and an office or agency where Securities may be presented for
conversion ("CONVERSION AGENT"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any additional
paying agent. The term Conversion Agent includes any additional conversion
agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar other than the
Trustee. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee and the Holders
of the name and address of any such agent and of any change in the office or
agency referred to in Section 4.05. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to
Section 7.06. The Company or any Subsidiary or an Affiliate of either of
them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion Agent
and Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities Custodian
with respect to the Global Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. In
accordance with Section 4.05 and except as otherwise provided herein, prior to
12:00 noon, New York City time, or on each due date of payments in respect of
any Security, the Company shall deposit with the Paying Agent a sum of money or,
if permitted by the terms hereof, securities sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Securityholders or the Trustee all money and securities held by
the Paying Agent for the making of payments in respect of the Securities and
shall notify the Trustee of any default by the Company in
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making any such payment. At any time during the continuance of any default
by the Company in making any payments in respect of the Securities, the
Paying Agent shall, upon the written request of the Trustee, forthwith pay to
the Trustee all money and securities so held in trust. If the Company, a
Subsidiary or an Affiliate of any of them acts as Paying Agent, it shall
segregate the money and securities held by it as Paying Agent and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money and securities held by it to the Trustee and to account for any
money and securities disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money and securities.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee
(i) at least semiannually on June 1 and December 1 a list of the names and
addresses of Securityholders dated within 15 days of the date on which the
list is furnished and (ii) 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.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. Upon surrender for
registration of transfer of any Definitive Security, together with a written
instrument of transfer satisfactory to the Trustee duly executed by the
Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03 or at the office or agency referred to
in Section 4.05, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Securities of any authorized
denomination or denominations, of a like aggregate Principal Amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Definitive Securities from
the Securityholder requesting such transfer or exchange (other than any
exchange of a temporary Security for a Definitive Security not involving any
change in ownership).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Definitive 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 Registrar of a
Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Registrar, together with written
instructions of the Holder directing the Registrar to make, or to direct the
Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, then the Registrar shall cancel such
Definitive Security and cause, or direct the Securities
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Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security
to be increased accordingly. If no Global Securities are then outstanding,
the Company shall issue and the Trustee shall authenticate a new Global
Security 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 Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Definitive Security.
Upon receipt by the Registrar of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security, and, if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the form
set forth on the reverse of the Security)(all of which may be submitted by
facsimile), then the Registrar or the Securities Custodian, at the
direction of the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of the Global Security
to be reduced and, following such reduction, the Company will execute and,
upon receipt of an authentication order in the form of an Officers'
Certificate, the Trustee or the Trustee's authenticating agent will
authenticate and deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar. The Registrar
shall deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
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(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF DEPOSITARY. If
at any time:
(i) the Depositary for the Securities notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee and
the Registrar in writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive
Securities, will, or its authenticating agent will, authenticate and deliver
Definitive 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 SECURITY. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, such Global
Security shall be returned to or retained and cancelled by the Registrar. At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
cancelled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Registrar or the Securities Custodian, at the direction of
the Registrar, to reflect such reduction.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES. At the option
of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate Principal
Amount, upon surrender of the Securities to be exchanged, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) Definitive Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed), (b) any Securities in respect of which a
Purchase Notice or a Change in Control Purchase Notice has been given and not
withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or (c) any Securities for a period of 15
days before the mailing of a notice of redemption.
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Successive registrations and registrations of transfers and exchanges as
aforesaid may be made from time to time as desired, and each such registration
shall be noted on the register for the Securities.
Any Registrar appointed pursuant to Section 2.03 hereof shall provide to
the Trustee such information as the Trustee may reasonably require in connection
with the delivery by such Registrar of Securities upon transfer or exchange of
Securities.
No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
SECTION 2.07. REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each 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 written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, 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 benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities
authenticated by the Trustee (including any Security represented by a Global
Security) except for those cancelled by it, those delivered to it for
cancellation, mutilated, destroyed, lost or stolen Securities for which the
Trustee has authenticated and delivered a new Security in lieu therefor
pursuant to Section 2.07, those paid pursuant to Section 2.07, those
reductions in the interest in a Global Security effected by the Registrar
hereunder and those described in this Section 2.08 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security; PROVIDED, HOWEVER, that in determining whether
the Holders of the requisite Principal Amount of Securities have given or
concurred in any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change
in Control Purchase Date, or on Stated Maturity, money or, if permitted by
the terms hereof including, without limitation, Section 3.08, securities
sufficient to pay the Securities payable on that date, then on and after that
date such Securities shall cease to be outstanding and Original Issue
Discount and interest, if any, on such Securities shall cease to accrue and
all other rights of the Holder shall terminate (other than the right to
receive the applicable Redemption Price, Purchase Price or Change in Control
Purchase Price, as the case may be, upon delivery of the Security in
accordance with the terms of this Indenture); PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made.
If a Security is converted in accordance with Article 10, then from and
after the Conversion Date such Security shall cease to be outstanding and
Original Issue Discount and interest, if any, shall cease to accrue on such
Security.
SECTION 2.09. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other
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variations as the Officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation
of definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the
office or agency of the Company designated for such purpose pursuant to
Section 2.03 or 4.05, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like Principal Amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 2.10. CANCELLATION. All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article 3, conversion
pursuant to Article 10, registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. The Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation or that any Holder
has converted pursuant to Article 10. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be delivered to the Company.
SECTION 2.11. CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
PROVIDED that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
CUSIP numbers.
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ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at its
option, may redeem the Securities for cash in accordance with the provisions
set forth in paragraphs 5 and 7 of the Securities. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify
the Trustee in writing of the Redemption Date, the Principal Amount of
Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 at least 45 days but not more than 60 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee). If
fewer than all the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and given to the Trustee,
which record date shall not be less than ten days after the date of notice to
the Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed by lot or by any other method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall
make the selection at least 30 but not more than 60 days before the
Redemption Date from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the Principal
Amount of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in Principal Amounts of
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be), solely for
purposes of determining the aggregate Principal Amount of Securities to be
redeemed by the Company, to be the portion selected for redemption.
Securities that have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as outstanding for the purpose of such
selection. Nothing in this Section 3.02 shall affect the right of any Holder
to convert any Security pursuant to Article 10 before the termination of the
conversion right with respect thereto.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a Redemption Date, the Trustee, in the name and at the expense
of the Company, shall cause notice of redemption to be mailed, first-class
postage prepaid, to each Holder of Securities to be redeemed
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at his address as it appears on the list of Securityholders maintained
pursuant to Section 2.05. At the Company's written request, the Trustee
shall, in the name and at the expense of the Company, cause a similar notice
to be published at least once in an Authorized Newspaper in each place of
payment.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date (upon which the Redemption Price shall be
paid);
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent and
of the office or agency referred to in Section 4.05;
(5) that Securities called for redemption may be converted at any time
before the close of business on the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to
collect the Redemption Price;
(8) the CUSIP number of the Securities;
(9) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and Principal Amounts of the particular Securities
to be redeemed; and
(10) that, unless the Company defaults in payment of the Redemption
Price, Original Issue Discount on Securities called for redemption and
interest, if any, will cease to accrue on and after the Redemption Date.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that
the Company makes such request at least three Business Days prior to such
notice of redemption.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date stated in the notice and at the Redemption Price therefor except
for Securities that are converted in accordance
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with the terms of this Indenture. Upon the later of the Redemption Date and
the date such Securities are surrendered to the Paying Agent or at the office
or agency referred to in Section 4.05, such Securities called for redemption
shall be paid at the Redemption Price therefor.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to or on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which prior
thereto have been delivered by the Company to the Trustee for cancellation.
The Paying Agent shall as promptly as practicable return to the Company any
money, with interest, if any, thereon (subject to the provisions of Section
7.01(f)), not required for that purpose because of conversion of Securities
pursuant to Article 10. If such money is then held by the Company or a
Subsidiary or an Affiliate of the Company in trust and is not required for
such purpose it shall be discharged from such trust.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder, a new Security in an authorized
denomination equal in Principal Amount to the unredeemed portion of the
Security surrendered.
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange, in
lieu of redemption, for the purchase and conversion of any Securities called
for redemption by an agreement with one or more investment bankers or other
purchasers to purchase all or a portion of such Securities by paying to the
Trustee in trust for the Securityholders whose Securities are to be so
purchased, on or before the close of business on the Redemption Date, an
amount that, together with any amounts deposited with the Trustee by the
Company for redemption of such Securities, is not less than the Redemption
Price, together with interest, if any, accrued to the Redemption Date, of
such Securities. Notwithstanding anything to the contrary contained in this
Article 3, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers, but no such agreement shall relieve the Company of its obligation
to pay such Redemption Price and interest, if any. If such an agreement is
entered into, any Securities not duly surrendered for conversion by the
Holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 10)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the Redemption Date, subject to payment of the above
amount as aforesaid. The Trustee shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it for
purchase and conversion in the same manner as it would moneys deposited with
it by the Company for the redemption of Securities. Without the Trustee's
prior written consent, no arrangement between the Company and such purchasers
for the
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purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as
set forth in this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense arising
out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Company and such purchasers,
including the costs and expenses incurred by the Trustee in the defense of
any claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations
under this Indenture.
SECTION 3.08. PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER.
(a) GENERAL. Securities shall be purchased by the Company pursuant to
paragraph 6 of the Securities as of [ ] and [ ]
(each, a "PURCHASE DATE"), at the purchase price specified therein (each, a
"PURCHASE PRICE"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or agency referred
to in Section 4.05 by the Holder of a written notice of purchase (a
"PURCHASE NOTICE") at any time from the opening of business on the date
that is 20 Business Days prior to a Purchase Date until the close of
business on such Purchase Date stating:
(A) the certificate number of the Security that the Holder will
deliver to be purchased;
(B) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or
an integral multiple thereof;
(C) that such Security shall be purchased on the Purchase Date
pursuant to the terms and conditions specified in this Indenture and
in paragraph 6 of the Securities; and
(D) if the Company elects pursuant to Section 3.08(b) to pay the
Purchase Price on such Purchase Date, in whole or in part, in shares
of Common Stock, but such portion of the Purchase Price to be paid in
Common Stock is ultimately to be paid in cash because any condition in
Section 3.08(d) is not satisfied, such Holder elects (i) to withdraw
such Purchase Notice as to some or all of the Securities to which it
relates (stating the Principal Amount and certificate numbers of the
Securities as to which such withdrawal shall relate), or (ii) to
receive cash in respect of the Purchase Price for all Securities
subject to such Purchase Notice; and
(2) delivery of such Security prior to, on or after the Purchase Date
(together with all necessary endorsements) to the Paying Agent at the
offices of the Paying Agent or to the office or agency referred to in
Section 4.05, such delivery being a condition to receipt by the
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Holder of the Purchase Price therefor; PROVIDED, HOWEVER, that such
Purchase Price shall be so paid pursuant to this Section 3.08 only if the
Security so delivered conforms in all respects to the description thereof
in the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any written notice of
withdrawal delivered by such Holder pursuant to the terms of Section 3.10, fails
to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1) above, such Holder shall be deemed to have
elected to receive cash in respect of the Purchase Price otherwise payable in
Common Stock.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions hereof
shall be consummated by the delivery of the consideration to be received by the
Holder promptly following the later of the Purchase Date and the time of
delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or the office or agency referred to in Section 4.05 the
Purchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw at any time prior to the close of business on the Purchase Date such
Purchase Notice by delivery of a written notice of withdrawal to the Paying
Agent or such office or agency in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
(b) COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF PURCHASE PRICE. The
Securities to be purchased pursuant to Section 3.08(a) may be paid for, at the
election of the Company, in cash or Common Stock, or in any combination of cash
and Common Stock, subject to the conditions set forth in this Section 3.08. The
Company shall designate, in the notice from the Company delivered pursuant to
Section 3.08(e), whether the Company will purchase the Securities for cash or
Common Stock, and, if a combination thereof, the percentages of the Purchase
Price of Securities in respect of which it will pay in cash or Common Stock;
PROVIDED that the Company will pay cash for fractional interests in Common
Stock. For purposes of determining the existence of potential fractional
interests, all Securities subject to purchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to be
presented). Each Holder whose Securities are purchased pursuant to this Section
3.08 shall receive the same percentage of cash or Common Stock in payment of the
Purchase Price for such Securities, except (i) as provided in Section 3.08(d)
with regard to the payment of cash in lieu of fractional shares of Common Stock
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and (ii) in the event that the Company is unable to purchase the Securities
of a Holder or Holders for Common Stock because any necessary qualifications
or registrations of the Common Stock under applicable state securities laws
cannot be obtained, the Company may purchase the Securities of such Holder or
Holders for cash. The Company may not change its election with respect to
the consideration (or components or percentages of components thereof) to be
paid once the Company has given notice thereof to Securityholders except
pursuant to this Section 3.08(b) or Section 3.08(d).
At least five Business Days before the Company Notice Date (as defined
below), the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company;
(ii) the information required by Section 3.08(e);
(iii) that the conditions to such manner of payment set forth in
Section 3.08(d) have or will be complied with; and
(iv) whether the Company desires the Trustee to give the notice
required by Section 3.08(e).
(c) PURCHASE WITH CASH. On each Purchase Date, at the option of the
Company, the Principal Amount of the Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be purchased by the Company with cash equal to the aggregate
Purchase Price of such Securities.
(d) PAYMENT BY COMMON STOCK. On each Purchase Date, at the option of the
Company, the Principal Amount of the Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be purchased by the Company by the issuance of a number of shares
of Common Stock equal to the quotient obtained by dividing (i) the amount of
cash to which the Securityholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Securities in cash by (ii) the Market Price (as defined
below) of a share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in payment of
the Purchase Price. Instead the Company will pay cash for the current market
value of the fractional share. The current market value of a fraction of a
share shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent, with one-half cent being rounded
upward. It is understood that if a Holder elects to have more than one Security
purchased, the
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number of shares of Common Stock shall be based on the aggregate amount of
Securities to be purchased.
The Company's right to exercise its election to purchase the Securities
pursuant to this Section through the issuance of shares of Common Stock shall be
conditioned upon:
(i) the Company's not having given notice of an election to pay
entirely in cash and its giving of timely notice of election to
purchase all or a specified percentage of the Securities with Common
Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act
of 1933, as amended (the "SECURITIES ACT") and the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), in each case if required
for the initial issuance thereof;
(iii)any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be issued by the Company in payment of the
Purchase Price in respect of Securities have been duly authorized and,
when issued and delivered pursuant to the terms of this Indenture in
payment of the Purchase Price in respect of the Securities, will be
validly issued, fully paid and nonassessable and shall be free of any
preemptive rights and any lien or adverse claim (provided that such
Opinion of Counsel may state that, insofar as it relates to the
absence of such preemptive rights, liens and adverse claims, it is
given upon the best knowledge of such counsel), and, in the case of
such Officers' Certificate, that conditions (i), (ii) and (iii) above
have been satisfied and, in the case of such Opinion of Counsel, that
conditions (ii) and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Principal Amount of Securities and the
Sale Price of a share of Common Stock on each of the seven Business Days prior
to the Purchase Date. The Company may elect to pay in Common Stock only if the
information necessary to calculate the Market Price is reported in THE WALL
STREET JOURNAL or another daily newspaper of national circulation. If such
conditions are not satisfied prior to or on the Purchase Date and the Company
elected to purchase the Securities pursuant to this Section 3.08 through the
issuance of shares of Common Stock, the Company shall pay, without further
notice, the Purchase Price in cash.
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The "MARKET PRICE" means the average of the Sale Price of the Common Stock
for the five Trading Day period ending on the third Trading Day prior to the
related Purchase Date, appropriately adjusted to take into account the actual
occurrence, during the seven Trading Days preceding such Purchase Date, of any
event described in Section 10.06, 10.07 or 10.08; SUBJECT, HOWEVER, to the
conditions set forth in Sections 10.09 and 10.10.
(e) NOTICE OF ELECTION. The Company shall send notices of its election
(the "COMPANY NOTICE") to purchase with cash or Common Stock or any combination
thereof to the Holders (and to beneficial owners as required by applicable law)
in the manner provided in Section 3.03. The Company Notice shall be sent to
Holders (and to beneficial owners as required by applicable law) on a date not
less than 20 Business Days prior to the Purchase Date (such date not less than
20 Business Days prior to the Purchase Date being herein referred to as the
"COMPANY NOTICE DATE"). Such notices shall state the manner of payment elected
and shall contain the following information:
In the event the Company has elected to pay the Purchase Price (or any
specified percentage thereof) with Common Stock, the notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date equal to
such specified percentage of the Purchase Price of the Securities held by
such Holder (except for any cash amount to be paid in lieu of fractional
shares);
(2) set forth the method of calculating the Market Price of the
Common Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market risk
with respect to the value of the Common Stock to be received from the date
such Market Price is determined to the Purchase Date.
In any case, each notice shall include a form of Purchase Notice to be
completed by the Securityholder and shall state:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion Agent
and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given may
be converted into Common Stock at any time prior to the close of
business on the applicable Purchase Date only if the applicable
Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
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(iv) that Securities must be surrendered to the Paying Agent or to the
office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly
following the later of the Purchase Date and the time of surrender of
such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities and that
Holders who want to convert Securities must satisfy the requirements
set forth in paragraph 8 of the Securities; and
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms
of Section 3.08(a)(1)(D) or Section 3.10).
At the Company's written request, the Trustee shall give such notice in the
Company's name and at the Company's expense;
PROVIDED, HOWEVER, that, in all cases, the text of such notice shall be prepared
by the Company.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 Principal Amount of Securities, the Company will
publish such determination in THE WALL STREET JOURNAL or another daily
newspaper of national circulation and furnish the Trustee with an affidavit
of publication.
(f) COVENANTS OF THE COMPANY. All shares of Common Stock delivered
upon purchase of the Securities shall be newly issued shares or treasury
shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien
or adverse claim.
The Company shall use its best efforts to list or cause to have quoted
any shares of Common Stock to be issued to purchase Securities on the
principal national securities exchange or over-the-counter or other domestic
market on which any other shares of the Common Stock are then listed or
quoted. The Company will promptly inform the Trustee in writing of any such
listing.
(g) PROCEDURE UPON PURCHASE. The Company shall deposit cash (in
respect of a cash purchase under Section 3.08(c) or for fractional interests,
as applicable) or shares of Common Stock, or any combination thereof, as
applicable, at the time and in the manner as provided in Section 3.11,
sufficient to pay the aggregate Purchase Price of all Securities to be
purchased pursuant to this
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Section 3.08. As soon as practicable after the later of the Purchase Date
and the date such Securities are surrendered to the Paying Agent or at the
office or agency referred to in Section 4.05, the Company shall deliver to
each Holder entitled to receive Common Stock through the Paying Agent a
certificate for the number of full shares of Common Stock issuable in payment
of the Purchase Price and cash in lieu of any fractional interests. The
person in whose name the certificate for Common Stock is registered shall be
treated as a holder of record of such Common Stock on the Business Day
following the related Purchase Date. Subject to Section 3.08(d), no payment
or adjustment will be made for dividends on the Common Stock the record date
for which occurred prior to the Purchase Date.
(h) TAXES. If a Holder of a Security is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax due
on such issue of shares of Common Stock. However, the Holder shall pay any
such tax which is due because the Holder requests the shares of Common Stock
to be issued in a name other than the Holder's name. The Paying Agent may
refuse to deliver the certificates representing the Common Stock being issued
in a name other than the Holder's name until the Paying Agent receives a sum
sufficient to pay any tax which will be due, as set forth in an Officers'
Certificate, because the shares of Common Stock are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
SECTION 3.09. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE
IN CONTROL.
(a) If on or prior to June 12, 2001 there shall have occurred a Change
in Control, Securities shall be purchased, at the option of the Holder
thereof, by the Company at the purchase price specified in paragraph 6 of the
Securities (the "CHANGE IN CONTROL PURCHASE PRICE"), on the date that is 35
Business Days after the occurrence of the Change of Control (the "CHANGE IN
CONTROL PURCHASE DATE"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.09(c).
A "CHANGE IN CONTROL" shall be deemed to have occurred at such time
after the original issuance of the Securities as either of the following
events shall occur:
(i) There shall be consummated any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation
or pursuant to which the Common Stock would be converted into cash,
securities or other property, other than a consolidation or merger of the
Company in which the holders of Common Stock immediately prior to the
consolidation or merger have, directly or indirectly, at least a majority
of the Common Stock of the continuing or surviving corporation immediately
after such consolidation or merger; or
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(ii) There is a report filed by any person, including its Affiliates
and Associates, other than Zell/Chilmark, the Company, any Subsidiary of
the Company, or any employee benefit plan of either the Company or any
Subsidiary of the Company, on Schedule 13D or 14D-1 (or any successor
schedule, form or report) pursuant to the Exchange Act, disclosing that
such person (for the purposes of this Section 3.09 only, the term "person"
shall include a "person" within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing) has become the beneficial owner (as the term "BENEFICIAL OWNER"
is defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of 50% or more of the voting power of the Company's
Common Stock then outstanding; PROVIDED, HOWEVER, that a person shall not
be deemed beneficial owner of, or to own beneficially, (A) any securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such person or any of such person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange thereunder, or
(B) any securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act, and (2) is not also then reportable
on Schedule 13D (or any successor schedule, form or report) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.09, a Change
in Control shall not be deemed to have occurred if at any time the Company,
any Subsidiary, any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary, or any person holding Common
Stock for or pursuant to the terms of any such employee benefit plan files or
becomes obligated to file a report under or in response to Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report) under the Exchange
Act disclosing beneficial ownership by it of shares of Common Stock, whether
in excess of 50% or otherwise.
"ASSOCIATE" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on
the date hereof.
(b) Within 15 Business Days after the occurrence of a Change in
Control, (i) the Company shall mail a written notice of such Change in
Control by first-class mail to the Trustee and to each Holder (and to
beneficial owners if required by applicable law) and (ii) the Company shall
cause a copy of such notice to be published in THE WALL STREET JOURNAL or
another daily newspaper of national circulation. The notice shall include a
form of Change in Control Purchase Notice to be completed by the
Securityholder and shall state:
(1) the events causing a Change in Control and the date such Change
in Control is deemed to have occurred for purposes of this Section 3.09;
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(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.09 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent
and the office or agency referred to in Section 4.05;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase Notice
has been given may be converted into Common Stock (or, in lieu thereof,
cash, if the Company shall so elect) at any time prior to the close of
business on the Change of Control Purchase Date only if the Change in
Control Purchase Notice has been withdrawn by the Holder in accordance with
the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent or the
office or agency referred to in Section 4.05 to collect payment;
(9) that the Change in Control Purchase Price for any Security as to
which a Purchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Change in Control Purchase Date and the
time of surrender of such Security as described in (8);
(10) the procedures the Holder must follow to exercise rights under
this Section 3.09 and a brief description of those rights;
(11) briefly, the conversion rights of the Securities; and
(12) the procedures for withdrawing a Change in Control Purchase
Notice.
(c) A Holder may exercise its rights specified in Section 3.09(a) upon
delivery of a written notice of purchase (a "CHANGE IN CONTROL PURCHASE
NOTICE") to the Paying Agent or to the office or agency referred to in
Section 4.05 at any time prior to the close of business on the Change in
Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
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(2) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(3) that such Security shall be purchased on the Change in Control
Purchase Date pursuant to the terms and conditions specified in paragraph 6
of the Securities.
Receipt of the Security by the Paying Agent prior to, on or after the
Change in Control Purchase Date (together with all necessary endorsements),
at the offices of the Paying Agent or to the office or agency referred to in
Section 4.05 shall be a condition to the receipt by the Holder of the Change
in Control Purchase Price therefor; PROVIDED, HOWEVER, that such Change in
Control Purchase Price shall be so paid pursuant to this Section 3.09 only if
the Security so delivered to the Paying Agent or such office or agency shall
conform in all respects to the description thereof set forth in the related
Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Security also apply to the purchase of
such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Change in
Control Purchase Date and the date such Securities are surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent or to the office or agency referred to in Section 4.05
the Change in Control Purchase Notice contemplated by this Section 3.09(c)
shall have the right to withdraw such Change in Control Purchase Notice at
any time prior to or on the Change in Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent or to such office or agency
in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase
Notice or Change in Control Purchase Notice, as the case may be, was given
shall (unless such Purchase Notice or Change in Control Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price or Change in Control Purchase
Price, as the case may be, with respect to such Security. Such Purchase
Price
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or Change in Control Purchase Price shall be paid to such Holder promptly
following the later of (x) the Business Day following the Purchase Date or
the Change in Control Purchase Date, as the case may be, with respect to such
Security (provided the conditions in Section 3.08(a) or Section 3.09(c), as
applicable, have been satisfied) and (y) the time of delivery of such
Security to the Paying Agent or to the office or agency referred to in
Section 4.05 by the Holder thereof in the manner required by Section 3.08(a)
and (g) or Section 3.09(c), as applicable. Securities in respect of which a
Purchase Notice or Change in Control Purchase Notice, as the case may be, has
been given by the Holder thereof may not be converted into shares of Common
Stock on or after the date of the delivery of such Purchase Notice or Change
in Control Purchase Notice, as the case may be, unless such Purchase Notice
or Change in Control Purchase Notice, as the case may be, has first been
validly withdrawn as specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent or to the office or agency referred to in
Section 4.05 at any time on or prior to the Purchase Date or the Change in
Control Purchase Date, as the case may be, specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted;
(2) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Purchase Notice pursuant to the terms
of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(a)(1)(D) and the preceding paragraph
and contained in a written notice of withdrawal delivered to the Paying Agent
as set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to Sections 3.08
(other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu of fractional shares of Common Stock) or 3.09
if there has occurred (prior to, on or after, as the case may be, the giving,
by the Holders of such Securities, of the required Purchase Notice or Change
in Control Purchase Notice, as the case may be) and is continuing an Event of
Default (other than a default in the payment of the Purchase Price or Change
in Control Purchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Purchase Notice or Change
in Control Purchase Notice,
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as the case may be, has been withdrawn in compliance with this Indenture, or
(y) held by it during the continuance of an Event of Default (other than a
default in the payment of the Purchase Price or Change in Control Purchase
Price, as the case may be, with respect to such Securities) in which case,
upon such return, the Purchase Notice or Change in Control Purchase Notice
with respect thereto shall be deemed to have been withdrawn.
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. Prior to 3:00 p.m. (local time in The City of New York) on the
Business Day following the Purchase Date or the Change in Control Purchase
Date, as the case may be, the Company shall deposit with the Trustee or with
the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as Paying Agent, shall segregate and hold in trust
as provided in Section 2.04) an amount of cash in immediately available funds
or securities, if expressly permitted hereunder, sufficient to pay the
aggregate Purchase Price or Change in Control Purchase Price, as the case may
be, of all the Securities or portions thereof which are to be purchased as of
the Purchase Date or Change in Control Purchase Date, as the case may be.
SECTION 3.12. SECURITIES PURCHASED IN PART. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
or the office or agency referred to in Section 4.05 (with, if the Company or
the Trustee so requires, due endorsement, or a written instrument of transfer
in form satisfactory to the Company and the Trustee executed by the Holder or
such Holder's attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of
the Security so surrendered which is not purchased.
SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES. In connection with any offer to purchase or purchase of
Securities under Section 3.08 or 3.09 hereof, the Company shall (i) comply
with Rule 13e-4 and Rule 14e-1 under the Exchange Act, if applicable, (ii)
file the related Schedule 13E-4 (or any successor schedule, form or report)
under the Exchange Act, if applicable, and (iii) otherwise comply with all
Federal and state securities laws regulating the offer and delivery of shares
of Common Stock upon purchase of the Securities (including positions of the
SEC under applicable no-action letters) so as to permit the rights and
obligations under Sections 3.08 and 3.09 to be exercised in the time and in
the manner specified in Sections 3.08 and 3.09.
SECTION 3.14. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company, upon written request, any cash or shares
of Common Stock, together with interest on such cash as hereinafter provided
and dividends on such shares of Common Stock, if any, (subject to the
provisions of Section 7.01(f)) held by them for the payment of a Purchase
Price or Change in Control Purchase Price, as the case may be, of the
Securities that remain unclaimed as
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provided in paragraph 12 of the Securities; PROVIDED, HOWEVER, that to the
extent that the aggregate amount of cash or shares of Common Stock deposited
by the Company pursuant to Section 3.11 exceeds the aggregate Purchase Price
or Change in Control Purchase Price, as the case may be, of the Securities or
portions thereof to be purchased, then promptly after the Business Day
following the Purchase Date or Change in Control Purchase Date, as the case
may be, the Trustee shall return any such excess to the Company together with
interest as hereinafter provided or dividends, if any, thereon (subject to
the provisions of Section 7.01(f)). Any cash deposited with the Trustee or
with the Paying Agent pursuant to Section 3.11 hereof, shall be invested by
the Trustee or Paying Agent, as applicable, in short term obligations of, or
fully guaranteed by, the United States of America, or commercial paper rated
A-1 or better by Standard and Poor's Corporation or P-1 or better by Moody's
Investors Service, Inc. or the Dreyfus Cash Management Fund or the American
AAdvantage Money Market Fund, as specifically directed in writing by the
Company. Interest earned on such investments shall be repaid to the Company
pursuant to this Section 3.14. Except as provided for in this Section 3.14,
the Trustee shall be under no liability for interest on any money received by
it pursuant to this Indenture.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price, Change in Control Purchase Price and interest, if any, shall be
considered paid on the applicable date due if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, cash or securities, if
expressly permitted hereunder, sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the per annum rate of interest set forth in paragraph 1 of
the Securities, compounded semi-annually, which interest on overdue amounts
(to the extent payment of such interest shall be legally enforceable) shall
accrue from the date such overdue amounts were originally due and payable.
SECTION 4.02. SEC REPORTS. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual and quarterly
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act (or any such successor provisions
thereto). In the event the Company is at any
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time no longer subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act (or any such successor provisions), it shall continue to
provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the SEC had the
Company continued to have been subject to such reporting requirements, and
the Trustee shall make any such reports available to Securityholders upon
request. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall comply
with the other provisions of TIA Section 314(a), to the extent such
provisions are applicable.
SECTION 4.03. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULTS.
(a) The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company (beginning with the fiscal year ending
on December 31, 1996) a certificate of the principal executive officer, the
principal financial officer, or principal accounting officer of the Company
stating whether or not, to the knowledge of the signer, the Company has
complied with all conditions and covenants on its part contained in this
Indenture and, if the signer has obtained knowledge of any default by the
Company in the performance, observance or fulfillment of any such condition
or covenant, specifying each such default and the nature thereof. For the
purpose of this Section 4.03, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms
of this Indenture.
(b) The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five Business Days of
its becoming aware of such Default or Event of Default.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, in such location
as may be required by the rules of any securities exchange or quotation
system on which the Securities may from time to time be listed, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange,
purchase, redemption or conversion and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served.
The office of the Trustee in The City of New York, at which at any particular
time its corporate trust business shall be principally administered, which
office on the date hereof is located at 101 Barclay Street, Floor 21 West,
New York, New York 10286, shall be such office or agency for all of the
aforesaid purposes unless the Company shall maintain some other office or
agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change of location, of such other office or agency.
If at any time the Company shall fail to maintain
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any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly following the end of each calendar year
a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Securities as of the
end of such year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. So long as
any Securities shall be outstanding, the Company shall not consolidate with
or merge into any other corporation or other person or convey, transfer or
lease its properties and assets substantially as an entirety to any person
(such successor corporation or person, as the case may be, shall in this
Article 5 be referred to as the "Successor Company"), unless
(1) either (x) the Company shall be the continuing corporation or
(y) the Successor Company (if other than the Company) shall be organized
and existing under the laws of the United States of America or any State
or the District of Columbia, and shall expressly assume by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all the
Securities and the performance of every covenant of this Indenture and
in the Securities on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event that, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and
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such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED. Upon any consolidation
with or merger into any other corporation or other person, or any conveyance,
transfer or lease of the properties and assets of the Company substantially
as an entirety in accordance with Section 5.01, the Successor Company or
person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Successor Company or person
had been named as the Company herein, and thereafter, except in the case of a
lease and obligations the Company may have under a supplemental indenture
pursuant to Section 10.14, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
Subject to Section 9.06, the Company, the Trustee and the successor person
shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the
Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price, Purchase Price or
Change in Control Purchase Price on any Security when the same becomes due
and payable at its Stated Maturity, upon redemption, upon declaration, when
due for purchase by the Company or otherwise, whether or not such payment
shall be prohibited by this Indenture;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(3) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;
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(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such petition or the appointment of
or taking possession by a Custodian;
(4) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days;
(5) the Company fails to deliver shares of Common Stock or pay cash in
lieu of fractional shares in accordance with the terms hereof when such
Common Stock or cash in lieu of fractional shares is required to be
delivered, upon conversion of a Security and such failure is not remedied
for a period of 10 days; or
(6) (a) default shall occur (i) in the payment of any principal on any
debt for borrowed money of the Company (excluding any non-recourse debt),
in an aggregate principal amount in excess of $10.0 million, when due at
its final maturity after giving effect to any applicable grace period and
the holder thereof shall have taken affirmative action to enforce the
payment thereof, or (ii) in the performance of any term or provision of any
debt for borrowed money of the Company (excluding any non-recourse debt) in
an aggregate principal amount in excess of $10.0 million that results in
such debt becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, unless, in the case of
either clause (i) or (ii) above, (x) such acceleration or action to enforce
payment, as the case may be, has been rescinded or annulled, (y) such debt
has been discharged or (z) a sum sufficient to discharge in full such debt
has been deposited in trust by or on behalf of the Company, in each case,
within a period of 10 days after there has
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been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate Principal Amount of the Securities at the time outstanding,
a written notice specifying such default or defaults and stating that
such notice is a "Notice of Default" hereunder.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after receipt of such notice.
Any such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which
with the giving of notice and the lapse of time or both would become an Event
of Default under clause (2) or clause (6), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(3) or (4)) occurs and is
continuing, unless the Principal Amount of all the Securities shall have
already become due and payable, either the Trustee by notice to the Company,
or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding by notice to the Company and the Trustee,
may declare the Issue Price and accrued Original Issue Discount through the
date of declaration on all the Securities to be immediately due and payable,
whereupon such Issue Price and accrued Original Issue Discount shall be due
and payable immediately; provided that, if an Event of Default specified in
Section 6.01(3) or (4) occurs and is continuing, the Issue Price and accrued
Original Issue Discount on all the Securities through the date of the
occurrence of such Event of Default shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in aggregate Principal Amount
of the Securities at the time outstanding, by notice to the Trustee (and
without notice to any other Securityholder) 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 have been cured or waived except
nonpayment of the Issue Price and accrued Original Issue Discount that have
become due solely as a result of acceleration and if all amounts due to the
Trustee under Section 7.06 have been paid. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by
notice to the Trustee (and without notice to any other Securityholder), may
waive an existing Default and its consequences except (a) an Event of Default
described in Section 6.01(1), (b) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each
Securityholder affected or (c) a Default under Article 10. When a Default is
waived, it is deemed cured and shall cease to exist, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee shall have been
provided with reasonable security or indemnity against such liability
satisfactory to the Trustee.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
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A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price
or interest, if any, in respect of the Securities held by such Holder, on or
after the respective due dates expressed in the Securities or any Redemption
Date, and to convert the Securities in accordance with Article 10 or to bring
suit for the enforcement of any such payment on or after such respective
dates or the right to convert, shall not be impaired or affected adversely
without the consent of each such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.06.
SECTION 6.09. 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 Amount, Issue Price,
accrued Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price or interest, if any, in respect 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 any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, 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
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,
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to pay the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.06;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant (other than the Trustee) in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit initiated by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in aggregate Principal Amount of the Securities at the time
outstanding.
SECTION 6.12. NOTICE OF DEFAULTS. The Trustee shall, within 90 days
after the occurrence of any Default, mail to all Holders of Securities, as
the names and addresses of such Holders appear on the books of registry of
the Company, notice of all Defaults of which the Trustee shall be aware,
unless such Defaults shall have been cured or waived before the giving of
such notice; PROVIDED that, except in the case of a Default described in
Section 6.01(1), the Trustee shall be protected in
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withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or Trust Officers of
the Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of Securities.
SECTION 6.13. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury or other law,
wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Company from paying all or any portion of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price or Change in Control Purchase Price in respect of the
Securities, or any interest on any such amounts, as contemplated herein, or
that may affect the covenants or the performance of this Indenture or the
Securities; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. RIGHTS OF TRUSTEE.
(a) 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.
(b) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(c) 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.
(d) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(e) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Except as provided in
Section 3.14 hereof, the Trustee (acting
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in any capacity hereunder) shall be under no liability for interest on any
money received by it hereunder.
(f) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(g) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(h) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the outstanding Securities
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.
(j) The Trustee may consult with counsel of its selection 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.
(k) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee reasonably believes that a default may exist, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(l) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
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repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(m) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
SECTION 7.02. 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 its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.09 and 7.10.
SECTION 7.03. 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, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act or in the
Indenture or the Securities (other than its certificate of authentication),
or the determination as to which beneficial owners are entitled to receive
any notices hereunder.
SECTION 7.04. NOTICE OF DEFAULTS. The Trustee shall, within 90 days
after the occurrence of any Default, mail to all Holders of Securities, as
the names and addresses of such Holders appear on the books of registry of
the Company, notice of all Defaults of which the Trustee shall be aware,
unless such Defaults shall have been cured or waived before the giving of
such notice. Except in the case of a Default described in Section 6.01(1),
the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of
directors or Trust Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities.
SECTION 7.05. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
June 1 beginning with the June 1, 1998 following the date of this Indenture,
the Trustee shall mail to each Securityholder a brief report dated as of such
June 1 that complies with TIA Section 313(a), if required by said Section.
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be provided to the Company and shall be filed with the SEC and each
stock exchange on which the Securities are listed. The Company agrees
promptly to notify the Trustee whenever the Securities become listed on any
stock exchange and of any delisting thereof.
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SECTION 7.06. COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such compensation (in
accordance with a fee schedule agreed upon from time to time) for all
services rendered by it hereunder (which compensation shall not (to the
extent permitted by law) be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee (in accordance with a fee schedule agreed
upon from time to time) upon its request and, if required by the Company,
submission of reasonable documentation for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the expenses, advances and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based upon, measured or
determined by the income of the Trustee), incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (c)
of this Section 7.06, within a reasonable amount of time after a Trust
Officer of the Trustee actually becomes aware of such claim or liability. To
secure the Company's payment obligations in this Section 7.06, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee.
The Company's payment obligations pursuant to this Section 7.06 shall
survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(3) or (4), the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law. The provisions of this Section shall survive the termination
of this Indenture.
SECTION 7.07. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.07. The Holders of a majority in aggregate Principal Amount
of the Securities at the time outstanding may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee (subject to the
consent of the Company, such consent not to be unreasonably withheld). The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.09;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate Principal Amount of the Securities at
the time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.09, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.08. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.09. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.
SECTION 7.10. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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SECTION 7.11. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits
with the Trustee cash or, if expressly permitted by the terms hereof,
securities sufficient to pay at Stated Maturity the Principal Amount of all
outstanding Securities (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable
hereunder by the Company (including, without limitation, sums payable by
delivery of shares of Common Stock pursuant to Section 3.08), then this
Indenture shall, subject to Section 7.06, cease to be of further effect. The
Trustee shall join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and Opinion of Counsel and at
the cost and expense of the Company.
SECTION 8.02. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years; PROVIDED, HOWEVER, that at
the Company's written request, the Trustee or such Paying Agent, before being
required to make any such return, shall, at the expense of the Company, cause
to be published once in THE WALL STREET JOURNAL or another daily newspaper of
national circulation or mail to each such Holder notice that such money or
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, any unclaimed
money or securities then remaining will be returned to the Company. After
return to the Company, Holders entitled to the money or securities must look
to the Company for payment as general creditors unless an applicable
abandoned property law designates another person, and the Trustee and the
Paying Agent shall have no further liability with respect to such money or
securities for that period commencing after the return thereof.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
PROVIDED, HOWEVER, that such amendment does not materially adversely affect
the rights of any Securityholder;
(2) to comply with Article 5 or Section 10.14;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities so long as such uncertificated Securities
are in registered form for purposes of the Internal Revenue Code of 1986,
as amended;
(4) to make any change that does not adversely affect the rights of
any Securityholder;
(5) to add to the covenants or obligations of the Company hereunder,
for the benefit of the Securityholders, or to surrender any right, power or
option herein conferred upon the Company; or
(6) to make any change to comply with the TIA.
SECTION 9.02. WITH CONSENT OF HOLDERS. With the written consent of the
Holders of at least a majority in aggregate Principal Amount of the
Securities at the time outstanding, the Company and the Trustee may amend
this Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment or supplement to this Indenture or the
Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with Original
Issue Discount, reduce the rate of interest referred to in paragraph 1 of
the Securities or extend the time for payment of accrued Original Issue
Discount or interest, if any, on any Security;
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
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(4) reduce the amount of cash payable in respect of conversion upon
the Company's election to pay cash with respect thereto, the Redemption
Price, Purchase Price or Change in Control Purchase Price of any Security
or extend the date on which the Purchase Price or Change in Control
Purchase Price of any Security is payable;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Section 6.04 or this Section 9.02, except to
increase any percentage referred to therein, or make any change in Section
6.07;
(7) make any change that adversely affects the right to convert any
Security (including the right to receive cash in lieu of Common Stock
except as set forth in Section 9.01(4));
(8) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture (including the right to receive cash if the Company has
elected to pay cash upon such purchase);
(9) make any change to the provisions of this Indenture relating to
the purchase of Securities at the option of the Holder pursuant to Section
3.08 or 3.09 which change would result in a violation of applicable federal
or state securities laws (including positions of the SEC under applicable
no-action letters), whether as a result of the exercise or performance of
any rights or obligations under such provisions or otherwise; or
(10) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Securities.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then
in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver becomes effective, a consent to it or any other
action by a Holder of a Security hereunder is a continuing consent by the
Holder and every subsequent Holder of that Security or
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portion of the Security that evidences the same obligation as the consenting
Holder's Security, even if notation of the consent, waiver or action is not
made on the Security. However, any such Holder or subsequent Holder may
revoke the consent, waiver or action as to such Holder's Security or portion
of the Security if the Trustee receives the notice of revocation before the
date the amendment, waiver or action becomes effective. After an amendment,
waiver or action becomes effective, it shall bind every Securityholder,
except as provided in Section 9.02.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9
if the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing such amendment the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.01) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
ARTICLE 10
CONVERSION
SECTION 10.01. CONVERSION PRIVILEGE. A Holder of a Security may
convert such Security into Common Stock at any time during the period stated
in paragraph 8 of the Securities. The number of shares of Common Stock
issuable upon conversion of a Security per $1,000 of Principal Amount thereof
(the "CONVERSION RATE") shall be that set forth in paragraph 8 in the
Securities, subject to adjustment as herein set forth.
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A Holder may convert a portion of the Principal Amount of a Security if
the portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.
"AVERAGE SALE PRICE" means the average of the Sale Prices of the Common
Stock for the shorter of
(i) 30 consecutive Trading Days ending on the last full Trading Day
prior to the Time of Determination with respect to the rights,
options, warrants or distribution in respect of which the Average
Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, options or warrants
or (b) the distribution, in each case, in respect of which the Average
Sale Price is being calculated and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to
the rights, warrants or distribution in respect of which the Average
Sale Price is being calculated, or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance
of rights, warrants, or options or (b) distribution, in each case, for
which an adjustment is required by the provisions of Section 10.06(4),
10.07 or 10.08 and (y) proceeding through the last full Trading Day
prior to the Time of Determination with respect to the rights,
warrants, or options or distribution in respect of which the Average
Sale Price is being calculated.
If the Ex-Dividend Time (or in the case of a subdivision, combination or
reclassification, the effective date with respect thereto) with respect to a
dividend, subdivision, combination or reclassification to which Section
10.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a
manner determined by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the Sale Price of
the Common Stock during such period.
"TIME OF DETERMINATION" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants, or
options or a distribution, in each case, to which Sections 10.07 and 10.08
apply and (ii) the time ("EX-DIVIDEND TIME") immediately prior to the
commencement of "ex-dividend" trading for such rights, options, warrants or
distribution on the New York Stock Exchange or such other national or
regional exchange or market on which the Common Stock is then listed or
quoted.
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SECTION 10.02. CONVERSION PROCEDURE. To convert a Security a Holder
must satisfy the requirements in paragraph 8 of the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"CONVERSION DATE"). The Company shall deliver to the Holder no later than
the seventh Business Day following the Conversion Date, through the
Conversion Agent, a certificate for the number of full shares of Common Stock
issuable upon the conversion and cash in lieu of any fractional share
determined pursuant to Section 10.03.
The person in whose name the certificate is registered shall be treated
as a stockholder of record on and after the Conversion Date; PROVIDED,
HOWEVER, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the
person or persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender shall be effective to constitute the person or
persons entitled to receive such shares of Common Stock as the record holder
or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; PROVIDED,
FURTHER, that such conversion shall be at the Conversion Rate in effect on
the date that such Security shall have been surrendered for conversion, as if
the stock transfer books of the Company had not been closed. Upon conversion
of a Security, such person shall no longer be a Holder of such Security.
Holders may surrender a Security for conversion by means of book entry
delivery in accordance with paragraph 8 of the Securities and the regulations
of the applicable book entry facility.
No payment or adjustment will be made for dividends on any Common Stock
except as provided in this Article 10. On conversion of a Security, that
portion of accrued Original Issue Discount attributable to the period from
the Issue Date to the Conversion Date with respect to the converted Security
shall not be cancelled, extinguished or forfeited, but rather shall be deemed
to be paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Security being converted pursuant to the provisions hereof;
and the fair market value of such shares of Common Stock (together with any
such cash payment in lieu of any fractional shares of Common Stock) shall be
treated as issued, to the extent thereof, first in exchange for Original
Issue Discount accrued through the Conversion Date, and the balance, if any,
of such fair market value of such shares of Common Stock (and any such cash
payment) shall be treated as issued in exchange for the Issue Price of the
Security being converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be
computed based on the total Principal Amount of the Securities converted.
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Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder,
a new Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where the Conversion Agent is located, the Security may be
surrendered to such Conversion Agent on the next succeeding day that is not a
Legal Holiday.
SECTION 10.03. FRACTIONAL SHARES. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined to
the nearest 1/1,000th of a share by multiplying the Sale Price, on the last
Trading Day prior to the Conversion Date, of a full share by the fractional
amount and rounding the product to the nearest whole cent.
SECTION 10.04. TAXES ON CONVERSION. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon such conversion. However,
the Holder shall pay any such tax which is due because the Holder requests
the shares to be issued in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificates representing the
Common Stock being issued in a name other than the Holder's name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due,
as set forth in an Officers' Certificate, because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any
tax withholding required by law or regulations.
SECTION 10.05. COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be
necessary, reserve out of its authorized but unissued Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities for shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive
rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the offer and delivery of shares of Common Stock
upon conversion of Securities, if any, and will list or cause to have quoted
such shares of Common Stock on each national securities exchange or in the
over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
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SECTION 10.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If, after the
Issue Date, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or rights, warrants or
options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of
Capital Stock of the Company which such Holder would have owned immediately
following such action if such Holder had converted the Security immediately
prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares or other units of two or more classes or series
of Capital Stock of the Company, the Conversion Rate shall thereafter be
subject to adjustment upon the occurrence of an action taken with respect to
any such class or series of Capital Stock as is contemplated by this Article
10 with respect to the Common Stock, on terms comparable to those applicable
to Common Stock in this Article 10.
SECTION 10.07. ADJUSTMENT FOR RIGHTS ISSUE. If, after the Issue Date,
the Company distributes any rights, warrants or options to all holders of its
Common Stock entitling them, for a period expiring within 60 days after the
record date for such distribution, to purchase shares of Common Stock at a
price per share less than the Sale Price as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
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(0 + N)
-----------
R' = R x 0 + (N X P)
-----
M
where:
R'= the adjusted Conversion Rate.
R = the current Conversion Rate.
0 = the number of shares of Common Stock outstanding on the record date
for the distribution.
N = the number of additional shares of Common Stock offered pursuant to
the distribution.
P = the offering price per share of such additional shares.
M = the Average Sale Price, MINUS, in the case of (i) a distribution to
which Section 10.06(4) applies or (ii) a distribution to which Section
10.08 applies, for which, in each case, (x) the record date shall
occur on or before the record date for the distribution to which this
Section 10.07 applies and (y) the Ex-Dividend Time shall occur on or
after the date of the Time of Determination for the distribution to
which this Section 10.07 applies, the fair market value (on the record
date for the distribution to which this Section 10.07 applies) of:
(1) the Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section
10.06(4) distribution, and
(2) the assets of the Company or debt securities or
any rights, warrants or options to purchase securities of
the Company distributed in respect of each share of Common
Stock in such Section 10.08 distribution.
The Board of Directors shall determine fair market values for the purposes of
this Section 10.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights,
warrants or options to which this Section 10.07 applies.
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No adjustment shall be made under this Section 10.07 if the application
of the formula stated above in this Section 10.07 would result in value of R'
that is equal to or less than the value of R.
SECTION 10.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after the Issue
Date, the Company distributes to all holders of its Common Stock any of its
assets or debt securities or any rights, warrants or options to purchase
securities of the Company (including securities or cash, but excluding (x)
distributions of Capital Stock referred to in Section 10.06 and distributions
of rights, warrants or options referred to in Section 10.07 and (y) cash
dividends or other cash distributions that are paid out of consolidated
current net income or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends (as defined below)), the Conversion Rate shall
be adjusted, subject to the provisions of the last paragraph of this Section
10.08, in accordance with the formula:
M
---
R' = R x M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, MINUS, in the case of a distribution to which
Section 10.06(4) applies for which (i) the record date shall occur on
or before the record date for the distribution to which this Section
10.08 applies and (ii) the Ex-Dividend Time shall occur on or after
the date of the Time of Determination for the distribution to which
this Section 10.08 applies, the fair market value (on the record date
for the distribution to which this Section 10.08 applies) of any
Capital Stock of the Company distributed in respect of each share of
Common Stock in such Section 10.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 10.08 applies) of the assets, securities, rights,
warrants or options to be distributed in respect of each share of
Common Stock in the distribution to which this Section 10.08 is being
applied (including, in the case of cash dividends or other cash
distributions giving rise to an adjustment, all such cash distributed
concurrently).
The Board of Directors shall determine fair market values for the purpose of
this Section 10.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 10.08 applies.
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For purposes of this Section 10.08, the term "EXTRAORDINARY CASH DIVIDEND"
shall mean any cash dividend with respect to the Common Stock the amount of
which, together with the aggregate amount of cash dividends on the Common Stock
to be aggregated with such cash dividend in accordance with the provisions of
this paragraph, equals or exceeds the threshold percentages set forth in items
(i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the eighty-five (85)
consecutive day period ending on the date prior to the Ex-Dividend
Time with respect to the cash dividend to which this provision is
being applied equals or exceeds 12.5% of the average of the Sale
Prices during the period beginning on the date after the first such
Ex-Dividend Time in such period and ending on the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied (except that if no other cash dividend has
had an Ex-Dividend Time occurring in such period, the period for
calculating the average of the Sale Prices shall be the period
commencing 85 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being
applied), such cash dividend together with each other cash dividend
with an Ex-Dividend Time occurring in such 85-day period shall be
deemed to be an Extraordinary Cash Dividend and for purposes of
applying the formula set forth above in this Section 10.08, the value
of "F" shall be equal to (w) the aggregate amount of such cash
dividend together with the amounts of the other cash dividends with
Ex-Dividend Times occurring in such period MINUS (x) the aggregate
amount of such other cash dividends with Ex-Dividend Times occurring
in such period for which a prior adjustment in the Conversion Rate was
previously made under this Section 10.08.
(ii) If upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend, together with the amounts of all cash dividends on the
Common Stock with Ex-Dividend Times occurring in the 365-consecutive-
day period ending on the date prior to the Ex-Dividend Time with
respect to the cash dividend to which this provision is being applied
equals or exceeds 25% of the average of the Sale Prices during the
period beginning on the date after the first such Ex-Dividend Time in
such period and ending on the date prior to the Ex-Dividend Time with
respect to the cash dividend to which this provision is being applied
(except that if no other cash dividend has had an Ex-Dividend Time
occurring in such period, the period for calculating the average of
the Sale Prices shall be the period commencing 365 days prior to the
date prior to the Ex-Dividend Time with respect to the cash dividend
to which this provision is being applied), such cash dividend together
with each other cash dividend
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with an Ex-Dividend Time occurring in such 365-day period shall
be deemed to be an Extraordinary Cash Dividend and for purposes
of applying the formula set forth above in this Section 10.08,
the value of "F" shall be equal to (y) the aggregate amount of
such cash dividend together with amounts of the other cash
dividends with Ex-Dividend Times occurring in such period MINUS
(z) the aggregate amount of such other cash dividends with
Ex-Dividend Times occurring in such period for which a prior
adjustment in the Conversion Rate was previously made under
this Section 10.08.
In making the determinations required by items (i) and (ii) above, the
amount of cash dividends paid on a per share basis and the average of the
Sale Prices, in each case during the period specified in items (i) and (ii)
above, as applicable, shall be appropriately adjusted to reflect the
occurrence during such period of any event described in Section 10.06
In the event that, with respect to any distribution to which this
Section 10.08 would otherwise apply, the difference "M-F" as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the
adjustment provided by this Section 10.08 shall not be made and in lieu
thereof the provisions of Section 10.14 shall apply to such distribution.
SECTION 10.09. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase
or decrease of at least 1% (E.G., if the Conversion Rate is 4, an increase or
decrease of .04 (1% of 4)) in the Conversion Rate. Any adjustments that are
not made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 10 shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be, with one-half of
a cent and 5/10,000ths of a share being rounded upwards.
SECTION 10.10. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made
for a transaction referred to in Section 10.06, 10.07, 10.08 or 10.14 if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value
of the Common Stock.
56
<PAGE>
No adjustment need be made unless such adjustment, together with any
other adjustments similarly deferred equals at least 1% of the then current
Conversion Rate.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 10.08 or 10.14, no adjustment need be made thereafter as
to the cash. Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this Indenture, no
adjustment shall be made in the Conversion Rate to the extent, but only to
the extent, such adjustment results in the following quotient being less than
the par value of the Common Stock: (i) the Issue Price plus accrued Original
Issue Discount as of the date such adjustment would otherwise be effective
divided by (ii) the Conversion Rate as so adjusted.
SECTION 10.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall file with the Trustee and the Conversion Agent a
notice of such adjustment and a certificate from the Company's independent
public accountants briefly stating the facts requiring the adjustment and the
manner of computing it. The Conversion Agent will promptly mail such notice
to Securityholders at the Company's expense. The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect
to any such certificate except to exhibit the same to any Holder desiring
inspection thereof.
SECTION 10.12. VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount and for any period of time
(PROVIDED, that such period is not less than 20 Business Days). Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and
file with the Trustee and the Conversion Agent a notice of the increase. The
Company shall mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Sections 10.06, 10.07
or 10.08.
SECTION 10.13. NOTICE OF CERTAIN TRANSACTIONS. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 10.06, 10.07 or 10.08 (unless no
adjustment is to occur pursuant to Section 10.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.14; or
57
<PAGE>
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and
the Conversion Agent a notice stating the proposed record date for a dividend
or distribution of the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at
least 15 days before such date. Failure to file or mail the notice or any
defect in it shall not affect the validity of the transaction.
SECTION 10.14. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS. If the
Company is a party to a transaction subject to Section 5.01 (other than a
sale of all or substantially all of the assets of the Company in a
transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or
any other person) or a merger or binding share exchange which reclassifies or
changes its outstanding Common Stock, the person obligated to deliver
securities, cash or other assets upon conversion of Securities shall enter
into a supplemental indenture. If the issuer of securities deliverable upon
conversion of Securities is an Affiliate of the successor Company, that
issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming
(to the extent applicable) that such Holder (i) was not a constituent person
or an Affiliate of a constituent person to such transaction; (ii) made no
election with respect thereto; and (iii) was treated alike with the plurality
of non-electing Holders. The supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Article 10. The successor Company shall
mail to Securityholders a notice briefly describing the supplemental
indenture.
If this Section applies, neither Section 10.06 nor 10.07 applies.
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options
to purchase securities of the Company that, but for the provisions of the
last paragraph of Section 10.08, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 10.08, then, from
and after the record date for determining the holders of Common Stock
entitled to receive the distribution, a Holder of a Security that converts
such Security in accordance with the provisions of this Indenture shall upon
such conversion be entitled to receive, in addition to the shares of Common
Stock into which the Security is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the Security
58
<PAGE>
immediately prior to the record date for determining the holders of Common
Stock entitled to receive the distribution.
SECTION 10.15. COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to this Article 10 is
conclusive.
SECTION 10.16. TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no duty
to determine when an adjustment under this Article 10 should be made, how it
should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 10.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article 10. Each Conversion Agent (other than the Company
or an Affiliate of the Company) shall have the same protection under this
Section 10.16 as the Trustee.
SECTION 10.17. SIMULTANEOUS ADJUSTMENTS. If this Article 10 requires
adjustments to the Conversion Rate under more than one of Sections 10.06(4),
10.07 or 10.08, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.06, second, the
provisions of Section 10.08 and, third, the provisions of Section 10.07.
SECTION 10.18. SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 10, any subsequent event requiring an
adjustment under this Article 10 shall cause an adjustment to the Conversion
Rate as so adjusted.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
59
<PAGE>
SECTION 11.02 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Jacor Communications, Inc.
50 East River Center Boulevard, 12th Floor
Covington, Kentucky 41011
Attention: Treasurer
Telephone: (606) 655-2267
Telecopy: (606) 655-9345
if to the Trustee:
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street
Floor 21 West
New York, New York 10286
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 given to a Securityholder shall be mailed by
first-class mail to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent,
Conversion Agent or co-registrar.
SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
60
<PAGE>
SECTION 11.04 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 Trustee may require the Company to furnish either
or both of the following:
(1) an Officers' Certificate stating that, in the opinion of the
principal signer thereof, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the principal signer of such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of the principal signer, he or
she has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 11.06 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 11.07 RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting
of the Securityholders. The Registrar, Conversion Agent and the Paying Agent
may make reasonable rules for their functions.
SECTION 11.08 LEGAL HOLIDAY. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is
a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and to the extent applicable no Original Issue Discount
or interest, if any, shall accrue for the intervening period.
61
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SECTION 11.09 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 11.10 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 this Indenture or
for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 11.11 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 11.12 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to
prove this Indenture.
62
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
JACOR COMMUNICATIONS, INC.
By
-----------------
Title:
THE BANK OF NEW YORK,
as Trustee
By
-----------------
Title:
<PAGE>
EXHIBIT A
[FORM OF FACE OF LYON]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH
$1,000 OF PRINCIPAL AMOUNT OF THIS SECURITY IS $[ ]. THE ISSUE
DATE IS JANUARY [ ], 1998, AND THE YIELD TO STATED MATURITY IS [ ]%
PER ANNUM (COMPUTED ON A SEMIANNUAL BOND EQUIVALENT BASIS).
A-1
<PAGE>
JACOR COMMUNICATIONS, INC.
LIQUID YIELD OPTION-TM- NOTE DUE [ ]
(ZERO COUPON -- SENIOR)
No. 1
Issue Date: CUSIP No.
Issue Price: $
Original Issue Discount: $
(for each $1,000 Principal amount)
Jacor Communications, Inc., a Delaware corporation, promises to pay to
, or registered assigns, the Principal Amount of
Dollars on January [ ], 1998.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on
the other side of this Security. This Security is convertible as specified
on the other side of this Security. All capitalized terms used herein
without definition shall have the respective meanings assigned thereto in the
Indenture referred to on the other side of this Security.
- ------------------------
TM Trademark of Merrill Lynch & Co., Inc.
A-2
<PAGE>
Additional provisions of this Security are set forth on the other side
of this Security.
JACOR COMMUNICATIONS, INC.
By:
-------------------------------
Title:
ATTEST:
- --------------------------------
Date:
---------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
- --------------------------------
as Trustee, certifies that this Security
is one of the Securities referred to
in the within-mentioned Indenture.
By:
----------------------------
Authorized Signatory
A-3
<PAGE>
[FORM OF REVERSE SIDE OF LYON]
LIQUID YIELD OPTION-TM- NOTE DUE 20 [ ]
(ZERO COUPON -- SENIOR)
Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
therein.(1)
1. INTEREST
This Security shall not bear interest except as specified in this
paragraph. If the Principal Amount hereof or any portion of such Principal
Amount is not paid when due (whether upon acceleration pursuant to Section
6.02 of the Indenture, upon the date set for payment of the Redemption Price
pursuant to paragraph 5 hereof, upon the date set for payment of a Purchase
Price or Change in Control Purchase Price pursuant to paragraph 6 hereof or
upon the Stated Maturity of this Security) or if shares of Common Stock (or
cash in lieu of fractional shares) in respect of a conversion of this
Security in accordance with the terms of Article 10 of the Indenture is not
delivered when due, then in each such case the overdue amount shall bear
interest at the rate of [ ]% per annum, compounded semiannually (to the
extent that the payment of such interest shall be legally enforceable), which
interest shall accrue from the date such overdue amount was due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security
remains outstanding, shall accrue at [ ]% per annum, on a semiannual bond
equivalent basis using a 360-day year composed of twelve 30-day months,
commencing on the Issue Date of this Security, and cease to accrue on the
earlier of (a) the date on which the Principal Amount at Stated Maturity
hereof or any portion of such Principal Amount at Stated Maturity becomes due
and payable and (b) any Redemption Date, Conversion Date, Change in Control
Purchase Date, Purchase Date or other date on which such Original Issue
Discount shall cease to accrue in
- ---------------------------
(1) This paragraph should only be added if the Security is issued in global
form.
TM Trademark of Merrill Lynch & Co., Inc.
A-4
<PAGE>
accordance with Section 2.08 of the Indenture.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, Jacor
Communications, Inc. (the "Company") will make payments in respect of the
Securities to the persons who are registered Holders of Securities at the
close of business on the Business Day preceding the Redemption Date or Stated
Maturity, as the case may be, or at the close of business on a Purchase Date,
Change in Control Purchase Date or Conversion Date, as the case may be.
Holders must surrender Securities to a Paying Agent to collect such payments
in respect of the Securities. The Company will pay cash amounts in money of
The United States of America that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such cash
payments in respect of a certificated Security, if applicable, by check
payable in such money; provided that payment by wire transfer of immediately
available funds will be required with respect to payments in respect of all
Global Securities and all other Securities the Holders of which shall have
provided written wire transfer instructions to the Company or the Paying
Agent five days before the payment date.
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking corporation, as
trustee (the "Trustee"), will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent, Registrar or co-registrar, upon notice to the Trustee and the Holders.
The Company or any of its Subsidiaries or any of their Affiliates may act as
Paying Agent, Conversion Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture, dated as of
January [ ], 1998 (the "Indenture"), between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and, as in effect on
the date of the Indenture (the "TIA"), except as provided in Section 9.03 of
the Indenture. Capitalized terms used herein or on the face hereof and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company limited
to the aggregate Principal Amount at Stated Maturity specified in Section
2.02 of the Indenture (subject to Section 2.07 of the
- ---------------------------
(1) This paragraph should only be added if the Security is issued in global
form.
TM Trademark of Merrill Lynch & Co., Inc.
A-5
<PAGE>
Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the
option of the Company at the Redemption Prices set forth below, PROVIDED,
that the Securities are not redeemable prior to January [___], 20[ ].
The table below shows the Redemption Prices of a Security per $1,000
Principal Amount at Stated Maturity on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated to
each such date. The Redemption Price of a Security redeemed between such
dates would include an additional amount reflecting the additional Original
Issue Discount accrued from and including the next preceding date in the
table through the actual Redemption Date.
<TABLE>
<CAPTION>
(2)
ACCRUED
(1) ORIGINAL (3)
LYON ISSUE REDEMPTION
ISSUE DISCOUNT PRICE
REDEMPTION DATE PRICE AT [ ]% (1) + (2)
- --------------- ----- ------------ ----------
<S> <C> <C> <C>
January [ ], 20[ ]............... $__ $ $
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
January [ ], 20[ ]...............
At maturity .......................
</TABLE>
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities
held by such Holder on the following Purchase Dates and at the following
Purchase Prices per $1,000 Principal Amount at Stated Maturity of such
Securities, upon delivery of a Purchase Notice containing the information set
forth in the Indenture, at any time from
- --------------------------
TM Trademark of Merrill Lynch & Co., Inc.
A-6
<PAGE>
the opening of business on the date that is 20 Business Days prior to such
Purchase Date until the close of business on such Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in
the Indenture. Such Purchase Price (equal to the Issue Price plus accrued
Original Issue Discount through such Purchase Date) may be paid, at the
option of the Company, in cash or by the issuance and delivery of shares of
Common Stock of the Company, or in any combination thereof.
PURCHASE DATE PURCHASE PRICE
--------------------- --------------
January [ ], 20[ ] $
January [ ], 20[ ] $
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs on or prior to January [ ], 20[ ], the Company shall, at the
option of the Holder, purchase all Securities for which a Change in Control
Purchase Notice shall have been delivered as provided in the Indenture and
not withdrawn, on the date that is 35 Business Days after the occurrence of
such Change in Control, for a Change in Control Purchase Price equal to the
Issue Price plus accrued Original Issue Discount through the Change in
Control Purchase Date, which Change in Control Purchase Price shall be paid
in cash.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying
Agent a written notice of withdrawal in accordance with the provisions of the
Indenture prior to the close of business on the Purchase Date or Change in
Control Purchase Date, as the case may be.
If cash sufficient to pay the Purchase Price or Change in Control
Purchase Price of all Securities or portions thereof to be purchased as of
the Purchase Date or the Change in Control Purchase Date, as the case may be,
is deposited with the Paying Agent on the Business Day following the Purchase
Date or the Change in Control Purchase Date, as the case may be, Original
Issue Discount ceases to accrue on such Securities (or portions thereof) on
and after such date, and the Holders thereof shall have no other rights as
such (other than the right to receive the Purchase Price or Change in Control
Purchase Price, as the case may be, upon surrender of such Security).
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be
redeemed at the Holder's registered address. If money sufficient to pay the
Redemption Price of all Securities (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, on and after such date Original Issue Discount ceases to
accrue on such Securities or portions thereof. Securities in denominations
larger than $1,000 of Principal Amount may be redeemed in part but only in
integral multiples of $1,000 of Principal Amount.
- --------------------------
TM Trademark of Merrill Lynch & Co., Inc.
A-7
<PAGE>
8. CONVERSION
Subject to the next two succeeding sentences, a Holder of a Security may
convert it into Common Stock of the Company at any time before the close of
business on January [ ], 20[ ]; PROVIDED, HOWEVER, that if a Security is
called for redemption, the Holder may convert it at any time before the close
of business on the Redemption Date. The number of shares of Common Stock to
be delivered upon conversion of a Security into Common Stock per $1,000 of
Principal Amount shall be equal to the Conversion Rate. A Security in
respect of which a Holder has delivered a Purchase Notice or Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if the notice of
exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is [ ] shares of Common Stock per $1,000
Principal Amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
To convert a Security a Holder must (i) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign
a facsimile of such notice) and deliver such notice to the Conversion Agent
(or the office or agency referred to in Section 4.05 of the Indenture), (ii)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Company or the Trustee and (iii) pay any transfer or
similar tax, if required.
If the Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be based
on the total Principal Amount of the Securities converted.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Security, that portion of accrued
Original Issue Discount attributable to the period from the Issue Date to the
Conversion Date with respect to the converted Security shall not be
cancelled, extinguished or forfeited, but rather shall be deemed paid in full
to the Holder thereof through the delivery of the Common Stock in exchange
for the Security being converted pursuant to the terms hereof; and the fair
market value of such Common Stock (together with any cash payment in lieu of
fractional shares of Common Stock) shall be treated as issued, to the extent
thereof, first in exchange for Original Issue Discount accrued through the
Conversion Date, and the balance, if any, of such fair market value of such
shares of Common Stock (and any such cash payment) shall be treated as issued
in exchange for the Issue Price of the Security being converted pursuant to
the provisions hereof.
- --------------------------
TM Trademark of Merrill Lynch & Co., Inc.
A-8
<PAGE>
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to
all holders of Common Stock of certain rights to purchase Common Stock for a
period expiring within 60 days at less than the Sale Price at the Time of
Determination; and distributions to such holders of assets or debt securities
of the Company or certain rights to purchase securities of the Company
(excluding certain cash dividends or distributions). However, no adjustment
need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange of the type specified in the Indenture, or certain transfers of all
or substantially all of its assets to another person, or in certain other
circumstances described in the Indenture, the right to convert a Security
into Common Stock may be changed into a right to convert it into securities,
cash or other assets of the Company or another person.
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, together with accrued interest if any, to the Redemption
Date, by one or more investment bankers or other purchasers who may agree
with the Company to purchase such Securities from the Holders and to make
payment for such Securities to the Trustee in trust for such Holders.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000.
A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not
transfer or exchange any Securities selected for redemption (except, in the
case of a Security to be redeemed in part, the portion of the Security not to
be redeemed) or any Securities in respect of which a Purchase Notice or
Change in Control Purchase Notice has been given and not withdrawn (except,
in the case of a Security to be purchased in part, the portion of the
Security not to be purchased) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
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<PAGE>
11. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
12. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
PROVIDED, HOWEVER, that at the Company's request, the Trustee or such Paying
Agent, before being required to make any such return, shall at the expense of
the Company cause to be published once in THE WALL STREET JOURNAL or another
newspaper of national circulation or mail to each such Holder notice that
such money or securities remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed money or securities then remaining will
be returned to the Company. After return to the Company, Holders entitled to
the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person, and the Trustee and the Paying Agent shall have no further liability
with respect to such money or securities for that period commencing after the
return thereof.
13. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the
Securities at the time outstanding and (ii) certain defaults or noncompliance
with certain provisions may be waived with the written consent of the Holders
of a majority in aggregate Principal Amount of the Securities at the time
outstanding. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to comply with Article 5 or Section 10.14 of the Indenture
or to make any change that does not adversely affect the rights of any
Securityholder.
14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in payment of
the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or Change in Control Purchase Price, as the
case may be, in respect of the Securities when the same becomes due and
payable; (ii) failure either to deliver shares of Common Stock (or cash in
lieu of fractional shares) in accordance with the terms of the Indenture when
such Common Stock (or cash in lieu of fractional shares) is required to be
delivered following conversion of a Security and such failure is not remedied
for a period of 10 days; (iii) failure by the Company to comply with other
agreements in the Indenture or the Securities, subject to notice and lapse of
time; (iv) default (A) in the payment of any principal on any debt for
borrowed money of the
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<PAGE>
Company (excluding any non-recourse debt), in an aggregate principal amount
in excess of $10 million when due at its final maturity after giving effect
to any applicable grace period and the holder thereof shall have taken
affirmative action to enforce the payment thereof, or (B) in the performance
of any term or provision of any debt for borrowed money of the Company
(excluding any non-recourse debt) in an aggregate principal amount in excess
of $10 million that results in such debt becoming or being declared due and
payable prior to the date on which it would otherwise become due and payable,
unless, in the case of either clause (A) or (B) above, (x) such acceleration
or action to enforce payment, as the case may be, has been rescinded or
annulled, (y) such debt has been discharged or (z) a sum sufficient to
discharge in full such debt has been deposited in trust by or on behalf of
the Company, in each case, within a period of 10 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Securities, a written notice specifying such default or
defaults and stating that such notice is a "Notice of Default" hereunder; or
(v) certain events of bankruptcy or insolvency. If an Event of Default
occurs and is continuing, the Trustee, or the Holders of at least 25% in
aggregate Principal Amount of the Securities at the time outstanding, may
declare all the Securities to be due and payable immediately. Certain events
of bankruptcy or insolvency are Events of Default that will result in the
Securities becoming due and payable immediately upon the occurrence of such
Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing Default (except a Default in payment
of amounts specified in clause (i) above) if it determines that withholding
notice is in their interests.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations
owed to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.
16. 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. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
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<PAGE>
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Certificate of Authentication on the other side of
this Security.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common) and CUST (=custodian), and UNIF TRANS MIN ACT (=Uniform
Transfers to Minors Act).
19. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
_______________________
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
Jacor Communications, Inc.
50 East River Center Boulevard
12th Floor
Covington, Kentucky 41011
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<PAGE>
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill To convert this Security into
in the form below: Common Stock of the Company,
check the box:
I or we assign and transfer -----------
this Security to : :
: :
------------ -----------
(Insert assignee's soc.
sec. or tax ID no.) To convert only part of this
Security, state the Principal
______________________________ Amount to be converted (which must be
$1,000 or an integral multiple of $1,000):
______________________________
------------------------------
______________________________ :$ :
------------------------------
______________________________
(Print or type assignee's
name, address and zip code) If you want the stock
certificate made out in
and irrevocably appoint another person's name, fill
____________ agent in the form below:
to transfer this Security on
the books of the Company. The ------------------------------
agent may substitute another : :
to act for him. ------------------------------
(Insert person's soc.
EXCHANGE FORM sec. or tax ID no.)
To exchange its beneficial ______________________________
interest in Global Security
held by the Depositary for a ______________________________
Security or Securities in
definitive, registered form of ______________________________
authorized denominations and an
aggregate principal amount equal ______________________________
to its beneficial interest in (Print or type person's name,
such Global Security, a Holder address and zip code)
should check the box
-------
: :
: :
-------
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<PAGE>
_________________________________________________________________
Date:________________ Your Signature:___________________*
_________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES***
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
<TABLE>
<CAPTION>
Amount of Amount of Principal Amount
decrease in increase in at Maturity Signature of
Principal Amount Principal Amount of this Global authorized signatory of
at Maturity at Maturity of this Security following Trustee or
Date of of this Global Global such decrease (or Securities
Exchange Security Security increase) Custodian
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
A-15
<PAGE>
____________________
*** This schedule should only be added if the Security is issued in global
form.
A-16
<PAGE>
---------------------------------------
---------------------------------------
JACOR COMMUNICATIONS COMPANY
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
PARENT GUARANTOR
AND
UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY
GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK
TRUSTEE
-------------------------------
INDENTURE
Dated as of January [ ], 1998
---------------
$[ ]
[ ]% Senior Subordinated Notes due 2008
-----------------------------------
-----------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA . . . . . . . . . 30
SECTION 1.3. Rules of Construction . . . . . . . . . . . . . . . 30
ARTICLE II
THE SECURITIES . . . . . . . . . . . . 31
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . . 31
SECTION 2.2. Execution and Authentication. . . . . . . . . . . . 32
SECTION 2.3. Registrar and Paying Agent. . . . . . . . . . . . . 33
SECTION 2.4. Paying Agent to Hold Assets
in Trust. . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.5. Securityholder Lists. . . . . . . . . . . . . . . . 34
SECTION 2.6. Transfer and Exchange . . . . . . . . . . . . . . . 35
SECTION 2.7. Replacement Securities. . . . . . . . . . . . . . . 38
SECTION 2.8. Outstanding Securities. . . . . . . . . . . . . . . 39
SECTION 2.9. Treasury Securities . . . . . . . . . . . . . . . . 39
SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . 40
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . 40
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . 40
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 42
ARTICLE III
REDEMPTION. . . . . . . . . . . . . . . 42
SECTION 3.1. Right of Redemption . . . . . . . . . . . . . . . . 42
SECTION 3.2. Notices to Trustee and
Paying Agent. . . . . . . . . . . . . . . . . . . 43
SECTION 3.3. Selection of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . 43
SECTION 3.4. Notice of Redemption. . . . . . . . . . . . . . . . 44
i
<PAGE>
PAGE
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SECTION 3.5. Effect of Notice of Redemption. . . . . . . . . . . 45
SECTION 3.6. Deposit of Redemption Price . . . . . . . . . . . . 45
SECTION 3.7. Securities Redeemed in Part . . . . . . . . . . . . 46
ARTICLE IV
COVENANTS. . . . . . . . . . . . . . . 46
SECTION 4.1. Payment of Securities . . . . . . . . . . . . . . . 46
SECTION 4.2. Maintenance of Office or Agency . . . . . . . . . . 47
SECTION 4.3. Limitation on Restricted Payments.. . . . . . . . . 48
SECTION 4.4. Corporate Existence . . . . . . . . . . . . . . . . 49
SECTION 4.5. Payment of Taxes and Other Claims . . . . . . . . . 49
SECTION 4.6. Maintenance of Properties
and Insurance.. . . . . . . . . . . . . . . . . . 50
SECTION 4.7. Compliance Certificate; Notice
of Default. . . . . . . . . . . . . . . . . . . . 50
SECTION 4.8. Reports . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.9. Limitation on Status as
Investment Company. . . . . . . . . . . . . . . . 52
SECTION 4.10. Limitation on Transactions
with Affiliates . . . . . . . . . . . . . . . . . 52
SECTION 4.11. Limitation on Incurrence of
Additional Indebtedness and
Disqualified Capital Stock. . . . . . . . . . . . 53
SECTION 4.12 Limitations on Dividends
and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . 53
SECTION 4.13. Limitations on Layering
Indebtedness; Liens . . . . . . . . . . . . . . . 55
SECTION 4.14. Limitation on Sale of Assets
and Subsidiary Stock. . . . . . . . . . . . . . . 55
SECTION 4.15. Limitation on Asset Swaps . . . . . . . . . . . . . 61
SECTION 4.16. Limitation on Lines of Business . . . . . . . . . . 62
SECTION 4.17. Restriction on Sale and Issuance
of Subsidiary Stock . . . . . . . . . . . . . . . 62
SECTION 4.18. Waiver of Stay, Extension or
Usury Laws. . . . . . . . . . . . . . . . . . . . 62
ii
<PAGE>
PAGE
----
ARTICLE V
SUCCESSOR CORPORATION. . . . . . . . . . . . 63
SECTION 5.1. Limitation on Merger, Sale or
Consolidation. . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.2. Successor Corporation Substituted. . . . . . . . . . . . 64
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . 64
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . 64
SECTION 6.2. Acceleration of Maturity Date;
Rescission and Annulment . . . . . . . . . . . . . . . 66
SECTION 6.3. Collection of Indebtedness
and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.4. Trustee May File Proofs of
Claim. . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.5. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.6. Priorities . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.7. Limitation on Suits. . . . . . . . . . . . . . . . . . . 71
SECTION 6.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.9. Rights and Remedies Cumulative . . . . . . . . . . . . . 73
SECTION 6.10. Delay or Omission Not Waiver . . . . . . . . . . . . . . 73
SECTION 6.11. Control by Holders . . . . . . . . . . . . . . . . . . . 73
SECTION 6.12. Waiver of Past Default . . . . . . . . . . . . . . . . . 74
SECTION 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . 74
SECTION 6.14. Restoration of Rights and
Remedies . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . 75
iii
<PAGE>
PAGE
----
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . 75
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . 77
SECTION 7.3. Individual Rights of Trustee. . . . . . . . . . . . 78
SECTION 7.4. Trustee's Disclaimer. . . . . . . . . . . . . . . . 78
SECTION 7.5. Notice of Default . . . . . . . . . . . . . . . . . 79
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . . 79
SECTION 7.7. Compensation and Indemnity. . . . . . . . . . . . . 79
SECTION 7.8. Replacement of Trustee. . . . . . . . . . . . . . . 81
SECTION 7.9. Successor Trustee by Merger, Etc. . . . . . . . . . 82
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . 82
SECTION 7.11. Preferential Collection of
Claims Against the Company. . . . . . . . . . . . 82
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT
DEFEASANCE . . . . . . . . . . . . . . . 83
SECTION 8.1. Discharge; Option to Effect
Legal Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 83
SECTION 8.2. Legal Defeasance and Discharge. . . . . . . . . . . 83
SECTION 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . 84
SECTION 8.4. Conditions to Legal or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 85
SECTION 8.5. Deposited Cash and U.S.
Government Obligations to
be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . . . . . 87
SECTION 8.6. Repayment to the Company. . . . . . . . . . . . . . 87
SECTION 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . 88
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . 89
SECTION 9.1. Supplemental Indentures
Without Consent of Holders . . . . . . . . . . . . 89
SECTION 9.2. Amendments, Supplemental
iv
<PAGE>
PAGE
----
Indentures and Waivers
with Consent of Holders. . . . . . . . . . . . . . 90
SECTION 9.3. Compliance with TIA.. . . . . . . . . . . . . . . . 91
SECTION 9.4. Revocation and Effect of Consents . . . . . . . . . 92
SECTION 9.5. Notation on or Exchange of
Securities . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.6. Trustee to Sign Amendments, Etc.. . . . . . . . . . 93
ARTICLE X
SUBORDINATION. . . . . . . . . . . . . . 93
SECTION 10.1. Securities Subordinated to
Senior Debt. . . . . . . . . . . . . . . . . . . . 93
SECTION 10.2. No Payment on Securities in
Certain Circumstances. . . . . . . . . . . . . . . 94
SECTION 10.3. Securities Subordinated to Prior
Payment of All Senior Debt on
Dissolution, Liquidation or
Reorganization . . . . . . . . . . . . . . . . . . 96
SECTION 10.4. Securityholders to Be Subrogated
to Rights of Holders of
Senior Debt. . . . . . . . . . . . . . . . . . . . 97
SECTION 10.5. Obligations of the Company and
the Guarantors Unconditional . . . . . . . . . . . 98
SECTION 10.6. Trustee Entitled to Assume
Payments Not Prohibited in
Absence of Notice . . . . . . . . . . . . . . . . 100
SECTION 10.7. Application by Trustee of
Assets Deposited with It. . . . . . . . . . . . . 100
SECTION 10.8. Subordination Rights Not
Impaired by Acts or Omissions
of the Company, the Guarantors
or Holders of Senior Debt . . . . . . . . . . . . 100
SECTION 10.9. Securityholders Authorize
Trustee to Effectuate
Subordination of Securities. . . . . . . . . . . 101
SECTION 10.10. Right of Trustee to Hold
Senior Debt. . . . . . . . . . . . . . . . . . . 101
v
<PAGE>
PAGE
----
SECTION 10.11. Article X Not to Prevent Events
of Default . . . . . . . . . . . . . . . . . . . .102
SECTION 10.12. No Fiduciary Duty of Trustee to
Holders of Senior Debt . . . . . . . . . . . . . .102
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE. . . . . . . . . . .102
SECTION 11.1. Repurchase of Securities at
Option of the Holder Upon
a Change of Control. . . . . . . . . . . . . . . .102
ARTICLE XII
GUARANTY . . . . . . . . . . . . . . . .106
SECTION 12.1. Guaranty . . . . . . . . . . . . . . . . . . . . . .106
SECTION 12.2. Execution and Delivery of
Guaranty. . . . . . . . . . . . . . . . . . . . . .109
SECTION 12.3. Subsidiary Guarantors. . . . . . . . . . . . . . . .109
SECTION 12.4. Guarantor May Consolidate, Etc.,
on Certain Terms. . . . . . . . . . . . . . . . . .110
SECTION 12.5. Release of Guarantors. . . . . . . . . . . . . . . .111
SECTION 12.6. Certain Bankruptcy Events. . . . . . . . . . . . . .112
ARTICLE XIII
MISCELLANEOUS . . . . . . . . . . . . . .112
SECTION 13.1. TIA Controls . . . . . . . . . . . . . . . . . . . .112
SECTION 13.2. Notices. . . . . . . . . . . . . . . . . . . . . . .112
SECTION 13.3. Communications by Holders with
Other Holders . . . . . . . . . . . . . . . . . . .114
SECTION 13.4. Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . . .114
SECTION 13.5. Statements Required in
Certificate or Opinion. . . . . . . . . . . . . . .114
SECTION 13.6. Rules by Trustee, Paying Agent,
vi
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PAGE
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Registrar. . . . . . . . . . . . . . . . . . . . .115
SECTION 13.7. Non-Business Days . . . . . . . . . . . . . . . . .115
SECTION 13.8. Governing Law . . . . . . . . . . . . . . . . . . .115
SECTION 13.9. No Adverse Interpretation of
Other Agreements . . . . . . . . . . . . . . . . .116
SECTION 13.10. No Recourse against Others. . . . . . . . . . . . .116
SECTION 13.11. Successors. . . . . . . . . . . . . . . . . . . . .117
SECTION 13.12. Duplicate Originals . . . . . . . . . . . . . . . .117
SECTION 13.13. Severability. . . . . . . . . . . . . . . . . . . .117
SECTION 13.14. Table of Contents, Headings, Etc. . . . . . . . . .117
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
Exhibit A - Form of Security . . . . . . . . . . . . . . . . . . . . . . . .A-1
vii
<PAGE>
INDENTURE, dated as of January [ ], 1998, by and among Jacor
Communications Company, a Florida corporation (the "Company"), Jacor
Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the
Subsidiary Guarantors referred to below and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section 4.14.
"ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital
Stock of any person existing at the time such person becomes a Subsidiary of
the Company, including by designation, or is merged or consolidated into or
with either of the Company or one of its Subsidiaries; provided, that such
Indebtedness was not incurred in anticipation of, or in connection with, and
was outstanding prior to such person becoming a Subsidiary of the Company.
"ACQUISITION" means the purchase or other acquisition of any person
or substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, the term "control" means the power to direct
the management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, PROVIDED, that, a Beneficial Owner of 10% or more of
the total voting power normally entitled to vote in the election of
directors, managers or trustees, as applicable, shall for such purposes be
deemed to constitute control.
"AFFILIATE TRANSACTION" shall have the meaning specified in Section
4.10.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
<PAGE>
"ASSET SALE" shall have the meaning specified in Section 4.14.
"ASSET SALE DATE" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PERIOD" shall have the meaning specified in Section
4.14.
"ASSET SALE OFFER PRICE" shall have the meaning specified in Section
4.14.
"ASSET SWAP" means the execution of a definitive agreement, subject
only to regulatory approval and other customary closing conditions, that the
Company in good faith believes will be satisfied, for a substantially
concurrent purchase and sale, or exchange, of Productive Assets between the
Company or any of its Subsidiaries and another person or group of affiliated
persons; provided that any amendment to or waiver of any closing condition
which individually or in the aggregate is material to the Asset Swap shall be
deemed to be a new Asset Swap.
"AVERAGE LIFE" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum
of (a) the product of the number of years from the date of determination to
the date or dates of each successive scheduled principal (or redemption)
payment of such security or instrument and (b) the amount of each such
respective principal (or redemption) payment by (ii) the sum of all such
principal (or redemption) payments.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the
definition of Change of Control has the meaning attributed to it in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date)
whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
"BOARD OF DIRECTORS" means, with respect to any person, the Board
of Directors of such person or any committee of the Board of Directors of
such person
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authorized, with respect to any particular matter, to exercise the power of
the Board of Directors of such person.
"BOARD RESOLUTION" means, with respect to any person, a duly
adopted resolution of the Board of Directors of such or the executive
committee of such Board of Directors of such person.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CAPITAL LEASE" means a lease, the payments on which would be
capitalized for financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means rental obligations under a
lease that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as
determined in accordance with GAAP.
"CASH" or "CASH" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"CASH EQUIVALENT" means (i) securities issued directly or fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) or (ii) time deposits
and certificates of deposit with, and commercial paper issued by the parent
corporation of, any domestic commercial bank of recognized standing having
capital and surplus in excess of $500.0 million and commercial paper issued
by others rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by Moody's Investors
Service, Inc. and in each case maturing within one year after the date of
acquisition.
"CHANGE OF CONTROL" means any transaction or series of transactions
in which any of the following occurs:
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(a) any merger or consolidation of the Company with or into
any person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of any of the assets of the Company, on
a consolidated basis, in one transaction or a series of related transactions,
if, immediately after giving effect to such transaction(s), any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act, whether or not applicable) (other than an Excluded Person)
is or becomes the "beneficial owner," directly or indirectly, of more than
50% of the total voting power in the aggregate normally entitled to vote in
election of directors, managers, or trustees, as applicable, of the
transferee(s) or surviving entity or entities,
(b) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of Capital Stock of the Company then outstanding
normally entitled to vote in elections of directors, or
(c) during any period of 12 consecutive months after the
Issue Date, individuals who at the beginning of any such 12-month period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board or whose nomination for election by
the shareholders of JCC was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"COMMISSION" means the SEC.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"CONSOLIDATED" or "CONSOLIDATED" means determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
income tax expense, (ii) Consolidated depreciation and amortization expense,
provided that consolidated depreciation and amortization of a Subsidiary that
is a less than wholly owned Subsidiary shall only be added to the extent of
the equity interest of the Company in such Subsidiary, (iii) other noncash
charges (including amortization of goodwill and other intangibles), (iv)
Consolidated Fixed Charges, and less the amount of all cash payments made by
such person or any of its Subsidiaries during such period to the extent such
payments relate to non-cash charges that were added back in determining
Consolidated EBITDA for such period or any prior period.
"CONSOLIDATED FIXED CHARGES" of any person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued,
or scheduled to be paid or accrued (including, in accordance with the
following sentence, interest attributable to Capitalized Lease Obligations)
of such person and its Consolidated Subsidiaries during such period,
including (i) original issue discount and non-cash interest payments or
accruals on any Indebtedness, (ii) the interest portion of all deferred
payment obligations, and (iii) all commissions, discounts and other fees and
charges owed with respect to bankers' acceptances and letters of credit
financings and currency and Interest Swap and Hedging Obligations, in each
case to the extent attributable to such period, and (b) the amount of
dividends accrued or payable (or guaranteed) by such person or any of its
Consolidated Subsidiaries in respect of Preferred Stock (other than by
Subsidiaries of such person to such person or such person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Company to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP and (y) interest
expense attributable to any Indebtedness represented by the guaranty by such
person or a Subsidiary of such person of an obligation of another person
shall be deemed to be the interest expense attributable to the Indebtedness
guaranteed.
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"CONSOLIDATED NET INCOME" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing
such net income (or loss) and without duplication): (a) all gains or losses
which are either noncash or extraordinary (as determined in accordance with
GAAP) or are either unusual or nonrecurring (including any gain from the sale
or other disposition of assets outside the ordinary course of business or
from the issuance or sale of any capital stock), (b) the net income, if
positive, of any person, other than a wholly owned Consolidated Subsidiary,
in which such person or any of its Consolidated Subsidiaries has an interest,
except to the extent of the amount of any dividends or distributions actually
paid in cash to such person or a wholly owned Consolidated Subsidiary of such
person during such period, but in any case not in excess of such person's PRO
RATA share of such person's net income for such period, (c) the net income or
loss of any person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition, (d) the net income, if
positive, of any of such person's Consolidated Subsidiaries to the extent
that the declaration or payment of dividends or similar distributions is not
at the time permitted by operation of the terms of its charter or bylaws or
any other agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary.
"CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement
reporting purposes with the financial statements of such person in accordance
with GAAP.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3.
"CREDIT FACILITY" means the Credit Agreement dated as of June 12,
1996, as amended and restated as of February 14, 1997, by and among Chase
Manhattan Bank, as Administrative Agent, Banque Paribas, as Documentation
Agent, and Bank of America, Illinois, as Syndication Agent, certain financial
institutions from time to time party thereto, including any related notes,
guarantees, collateral documents, instruments, letters of credit,
reimbursement obligations and other agreements executed by or binding on the
Company, any of its Subsidiaries and/or the Parent Guarantor (or any
successors or assigns) in connection therewith (collectively, the "Related
Documents"), as such Credit Agreement and/or Related Documents may be
amended, restated, supplemented, renewed, replaced or otherwise modified from
time to time whether or not with the same agent, trustee, representative
lenders or holders, and, subject to the proviso to the next succeeding
sentence, irrespective of any changes in the terms and conditions thereof.
Without limiting the generality of the foregoing, the term "Credit Facility"
shall include agreements in respect of Interest Swap and Hedging Obligations
with lenders (or affiliates thereof) party to the Credit Facility and shall
also include any amendment,
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amendment and restatement, renewal, extension, restructuring, supplement or
modification in whole or in part to any Credit Facility and all refundings,
refinancings and replacements in whole or in part of any Credit Facility,
including, without limitation, any agreement or agreements (i) extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby,
(ii) adding or deleting borrowers or guarantors thereunder, (iii) increasing
the amount of Indebtedness incurred thereunder or available to be borrowed
thereunder, provided that on the date such Indebtedness is incurred it would
be permitted by paragraph (f) under the definition of Permitted Indebtedness,
or (iv) otherwise altering the terms and conditions thereof.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.12.
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b),
with respect to any person, Equity Interests of such person that, by its terms
or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Securities, and (b) with respect to
any Subsidiary of such person (including with respect to any Subsidiary of the
Company), any Equity Interests other than any common equity with no preference,
privileges, or redemption or repayment provisions.
"DTC" shall have the meaning specified in Section 2.3.
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"EQUITY INTEREST" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EVENT OF LOSS" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"EXCESS PROCEEDS" shall have the meaning specified in Section 4.14.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related
Persons of such person.
"EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee compensation
arrangements approved by a majority of independent (as to such transactions)
members of the Board of Directors of the Company, (b) dividends permitted under
Section 4.3 of this Indenture payable, in form and amount, on a PRO RATA basis
to all holders of Common Stock of the Parent Guarantor, (c) transactions solely
between the Company and any of its Wholly owned Subsidiaries or solely among
Wholly owned Subsidiaries of the Company, and (d) payments to Zell/Chilmark Fund
L.P or its Affiliates for reasonable and customary fees and expenses for
financial advisory and investment banking services provided to the Parent
Guarantor and the Company, and (e) payments to the Parent Guarantor made in
accordance with the Tax Sharing Agreement.
"EXISTING ASSETS" means assets of the Company existing at the Issue
Date (other than cash, Cash Equivalents or inventory held for resale in the
ordinary course of business) and including proceeds of any sale of such assets
and assets acquired in whole or in part with proceeds from the sale from any
such assets.
"EXISTING INDEBTEDNESS" means, with respect to the Company,
Indebtedness existing or outstanding at the Issue Date.
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"Fair Market Value" or "fair market value" means, with respect to any
assets or properties, the amount at which such assets or properties would change
hands between a willing buyer and a willing seller, within a commercially
reasonable time, each having reasonable knowledge of the relevant facts, neither
being under a compulsion to sell or buy, as such amount is determined by (i) the
Board of Directors of either of the Company acting in good faith or (ii) an
appraisal or valuation firm of national or regional standing selected by the
Company, with experience in the appraisal or valuation of properties or assets
of the type for which Fair Market Value is being determined.
"FINAL PUT DATE" shall have the meaning specified in Section 4.14.
"FUTURE SUBSIDIARY GUARANTOR" shall have the meaning specified in
Section 12.3.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession as in effect on the Issue Date unless otherwise specified.
"GLOBAL SECURITY" means a Security that contains the paragraph and
schedule referred to in footnotes 1 and 2, respectively, in the form of Security
attached hereto as Exhibit A.
"GUARANTOR" means (i) the Parent Guarantor identified in the following
sentence and (ii) any Subsidiary Guarantors that are or become Guarantors
pursuant to the terms of this Indenture, but excluding any Persons whose
guarantees have been released pursuant to the terms of this Indenture. The
Parent Guarantor is Jacor Communications, Inc., a Delaware corporation.
"GUARANTY" shall have the meaning provided in Section 12.1.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a Security
is registered on the Registrar's books.
"INCUR" or "INCUR" shall have the meaning specified in Section 4.11.
"INCURRENCE DATE" shall have the meaning specified in Section 4.11.
"INDEBTEDNESS" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such any person, (i) in
respect of borrowed
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money (whether or not the recourse of the lender is to the whole of the
assets of such person or only to a portion thereof), (ii) evidenced by bonds,
notes, debentures or similar instruments, (iii) representing the balance
deferred and unpaid of the purchase price of any property or services, except
those incurred in the ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors, (iv) evidenced by bankers'
acceptances or similar instruments issued or accepted by banks, (v) relating
to any Capitalized Lease Obligation, or (vi) evidenced by a letter of credit
or a reimbursement obligation of such person with respect to any letter of
credit; (b) all net obligations of such person under Interest Swap and
Hedging Obligations; (c) all liabilities and obligations of others of the
kind described in the preceding clause (a) or (b) that such person has
guaranteed or that is otherwise its legal liability or which are secured by
any assets or property of such person and all obligations to purchase, redeem
or acquire any Equity Interests; and (d) all Disqualified Capital Stock of
such person (valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends). For purposes
hereof, the "maximum fixed repurchase price" of any Disqualified Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the Fair Market Value of such
Disqualified Capital Stock, such Fair Market Value to be determined in good
faith by the board of directors of the issuer (or managing general partner of
the issuer) of such Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INTEREST PAYMENT DATE" means the stated due date of an installment of
interest on the Securities.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"INVESTMENT" by any person in any other person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such person (whether for cash, property, services, securities or
otherwise) of capital stock,
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bonds, notes, debentures, partnership or other ownership interests or other
securities, including any options or warrants, of such other person or any
agreement to make any such acquisition; (b) the making by such person of any
deposit with, or advance, loan or other extension of credit to, such other
person (including the purchase of property from another person subject to an
understanding or agreement, contingent or otherwise, to resell such property
to such other person) or any commitment to make any such advance, loan or
extension (but excluding accounts receivable or deposits arising in the
ordinary course of business); (c) other than guarantees of Indebtedness of
the Company or any Guarantors to the extent permitted by the covenant
"Limitation on Incurrence of Additional Indebtedness and Disqualified Capital
Stock" or the definition of Permitted Indebtedness, the entering into by such
person of any guarantee of, or other credit support or contingent obligation
with respect to, Indebtedness or other liability of such other person (other
than the endorsement of instruments for deposit or collection in the ordinary
course of business); and (d) the making of any capital contribution by such
person to such other person.
"ISSUE DATE" means the date of first issuance of the Securities under
this Indenture.
"JACOR" means Jacor Communications, Inc., a Delaware corporation.
"JUNIOR SECURITY" means any Qualified Capital Stock and any
Indebtedness of the Company or a Guarantor, as applicable, that is subordinated
in right of payment to Senior Debt at least to the same extent as the Securities
or the Guarantees, as applicable, and has no scheduled installment of principal
due, by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities; provided, that in the case of subordination in
respect of Senior Debt under the Credit Facility, "Junior Security" shall mean
any Qualified Capital Stock and any Indebtedness of the Company or the
Guarantors, as applicable, that (i) has a final maturity date occurring after
the final maturity date of, all Senior Debt outstanding under the Credit
Facility on the date of issuance of such Qualified Capital Stock or
Indebtedness, (ii) is unsecured, (iii) has an Average Life longer than the
security for which such Qualified Capital Stock or Indebtedness is being
exchanged, and (iv) by their terms or by law are subordinated to Senior Debt
outstanding under the Credit Facility on the date of issuance of such Qualified
Capital Stock or Indebtedness at least to the same extent as the Securities.
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2.
"LEVERAGE RATIO" of any person on any date of determination (the
"Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of the
aggregate outstanding amount of Indebtedness and Disqualified Capital Stock of
such person and its Subsidiaries as of the date of calculation on a consolidated
basis in accordance with
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GAAP to (b) the aggregate amount of Consolidated EBITDA of such person
attributable to continuing operations and business (exclusive of amounts
attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period; PROVIDED, that for purposes of such
calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date
shall be assumed to have occurred on the first day of the Reference Period,
(ii) transactions giving rise to the need to calculate the Leverage Ratio
shall be assumed to have occurred on the first day of the Reference Period,
(iii) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of such
Reference Period, and (iv) the Consolidated Fixed Charges of such person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be
computed on a PRO FORMA basis as if the average rate in effect from the
beginning of the Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation (which
shall remain in effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate on the date
of computation, in which case such rate (whether higher or lower) shall be
used.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"MATURITY DATE" means, when used with respect to the Securities, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of this Indenture regarding
acceleration of Indebtedness or any Change of Control Offer or Asset Sale
Offer).
"NET CASH PROCEEDS" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Capital
Stock and by the Company and its Subsidiaries in respect of an Asset Sale or an
Event of Loss plus, in the case of an issuance of Qualified Capital Stock of the
Company upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of cash
originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary), expenses (including, without limitation,
the fees and expenses
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of legal counsel and investment banking fees and expenses) incurred in
connection with such Asset Sale, Event of Loss or sale of Qualified Capital
Stock, and, in the case of an Asset Sale only, less an amount (estimated
reasonably and in good faith by the Company or the amount actually incurred,
if greater) of income, franchise, sales and other applicable taxes required
to be paid by the Company or any of its Subsidiaries in connection with such
Asset Sale.
"9 3/4% NOTES" means the 9 3/4% Senior Subordinated Notes due
December 15, 2006 issued by the Company pursuant to an Indenture, dated as of
December 17, 1996, by and among Jacor Communications Company, Jacor
Communications, Inc., as Parent Guarantor, the Subsidiary Guarantors named
therein and The Bank of New York, as Trustee.
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
6.1(3).
"OBLIGATION" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Securities or the Indenture.
"OFFICER" means, with respect to the Company or the Guarantors, the
Chief Executive Officer, the President, any Senior Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company or Guarantor (as applicable).
"OFFICERS' CERTIFICATE" means, with respect to the Company or the
Guarantors, a certificate signed by two Officers or by an Officer and an
Assistant Secretary of the Company or the Guarantors (as applicable) and
otherwise complying with the requirements of Sections 13.4 and 13.5, and
delivered to the Trustee or an Agent, as applicable.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee (which may include counsel to the Trustee
or the Company including an employee of the Company) or an Agent, as applicable,
complying with the requirements of Sections 13.4 and 13.5, and delivered to the
Trustee or an Agent, as applicable.
"OUTSTANDING" as used with reference to the Securities shall have the
meaning specified in Section 2.8 hereof.
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"PARENT" or "PARENT" of any person means a corporation which at the
date of determination owns, directly or indirectly, a majority of the Voting
Stock of such person or of a Parent of such person.
"PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware
corporation.
"PAYING AGENT" has the meaning specified in Section 2.3.
"PAYMENT DEFAULT" has the meaning specified in Section 10.2.
"PAYMENT NOTICE" shall have the meaning set out in Section 10.2.
"PERMITTED INDEBTEDNESS" means any of the following:
(a) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit and performance
bonds (to the extent that such incurrence does not result in the incurrence of
any obligation to repay any obligation relating to borrowed money of others),
all in the ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Company's industry;
provided, that the aggregate principal amount outstanding of such Indebtedness
(including any Indebtedness issued to refinance, refund or replace such
Indebtedness) shall at no time exceed $5.0 million;
(b) the Company may incur Indebtedness to any Wholly owned
Subsidiary Guarantor, and any Wholly owned Subsidiary Guarantor may incur
Indebtedness to any other Wholly owned Subsidiary Guarantor or to the Company;
provided, that in the case of Indebtedness of the Company, such obligations
shall be unsecured and subordinated in all respects to the Company's obligations
pursuant to the Securities and the date of any event that causes such Subsidiary
Guarantor to no longer be a Wholly owned Subsidiary shall be an Incurrence Date;
(c) the Company and the Guarantors may incur Indebtedness
evidenced by the Securities and the Guarantees and represented by this Indenture
up to the amounts specified therein as of the date hereof;
(d) the Company and the Guarantors, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, which Indebtedness was incurred pursuant to the
Leverage Ratio in Section 4.11 hereof or clause (c) of this definition;
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(e) the Company and its Subsidiaries may incur Indebtedness in
an aggregate amount outstanding at any time (including any Indebtedness issued
to refinance, replace, or refund such Indebtedness) of up to $5.0 million;
(f) the Company and the Guarantors may incur Indebtedness
incurred pursuant to the Credit Facility up to an aggregate principal amount
outstanding (including any Indebtedness issued to refinance, refund or replace
such Indebtedness in whole or in part) at any time of $600.0 million, plus
accrued interest and additional expense and reimbursement obligations with
respect thereto and such additional amounts as may be deemed to be outstanding
in the form of Interest Swap and Hedging Obligations with lenders (or affiliates
thereof) party to the Credit Facility, minus the amount of any such Indebtedness
retired with Net Cash Proceeds from any Asset Sale;
(g) the Company and the Guarantors may incur Indebtedness under
Interest Swap and Hedging Obligations that do not increase the Indebtedness of
the Company other than as a result of fluctuations in interest or foreign
currency exchange rates provided that such Interest Swap and Hedging Obligations
are incurred for the purpose of providing interest rate protection with respect
to Indebtedness permitted under this Indenture or to provide currency exchange
protection in connection with revenues generated in currencies other than U.S.
dollars;
(h) Subsidiaries may incur Acquired Indebtedness if the Company
at the time of such incurrence could incur such Indebtedness pursuant to the
Leverage Ratio in Section 4.11; and
(i) the Company and its Subsidiaries may incur Indebtedness
existing on the Issue Date.
"PERMITTED INVESTMENT" means:
(a) Investments in any of the Securities;
(b) Cash Equivalents;
(c) intercompany loans to the extent permitted under clause (b)
of the definition of "Permitted Indebtedness" and intercompany security
agreements relating thereto;
(d) loans, advances or investments in existence on the Issue
Date;
(e) Investments in a person substantially all of whose assets
are of a type generally used in a Related Business (an "Acquired Person") if, as
a result of such
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Investments, (i) the Acquired Person immediately thereupon is or becomes a
Subsidiary of the Company, or (ii) the Acquired Person immediately thereupon
either (1) is merged or consolidated with or into the Company or any of its
Subsidiaries and the surviving person is the Company or a Subsidiary of the
Company or (2) transfers or conveys all or substantially all of its assets,
or is liquidated into, the Company or any of its Subsidiaries;
(f) Investments in a person with whom the Company or any of its
Subsidiaries have entered into, (i) local market agreements or time brokerage
agreements pursuant to which the Company or any one of its Subsidiaries programs
substantial portions of the broadcast day on such person's radio broadcast
station(s) and sells advertising time during such program segments for its own
account or (ii) joint sales agreements pursuant to which the Company or any of
its Subsidiaries sells substantially all of the advertising time for such
person's radio broadcast station(s);
(g) Investments that are in persons which will have the purpose
of furthering the operations of the Company and its Subsidiaries not to exceed
$10.0 million; and
(h) demand deposit accounts maintained in the ordinary course of
business.
"PERMITTED LIEN" means:
(a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes,
assessments or other charges or levies not yet subject to penalty or which are
being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP as of the date of determination;
(c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP as of the date of determination;
(d) Liens securing the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of
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business and deposits made in the ordinary course of business to secure
obligations of public utilities;
(e) easements, rights-of-way, zoning, building restrictions,
reservations, encroachments, exceptions, covenants, similar restrictions and
other similar encumbrances or title defects which, singly or in the aggregate,
do not in any case materially detract from the value of the property, subject
thereto (as such property is used by the Company or any of its Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(f) Liens arising by operation of law in connection with
judgments, provided, that the execution or other enforcement of such Liens is
effectively stayed and that the claims secured thereby are being contested in
good faith by appropriate proceedings;
(g) pledges or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security legislation;
(h) Liens securing Indebtedness of a person existing at the time
such person becomes a Subsidiary or is merged with or into the Company or a
Subsidiary or Liens securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior to the date of
such acquisition, merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets;
(i) leases or subleases granted to other persons in the ordinary
course of business not materially interfering with the conduct of the business
of the Company or any of its Subsidiaries or materially detracting from the
value of the relative assets of the Company or any of its Subsidiaries;
(j) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(k) Liens securing Refinancing Indebtedness incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens securing
such refinanced Indebtedness provided that the Indebtedness secured is not
increased and the lien is not extended to any additional assets or property;
(l) Liens in favor of the Administrative Agent pursuant to the
Credit Facility; and
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(m) Liens on property of a Subsidiary of the Company provided
that such Liens secure only obligations owing by such Subsidiary to the
Company or another Subsidiary of the Company.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"PLAN OF LIQUIDATION" means a plan that provides for, contemplates
or the effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
otherwise than as an entirety or substantially as an entirety and (ii) the
distribution of all or substantially all of the proceeds of such sale, lease,
conveyance or other disposition and all or substantially all of the remaining
assets of the Company to holders of Capital Stock of the Company.
"PREFERRED STOCK" as applied to the Capital Stock of any
corporation, means Capital Stock ranking prior to the shares of any other
class of Capital Stock of said corporation as to the payment of dividends or
the distribution of assets on any voluntary or involuntary liquidation.
"PRESENT SUBSIDIARY GUARANTORS" means After Midnite Entertainment,
Inc.; Broadcast Finance, Inc.; Cine Films, Inc.; Cine Guarantors, Inc.; Cine
Guarantors II, Inc.; Cine Guarantors II, Ltd.; Cine Mobile Systems Int'l.
N.V.; Cine Movil S.A. de C.V.; Citicasters Co.; EFM Programming, Inc.; F.M.I.
Pennsylvania, Inc.; GACC-N26LB, Inc.; Great American Merchandising Group,
Inc.; Great American Television Productions, Inc.; Inmobilaria Radial, S.A.
de C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Charleston, Inc.; Jacor Broadcasting of Colorado, Inc.;
Jacor Broadcasting of Florida, Inc.; Jacor Broadcasting of Knoxville, Inc.;
Jacor Broadcasting of Las Vegas, Inc.; Jacor Broadcasting of Las Vegas II;
Jacor Broadcasting of Louisville, Inc.; Jacor Broadcasting of Louisville II,
Inc.; Jacor Broadcasting of Salt Lake City, Inc.; Jacor Broadcasting of Salt
Lake City II, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting
of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting
of Tampa Bay, Inc.; Jacor Broadcasting of Toledo, Inc.; Jacor Broadcasting of
Youngstown, Inc.; Jacor Licensee of Charleston, Inc.; Jacor Licensee of
Kansas City, Inc., Jacor Licensee of Las Vegas, Inc.; Jacor Licensee of Las
Vegas II, Inc.; Jacor Licensee of Louisville, Inc.; Jacor Licensee of
Louisville II, Inc.; Jacor Licensee of Salt Lake City, Inc.; Jacor Licensee
of Salt Lake City II, Inc.; Jacor Cable, Inc.; Jacor/Premiere Holding, Inc.;
JBSL, Inc.; Location Productions, Inc.; Location Productions II, Inc.;
Multivense Acquisition Corp.; Noble Broadcast Center, Inc.; Noble Broadcast
Group, Inc.; Noble
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Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of
Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble Broadcast of San
Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing
Group, Inc.; NSN Network Services, Ltd.; Premiere Radio Networks, Inc.;
Radio-Active Media, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio,
Inc.; The Sy Fischer Company Agency, Inc.; VTTV Productions; and WHOK, Inc.,
each a direct or indirect subsidiary of the Company or any successor entity,
whether by merger, consolidation, change of name or otherwise.
"PRO RATA PORTION" shall have the meaning specified in Section 12.1.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by the
Company and its Subsidiaries in a Related Business.
"PROPERTY" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"PUBLIC OFFERING" means a firm commitment underwritten primary
offering of Capital Stock of the Parent Guarantor or the Company.
"QUALIFIED CAPITAL STOCK" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"QUALIFIED EXCHANGE" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Capital Stock or Indebtedness
of the Company issued on or after the Issue Date with the Net Cash Proceeds
received by the Company from the substantially concurrent sale of Qualified
Capital Stock or any exchange of Qualified Capital Stock for any Capital
Stock or Indebtedness issued on or after the Issue Date.
"RECORD DATE" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to
Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest to the Redemption Date
(subject to the provisions of Section 3.5).
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"REFERENCE PERIOD" with regard to any Person means the four full
fiscal quarters (or such lesser period during which such person has been in
existence) ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Securities or this Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness or Disqualified
Capital Stock (a) issued in exchange for, or the proceeds from the issuance
and sale of which are used substantially concurrently to repay, redeem,
defease, refund, refinance, discharge or otherwise retire for value, in whole
or in part, or (b) constituting an amendment, modification or supplement to,
or a deferral or renewal of ((a) and (b) above are, collectively, a
"Refinancing"), any Indebtedness or Disqualified Capital Stock in a principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
not to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing) the lesser of (i) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
of the Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if
such Indebtedness being Refinanced was issued with an original issue
discount, the accredited value thereof (as determined in accordance with
GAAP) at the time of such Refinancing; provided, that (A) such Refinancing
Indebtedness of any Subsidiary of the Company shall only be used to Refinance
outstanding Indebtedness or Disqualified Capital Stock of such Subsidiary,
(B) such Refinancing Indebtedness shall (x) not have an Average Life shorter
than the Indebtedness or Disqualified Capital Stock to be so refinanced at
the time of such Refinancing and (y) in all respects, be no less subordinated
or junior, if applicable, to the rights of Holders of the Securities than was
the Indebtedness or Disqualified Capital Stock to be refinanced and (C) such
Refinancing Indebtedness shall have no installment of principal (or
redemption payment) scheduled to come due earlier than the scheduled maturity
of any installment of principal of the Indebtedness or Disqualified Capital
Stock to be so refinanced which was scheduled to come due prior to the Stated
Maturity.
"REGISTRAR" shall have the meaning specified in Section 2.3.
"RELATED BUSINESS" means the business conducted (or proposed to be
conducted) by the Company and its Subsidiaries as of the Issue Date and any
and all businesses that in the good faith judgment of the Board of Directors
of the Company are materially related businesses.
"RELATED PERSON" means any person who controls, is controlled by or
is under common control with an Excluded Person; PROVIDED that for purposes
of this definition "control" means the beneficial ownership of more than 50%
of the total voting power of a person normally entitled to vote in the
election of directors, managers or trustees, as applicable of a person.
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"REPRESENTATIVE" means Chase Manhattan Bank in its capacity as
Administrative Agent for lenders pursuant to the New Credit Facility, and not
in its individual capacity as a lender, and any successor Administrative
Agent appointed pursuant to the Credit Facility.
"REQUIRED LENDERS" means lenders under the Credit Facility whose
PRO RATA shares (as defined therein), pursuant to the Credit Facility, are in
the aggregate at least 66 2/3%.
"RESTRICTED INVESTMENT" means, in one or a series of related
transactions any Investment other than investments in Permitted Investments;
provided, however, that a merger of another person with or into the Company
or a Subsidiary Guarantor shall not be deemed to be a Restricted Investment
so long as the surviving entity is the Company or a direct Wholly owned
Subsidiary Guarantor.
"RESTRICTED PAYMENT" means with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any parent or Subsidiary of such person,
(b) any payment on account of the purchase, redemption or other acquisition
or retirement for value of Equity Interests of such person or any Subsidiary
or parent of such person, (c) other than with the proceeds from the
substantially concurrent sale of, or in exchange for, Refinancing
Indebtedness any purchase, redemption, or other acquisition or retirement for
value of, any payment in respect of any amendment of the terms of or any
defeasance of, any Subordinated Indebtedness, directly or indirectly, by such
person or a parent or Subsidiary of such person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking fund
payment, as the case may be, of such Indebtedness and (d) any Restricted
Investment by such person; provided, however, that the term "Restricted
Payment" does not include (i) any dividend, distribution or other payment on
or with respect to Capital Stock of an issuer to the extent payable solely in
shares of Qualified Capital Stock of such issuer; (ii) any dividend,
distribution or other payment to the Company, or to any Wholly owned
Subsidiary Guarantor, by any of the Subsidiaries of the Company; or (iii)
loans or advances to any Guarantor the proceeds of which are used by such
Subsidiary Guarantor in a Related Business activity of such Subsidiary
Guarantor.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the [ ]% Senior Subordinated Notes due 200[ ]
issued under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
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"SECURITIES CUSTODIAN" means the Registrar, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"SECURITYHOLDER" or "HOLDER" means any person in whose name a
Security is registered on the Registrar's books.
"SENIOR DEBT" of the Company or any Guarantor means Indebtedness
(including any monetary obligation in respect of the Credit Facility, and
interest, whether or not such interest is allowed or allowable, accruing on
Indebtedness incurred pursuant to the Credit Facility at the contracted-for
rate whether accruing on, before or after the commencement of any proceeding
under any bankruptcy, insolvency or similar law) of the Company or such
Guarantor arising under the Credit Facility or that, by the terms of the
instrument creating or evidencing such Indebtedness, is expressly designated
Senior Debt and made senior in right of payment to the Securities or the
applicable Guaranty; provided, that in no event shall Senior Debt include (a)
Indebtedness to any Subsidiary of the Company or any officer, director or
employee of the Company or any Subsidiary of the Company, (b) Indebtedness
incurred in violation of the terms of this Indenture, (c) Indebtedness to
trade creditors, (d) Disqualified Capital Stock and (e) any liability for
taxes owed or owing by the Company or such Guarantor.
"SIGNIFICANT SUBSIDIARY" shall have the meaning provided under
Regulation S-X of the Securities Act, in effect on the Issue Date.
"SPECIAL RECORD DATE" for payment of any Defaulted Interest means a
date fixed by the Paying Agent pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any Security, means
January [ ], 200[ ].
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment to the Securities or such
Guaranty, as applicable, in any respect or has a stated maturity on or after
the Stated Maturity.
"SUBSIDIARY" with respect to any person, means (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such person, by such person and one or more Subsidiaries of such
person or by one or more Subsidiaries of such person, (ii) any other person
(other than a corporation) in which such person, one or more Subsidiaries of
such person, or such person and one or more Subsidiaries of such person,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest, or (iii) a partnership in which such person or a
Subsidiary of such person is, at
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the time, a general partner and in which such person, directly or indirectly,
at the date of determination thereof has at least a majority ownership
interest.
"SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors
and (ii) Future Subsidiary Guarantors (other than Excluded Subsidiaries)
that become Subsidiary Guarantors pursuant to the terms of this Indenture,
but excluding any Persons whose guarantees have been released pursuant to the
terms of this Indenture.
"TAX SHARING AGREEMENT" means any agreements between the Company
and the Parent Guarantor pursuant to which the Company may make payments to
the Parent Guarantor with respect to the Company's Federal, state, or local
income or franchise tax liabilities where the Company is included in a
consolidated, unitary or combined return filed by the Parent Guarantor;
PROVIDED, HOWEVER, that the payment by the Company under such agreement may
not exceed the liability of the Company for such taxes if it had filed its
income tax returns as a separate company.
"10 1/8% NOTES" means the 10 1/8% Senior Subordinated Notes due June
15, 2006 issued by JCAC, Inc. (predecessor to the Company) pursuant to an
Indenture, dated as of June 12, 1996, by and among JCAC, Inc., Jacor
Communication Inc., as Initial Guarantor, and First Trust of Illinois,
National Association.
"TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of the execution of this
Indenture, except as provided in Section 9.3.
"TRANSFER INSTRUMENTS" shall have the meaning specified in Section
12.2.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust
department (or any successor group) of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by
the Persons who at that time shall be such officers, and also means, with
respect to a particular corporate trust matter, any other officer of the
Trustee to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America
for the payment of which obligation or guarantee the full faith and credit of
the United States of America is pledged.
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"VOTING STOCK" means, with respect to any specified person, capital
stock with voting power, under ordinary circumstances, to elect directors of
such Person.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity
Interests of which are owned by the Company or one or more Wholly owned
Subsidiaries of the Company.
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
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 SECURITYHOLDER" means a Holder or 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, each
Guarantor and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto,
which Exhibit is part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Security for the Company by manual or facsimile
signature. The Company's seal, if any, shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the
Trustee authenticates the
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Security, the Security shall be valid nevertheless and the Company shall
nevertheless be bound by the terms of the Securities and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate or cause to be authenticated
Securities for original issue in the aggregate principal amount of up to
$[ ] upon a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of
Securities to be authenticated and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at
any time may not exceed $[ ], except as provided in Section 2.7. Upon
the written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Securities in substitution of Securities
originally issued to reflect any name changes of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Affiliate of the
Company, or any of its Subsidiaries.
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or exchange ("Registrar") and an office or agency of
the Company where Securities may be presented for payment ("Paying Agent")
and where notices and demands to or upon the Company in respect of the
Securities may be served. The Company may act as Registrar or Paying Agent,
except that, for the purposes of Articles III, VIII, XI, and Section 4.14 and
as otherwise specified in this Indenture, neither the Company nor any
Affiliate of the Company shall act as Paying Agent. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents.
The term "Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional Paying Agent. The Company hereby initially appoints
the Trustee as Registrar and
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Paying Agent, and by its acknowledgement and acceptance on the signature page
hereto, the Trustee hereby agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent (including the Paying Agent) not a party to this
Indenture, which agreement shall implement the provisions of this Indenture
that relate to such Agent, and shall furnish a copy of each such agreement to
the Trustee. The Company shall promptly notify the Trustee in writing of the
name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities
Custodian with respect to the Global Securities.
Upon the occurrence of an Event of Default described in Section
6.1(4) or (6), the Trustee shall, or upon the occurrence of any other Event
of Default by notice to the Company, the Registrar and the Paying Agent, the
Trustee may, assume the duties and obligations of the Registrar and the
Paying Agent hereunder.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on, the Securities
(whether such assets have been distributed to it by the Company or any other
obligor on the Securities), and shall notify the Trustee in writing of any
Default in making any such payment. If a Subsidiary of the Company acts as
Paying Agent, it shall segregate such assets and hold them as a separate
trust fund for the benefit of the Holders or the Trustee. The Company at any
time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default or any Event of Default, upon
written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent, the Paying Agent (if other
than the Company) shall have no further liability for such assets.
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SECTION 2.5. SECURITYHOLDER LISTS.
The Registrar shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee or any Paying Agent is not the Registrar, the Company shall furnish
to the Trustee on or before the third Business Day preceding each Interest
Payment Date and at such other times as the Trustee or any such Paying Agent
may request in writing a list in such form and as of such date as the Trustee
or any such Paying Agent reasonably may require of the names and addresses of
Holders and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized denominations;
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; PROVIDED,
HOWEVER, that the Definitive Securities surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the
Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive 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
Registrar of a Definitive Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Registrar,
together with written instructions of the Holder directing the Registrar to
make, or to direct the Securities Custodian to make, an endorsement on the
Global Security to reflect an increase in the aggregate principal amount of
the Securities represented by the Global Security, then the Registrar shall
cancel such Definitive Security and cause, or direct the Securities Custodian
to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security
in the appropriate principal amount.
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(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY
FOR A DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a
Global Security may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Registrar of written instructions
or such other form of instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Security, and, if such beneficial interest is being
transferred to the Person designated by the Depositary as being the
beneficial owner, a certification from such person to that effect (in
substantially the form set forth on the reverse of the Security)(all of
which may be submitted by facsimile), then the Registrar or the Securities
Custodian, at the direction of the Trustee, will cause, in accordance with
the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of the Global
Security to be reduced and, following such reduction, the Company will
execute and the Trustee's authenticating agent will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar. The Registrar
shall deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in subsection (f) of this Section 2.6), a
Global Security may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF
DEPOSITARY. If at any time:
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(i) the Depositary for the Securities notifies the
Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Securities and a successor Depositary for the
Global Securities is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee and the Registrar in writing that it elects to cause the issuance
of Definitive Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive
Securities, will, or its authenticating agent will, authenticate and deliver
Definitive 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 SECURITY. At
such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or cancelled, such
Global Security shall be returned to or retained and cancelled by the
Registrar. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities,
redeemed, repurchased or cancelled, the principal amount of Securities
represented by such Global Security shall be reduced and an endorsement shall
be made on such Global Security, by the Registrar or the Securities
Custodian, at the direction of the Registrar, to reflect such reduction.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee or any authenticating
agent of the Trustee shall authenticate Definitive 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, assessments, or
similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments, or similar governmental charge payable
upon exchanges or transfers pursuant to Section 2.10, 3.7, 4.14(8), 9.5, or
11.1 (final paragraph)).
(iii) The Registrar shall not be required to register
the transfer of or exchange (a) any Definitive Security selected for
redemption in
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whole or in part pursuant to Article III, except the unredeemed portion
of any Definitive Security being redeemed in part, or (b) any Security
for a period beginning 15 Business Days before the mailing of a notice of
an offer to repurchase pursuant to Article XI or Section 4.14 hereof or
redemption of Securities pursuant to Article III hereof and ending at the
close of business on the day of such mailing.
SECTION 2.7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Registrar, to the Registrar to the effect that the
Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee or any authenticating agent of the Trustee shall
authenticate a replacement Security if the Registrar's requirements are met.
Such Holder must provide an indemnity bond or other indemnity, sufficient in
the judgment of both the Company and the Registrar, to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. In the case of any lost Security that will become due
and payable within 30 days, the Company can choose to pay such Security
rather than replacing such Security. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those cancelled by the Registrar, those delivered to
the Registrar for cancellation, those reductions in the interest in a Global
Security effected by the Registrar hereunder, those paid pursuant to Section
2.7 and those described in this Section 2.8 as not outstanding. A Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Registrar receives proof satisfactory to it that the replaced
Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds Cash or U.S.
Government Obligations sufficient to pay all of the principal and interest
and premium, if any, due on
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the Securities payable on that date and payment of the Securities called for
redemption is not otherwise prohibited, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver
or consent, Securities owned by the Company or Affiliates of the Company
shall be disregarded, except that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that a Trust Officer of the
Trustee actually knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but
may have variations that the Company reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall, upon receipt of a written order
of the Company in the form of an Officers' Certificate, authenticate
Definitive Securities in exchange for temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities authenticated and
delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Trustee and the Paying Agent shall forward to the
Registrar any Securities surrendered to them for registration of transfer,
exchange or payment. The Registrar, or at the direction of the Registrar,
the Trustee or the Paying Agent (other than the Company or an Affiliate of
the Company), and no one else, shall cancel and, return to the Company all
Securities surrendered for registration of transfer, exchange, payment or
cancellation. Subject to Section 2.7, the Company may not issue new
Securities to replace Securities that have been paid or delivered to the
Registrar for cancellation. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section 2.11,
except as expressly permitted in the form of Securities and as permitted by
this Indenture.
SECTION 2.12. DEFAULTED INTEREST.
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Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to
the extent lawful, any interest payable on the defaulted interest at the rate
and in the manner provided in Section 4.1 hereof and the Security (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Paying Agent an amount of Cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such Cash when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Paying Agent shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Paying
Agent of the notice of the proposed payment. The Paying Agent shall
promptly notify the Company and the Trustee of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the persons in whose
names the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause, such manner shall be deemed practicable by the
Trustee and the Paying Agent.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by the provisions of this
Indenture, shall be made in accordance with such provisions and this Article
III. The Company will not have the right to redeem any Securities prior to
January [ ], 20[ ]. On or after January [ ], 200[ ], the Company will have
the right to redeem all or any part of the Securities pursuant to Paragraph 5
thereof, in each case (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date, and subject to the provisions set forth in Section 3.5),
including accrued and unpaid interest to the Redemption Date.
SECTION 3.2. NOTICES TO TRUSTEE AND PAYING AGENT.
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of Securities to be redeemed and
whether it wants the Paying Agent to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities it has not previously delivered to the Trustee and
the Paying Agent
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for cancellation, it shall so notify the Trustee, in the form of an Officers'
Certificate, and the Paying Agent of the amount of the reduction and deliver
such Securities with such notice.
The Company shall give each notice to the Trustee and the Paying Agent
provided for in this Section 3.2 at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee and the Paying
Agent). Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed by
lot or by such other method as the Trustee shall determine to be appropriate and
fair.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
and the Paying Agent in writing of the Securities selected for redemption and,
in the case of any Security selected for partial redemption, the principal
amount thereof to be redeemed. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee, the Paying Agent and each Holder whose Securities are
to be redeemed. At the Company's request, the Paying Agent shall give the
notice of redemption in the Company's name and at the Company's expense. Each
notice for redemption shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
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(4) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice to
collect the Redemption Price;
(5) that, unless the Company defaults in its obligation to
deposit with the Paying Agent Cash, or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, Cash in an amount to fund the Redemption
Price, in accordance with Section 3.6 hereof or such redemption payment is
otherwise prohibited, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued and unpaid interest to the Redemption Date, upon
surrender to the Paying Agent of the Securities called for redemption and
to be redeemed;
(6) if any Security is being redeemed in part, the portion
of the principal amount, equal to $1,000 or any integral multiple thereof,
of such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the optional redemption provisions of Paragraph 5 of
the Securities.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest to the
Redemption Date. Upon surrender to the Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including interest, if any,
accrued and unpaid to the Redemption
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Date; PROVIDED that if the Redemption Date is after a regular Record Date and
on or prior to the Interest Payment Date to which such Record Date relates,
the accrued interest shall be payable to the Holder of the redeemed
Securities registered on the relevant Record Date; and PROVIDED, FURTHER,
that if a Redemption Date is a non-Business Day, payment shall be made on the
next succeeding Business Day and no interest shall accrue for the period from
such Redemption Date to such succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m., New York City time, on the Redemption Date,
the Company shall deposit with the Paying Agent (other than the Company or an
Affiliate of the Company) Cash or U.S. Government Obligations sufficient to pay
the Redemption Price of, including accrued and unpaid interest on, all
Securities to be redeemed on such Redemption Date (other than Securities or
portions thereof called for redemption on that date that have been delivered by
the Company to the Registrar for cancellation). The Paying Agent shall promptly
return to the Company any Cash or U.S. Government Obligations so deposited which
is not required for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Security.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest and premium, if
applicable, on the Securities on the dates and in the manner provided herein and
in the Securities. An installment of principal of or interest and premium, if
applicable, on the Securities shall be considered paid on the date it is due if
the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds for the benefit of the Holders, on or
before 10:00 a.m. New York City time on that date, Cash deposited and designated
for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee and the Paying Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee and the Paying Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee and the Paying Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby initially designates the principal
corporate trust office of the Paying Agent as such office.
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SECTION 4.3. LIMITATION ON RESTRICTED PAYMENTS.
On and after the Issue Date the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make any Restricted
Payment, if, after giving effect to such Restricted Payment on a PRO FORMA
basis, (1) a Default or an Event of Default shall have occurred and be
continuing, (2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio in Section 4.11, or (3)
the aggregate amount of all Restricted Payments made by the Company and its
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (a)(x) 100% of the
aggregate Consolidated EBITDA of the Company and its Consolidated Subsidiaries
for the period (taken as one accounting period), commencing on the first day of
the first full fiscal quarter commencing after the Issue Date, to and including
the last day of the fiscal quarter ended immediately prior to the date of each
such calculation (or, in the event Consolidated EBITDA for such period is a
deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed
Charges for the same period plus (b) the aggregate Net Cash Proceeds received by
the Company from the sale of its Qualified Capital Stock (other than (i) to a
Subsidiary of the Company and (ii) to the extent applied in connection with a
Qualified Exchange), after the Issue Date.
The foregoing clauses (2) and (3) of the immediately preceding
paragraph, however, will not prohibit (w) payments to the Parent Guarantor to
reimburse the Parent Guarantor for reasonable and necessary corporate and
administrative expenses, (x) Restricted Investments, PROVIDED, that, after
giving PRO FORMA effect to such Restricted Investment, the aggregate amount of
all such Restricted Investments made on or after the Issue Date that are
outstanding (after giving effect to any such Restricted Investments that are
returned to the Company or the Subsidiary Guarantor that made such prior
Restricted Investment, without restriction, in cash on or prior to the date of
any such calculation) at any time does not exceed $[ ].0 million, (y) a
Qualified Exchange and (z) the payment of any dividend on Qualified Capital
Stock within 60 days after the date of its declaration if such dividend could
have been made on the date of such declaration in compliance with the foregoing
provisions. The full amount of any Restricted Payment made pursuant to the
foregoing clauses (x) and (z) of the immediately preceding sentence, however,
will be deducted in the calculation of the aggregate amount of Restricted
Payments available to be made pursuant to clause (3) of the immediately
preceding paragraph.
SECTION 4.4. CORPORATE EXISTENCE.
Subject to Article V, the Company and the Guarantors shall do or cause
to be done all things necessary to preserve and keep in full force and effect
their respective corporate existence in accordance with the respective
organizational documents of each of them (as the same may be amended from time
to time) and the rights (charter and
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statutory) and corporate franchises of the Company and the Guarantors;
PROVIDED, HOWEVER, nothing in this Section will prohibit the Company or any
Guarantor from engaging in any transaction permitted under Section 12.4 or
Section 12.5 hereof and PROVIDED FURTHER that neither the Company nor any
Guarantor shall be required to preserve any right or franchise if (a) the
Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of such entity
and (b) the loss thereof is not disadvantageous in any material respect to
the Holders.
SECTION 4.5. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company and the
Guarantors shall, and shall cause each of their Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Company and the Guarantors or any of their Subsidiaries or any
of their respective properties and assets; and (ii) all lawful claims, whether
for labor, materials, supplies, services or anything else, which have become due
and payable and which by law have or may become a Lien upon the property and
assets of the Company and the Guarantors or any of their Subsidiaries; PROVIDED,
HOWEVER, that neither the Company nor any of the Guarantors shall be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
SECTION 4.6. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 4.6 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a), in the
judgment of the Board of Directors of the Company, desirable in the conduct of
the business of such entity and (b) not disadvantageous in any material respect
to the Holders.
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The Company and the Guarantors shall provide, or cause to be provided,
for themselves and each of their Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company is adequate and appropriate for the conduct of
the business of the Company, the Guarantors and such Subsidiaries.
SECTION 4.7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive, principal financial or principal
accounting officer of the Company, complying with Section 314(a)(4) of the TIA
and stating that a review of its activities and the activities of its
Subsidiaries, if any, 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 this
Indenture (without regard to notice requirements or grace periods) and further
stating, as to each such Officer signing such certificate, whether or not the
signer knows of any failure by the Company or any Guarantor to comply with any
conditions or covenants in this Indenture and, if such signer does know of such
a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon 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. The Trustee shall not be deemed to have knowledge of any
Default or any Event of Default unless one of its Trust Officers receives
written notice thereof from the Company or any of the Holders.
SECTION 4.8. REPORTS.
For so long as the Parent Guarantor or any successor thereto is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
and the Company is a wholly owned Subsidiary of the Parent Guarantor, the
Company shall deliver to the Trustee, and to each Holder, the Parent Guarantor's
annual and quarterly reports pursuant to Section 13 or 15(d) of the Exchange
Act, within 15 days after such reports have been filed with the Commission;
PROVIDED, HOWEVER; in the event either (i) the Parent Guarantor or a successor
as set forth above is no longer subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act or (ii) the Company is no longer a wholly owned
Subsidiary of the Parent Guarantor or a successor as set forth above, then
whether or not
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the Company is subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company shall deliver to the Trustee and, to each
Holder, within 15 days after it is or would have been (if it were subject to
such reporting obligations) required to file such with the Commission, annual
and quarterly financial statements substantially equivalent to financial
statements that would have been included in reports filed with the
Commission, if the Company were subject to the requirements of Section 13 or
15(d) of the Exchange Act, including, with respect to annual information
only, a report thereon by the Company's certified independent accountants as
such would be required in such reports to the Commission, and, in each case,
together with a management's discussion and analysis of financial condition
and results of operations which would be so required and, to the extent
permitted by the Exchange Act or the Commission (if it were subject to such
reporting obligations), file with the Commission the annual, quarterly and
other reports which it is or would have been required to file with the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.9. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any Subsidiary shall become an "investment
company" (as that term is defined in the Investment Company Act of 1940, as
amended), or otherwise become subject to regulation under the Investment Company
Act.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
After the Issue Date, the Company shall not, and shall not permit any
of its Subsidiaries to, enter into any contract, agreement, arrangement or
transaction with any Affiliate (an "Affiliate Transaction") or any series of
related Affiliate Transactions (other than Exempted Affiliate Transactions)
(i) unless it is determined that the terms of such Affiliate Transaction are
fair and reasonable to the Company, and no less favorable to the Company than
could have been obtained in an arm's length transaction with a non-Affiliate
and, (ii) if involving consideration to either party in excess of $5.0 million,
unless such Affiliate Transaction(s) is evidenced by (A) an Officers'
Certificate addressed and delivered to the Trustee certifying that such
Affiliate Transaction (or Transactions) has been approved by a majority of the
members of the Board of Directors of the Company that are disinterested in such
transaction or, (B) in the event there are no members of the Board of Directors
of the Company who are disinterested in such transaction, then so long as the
Company is a wholly owned Subsidiary of the Parent
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Guarantor, an Officers' Certificate addressed and delivered to the Trustee
certifying that such Affiliate Transaction (or Transactions) have been
approved by a majority of the members of the Board of Directors of the Parent
Guarantor that are disinterested in such transaction and (iii) if involving
consideration to either party in excess of $10.0 million, unless in addition
the Company, prior to the consummation thereof, obtains a written favorable
opinion as to the fairness of such transaction to the Company from a
financial point of view from an independent investment banking firm of
national reputation.
SECTION 4.11. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED CAPITAL STOCK.
Except as set forth below, neither the Company nor any of the
Company's Subsidiaries shall, directly or indirectly, issue, assume, guaranty,
incur, become directly or indirectly liable with respect to (including as a
result of an Acquisition), or otherwise become responsible for, contingently or
otherwise (individually and collectively, to "incur" or, as appropriate, an
"incurrence"), any Indebtedness or any Disqualified Capital Stock (including
Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding the
foregoing limitations, the Company may incur, and the Subsidiaries may
guarantee, Indebtedness and Disqualified Capital Stock in addition to Permitted
Indebtedness: if (i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a PRO FORMA
basis to, such incurrence of Indebtedness or Disqualified Capital Stock and (ii)
on the date of such incurrence (the "Incurrence Date"), the Leverage Ratio of
the Company for the Reference Period immediately preceding the Incurrence Date,
after giving effect on a PRO FORMA basis to such incurrence of such Indebtedness
or Disqualified Capital Stock and, to the extent set forth in the definition of
Leverage Ratio, the use of proceeds thereof, would be less than 7.0 to 1.
Indebtedness or Disqualified Capital Stock of any person which is
outstanding at the time such person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other person as a Subsidiary)
or is merged with or into or consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been Incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Subsidiary of the Company, as applicable.
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SECTION 4.12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall permit any of
their Subsidiaries to, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company to pay dividends or
make other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or any Subsidiary
of the Company, except (a) restrictions imposed by the Securities or this
Indenture, (b) restrictions imposed by applicable law, (c) existing restrictions
under Indebtedness outstanding on the Issue Date, (d) restrictions under any
Acquired Indebtedness not incurred in violation of this Indenture or any
agreement relating to any property, asset, or business acquired by the Company
or any of its Subsidiaries, which restrictions in each case existed at the time
of acquisition, were not put in place in connection with or in anticipation of
such acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (f) under the definition of Permitted
Indebtedness, provided such restriction or requirement is no more restrictive
than that imposed by the Credit Facility as of the Issue Date, (f) restrictions
with respect solely to a Subsidiary of the Company imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such Subsidiary, provided
such restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold, and (g) in connection with and pursuant to
permitted Refinancings, replacements of restrictions imposed pursuant to clauses
(a), (c) or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, or other standard non-assignment
clauses in contracts entered into in the ordinary course of business, (b)
Capital Leases or agreements governing purchase money Indebtedness which contain
restrictions of the type referred to above with respect to the property covered
thereby, nor (c) Liens permitted under the terms hereof on assets securing
Senior Debt incurred pursuant to the Leverage Ratio in Section 4.11 or permitted
pursuant to the definition of Permitted Indebtedness, shall in and of themselves
be considered a restriction on the ability of the applicable Subsidiary to
transfer such agreement or assets, as the case may be.
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SECTION 4.13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, directly or indirectly, incur, or, other than with
respect to the 10 1/8% Notes and the 9 3/4% Notes, suffer to exist (a) any
Indebtedness that is subordinate in right of payment to any other Indebtedness
of the Company or a Guarantor unless, by its terms, such Indebtedness (i) has a
maturity date subsequent to the Stated Maturity of the Securities and an Average
Life longer than that of the Securities and (ii) is subordinate in right of
payment to, or ranks PARI PASSU with, the Securities or the Guarantees, as
applicable, or (b) other than Permitted Liens, any Lien upon any of properties
or assets, whether now owned or hereafter acquired, or upon any income or
profits therefrom securing Indebtedness other than (1) Liens securing Senior
Debt incurred pursuant to the Leverage Ratio in accordance with Section 4.11 and
(2) Liens securing Senior Debt incurred as permitted pursuant to the definition
of Permitted Indebtedness.
SECTION 4.14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, in one or a series of related transactions, sell,
transfer, or otherwise dispose of, any of its property, business or assets,
including by merger or consolidation (in the case of a Guarantor or a Subsidiary
of the Company), and including any sale or other transfer or issuance of any
Equity Interests of any direct or indirect Subsidiary of the Company, whether by
the Company or a direct or indirect Subsidiary thereof (an "Asset Sale"), unless
(1) within 450 days after the date of such Asset Sale, the Net Cash Proceeds
therefrom (the "Asset Sale Offer Amount") are (a) applied to the optional
redemption of the Securities in accordance with the terms hereof and the
Securities or to the repurchase of the Securities pursuant to an irrevocable,
unconditional cash offer (the "Asset Sale Offer") to repurchase Securities at a
purchase price (the "Asset Sale Offer Price") of 100% of principal amount, plus
accrued interest to the date of payment, (b) invested in assets and property
(other than notes, bonds, obligations and securities) which in the good faith
reasonable judgment of the Board of the Company will immediately constitute or
be a part of a Related Business of the Company or a Subsidiary (if it continues
to be a Subsidiary) immediately following such transaction or (c) used to
permanently retire or reduce Senior Debt or Indebtedness permitted pursuant to
paragraphs (d), (e) or (f) under the definition of Permitted Indebtedness
(including that in the case of a revolver or similar arrangement that makes
credit available, such commitment is so permanently reduced by such amount), (2)
with respect to any Asset Sale or related series of Asset Sales involving
securities, property or assets with an aggregate fair market value in excess of
$2.5 million, at least 75% of the consideration for such Asset Sale or series of
related Asset Sales (excluding the amount of (A) any Indebtedness (other than
the Securities) that is required to be repaid or assumed (and is either repaid
or assumed by the transferee of the related assets) by virtue of such Asset Sale
and which is secured by a
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Lien on the property or asset sold and (B) property received by the Company
or any such Subsidiary from the transferee that within 90 days of such Asset
Sale is converted into cash or Cash Equivalents) consists of cash or Cash
Equivalents (other than in the case of an Asset Swap or where the Company is
exchanging all or substantially all the assets of one or more Related
Businesses operated by the Company or its Subsidiaries (including by way of
the transfer of capital stock) for all or substantially all the assets
(including by way of the transfer of capital stock) constituting one or more
Related Businesses operated by another person, in which event the foregoing
requirement with respect to the receipt of cash or Cash Equivalents shall not
apply), (3) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a PRO FORMA
basis, to, such Asset Sale, and (4) the Board of the Company determines in
good faith that the Company or such Subsidiary, as applicable, receives fair
market value for such Asset Sale.
Notwithstanding the foregoing provisions of the first paragraph of
this covenant, with respect to an Asset Sale Offer, the Company shall not
commence an Asset Sale Offer for the Securities until such time as an Asset Sale
Offer for the 10 1/8% Notes and the 9 3/4% Notes, in each case, if required, has
been completed. To the extent that any Excess Proceeds remain after expiration
of an Asset Sale Offer Period for the 10 1/8% Notes and the 9 3/4% Notes, the
Company shall use the remaining Net Cash Proceeds, to the extent "Excess
Proceeds" (as defined herein) exceeds $5,000,000, to commence an Asset Sale
Offer for the Securities; PROVIDED, that with respect to the 10 1/8% Notes or
the 9 3/4% Notes, this paragraph shall be of no further force and effect
(i) with respect to the 10 1/8 Notes, upon the earlier of (w) the maturity
of the 10 1/8% Notes, (x) the date upon which defeasance of the 10 1/8% Notes
becomes effective, (y) the date on which there are no longer any 10 1/8% Notes
outstanding in accordance with the terms of the indenture governing the 10 1/8%
Notes and (z) the date on which the Limitation on Sale of Assets and Subsidiary
Stock covenant no longer applies in accordance with the terms of the indenture
governing the 10 1/8% Notes and (ii) with respect to the 9 3/4% Notes, upon
the earlier of (w) the maturity of the 9 3/4% Notes, (x) the date upon which
defeasance of the 9 3/4% Notes becomes effective, (y) the date on which there
are no longer any 9 3/4% Notes outstanding in accordance with the terms of
the indenture governing the 9 3/4% Notes and (z) the date on whcih the
Limitation of Sale of Assets and Subsidiary Stock covenant no longer applies
in accordance with the terms of the indenture governing the 9 3/4% Notes.
In addition, notwithstanding the foregoing provisions of the first
paragraph of this covenant:
(i) the Company and its Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to an in
accordance with the provisions of Section 5.1;
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(ii) the Company and its Subsidiaries may sell or
dispose of inventory or damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no longer necessary
for the proper conduct of the business of the Company or such Subsidiary,
as applicable; and
(iii) any of the Company's Subsidiaries may convey,
sell, transfer, assign or otherwise dispose of assets to, or merge with or
into, the Company or any of its Wholly owned Subsidiary Guarantors.
The Company shall accumulate all Net Cash Proceeds (including any cash
as and when received from the proceeds of any property which itself was acquired
in consideration of an Asset Sale), and the aggregate amount of such accumulated
Net Cash Proceeds not used for the purposes permitted and within the time
provided by this Section 4.14 is referred to as the "Excess Proceeds."
For purposes of this Section 4.14, "Excess Proceeds Date" means each
date on which the Excess Proceeds exceeds $5,000,000. Not later than ten
Business Days after each Excess Proceeds Date, the Company will commence an
Asset Sale Offer, to the Holders to purchase, on a PRO RATA basis, for Cash,
Securities having a principal amount equal to the Excess Proceeds Amount at the
Asset Sale Offer Price, equal to 100% of principal amount, plus accrued but
unpaid interest to, and including, the date (the "Purchase Date"), the
Securities tendered are purchased and paid for in accordance with this Section
4.14. The Asset Sale Offer shall remain open for twenty Business Days, except
to the extent that a longer period is required by applicable law, but in any
case not more than sixty Business Days after such Excess Proceeds Date. Notice
of an Asset Sale Offer will be sent on or before the commencement of any Asset
Sale Offer, by first-class mail, by the Company to each Holder at its registered
address, with a copy to the Trustee. The notice to the Holders will contain all
information, instructions and materials required by applicable law or otherwise
material to such Holders' decision to tender Securities pursuant to the Asset
Sale Offer. The notice, which (to the extent consistent with this Indenture)
shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant
to such notice and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer
Price (including the amount of accrued and unpaid interest), the Final
Put Date (as defined below), and the Purchase Date, which Purchase
Date shall be on or prior to 60 Business Days following the Excess
Proceeds Date;
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(3) that any Security or portion thereof not tendered
or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing
Cash with the Paying Agent in accordance with the immediately
following paragraph of this Section 4.14 or such payment is otherwise
prevented, any Security, or portion thereof, accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after
the Purchase Date;
(5) that Holders electing to have a Security, or
portion thereof, purchased pursuant to an Asset Sale Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section 4.14,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Purchase Date and (b) the third
Business Day following the expiration of the Asset Sale Offer (such
earlier date being the "Final Put Date");
(6) that Holders will be entitled to withdraw their
elections, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 4.14, notwithstanding any other provision of
this Indenture, be the Company or any Affiliate of the Company)
receives, up to the close of business on the Final Put Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Securities the Holder is withdrawing and a
statement that such Holder is withdrawing his election to have such
principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess
of the principal amount of Securities to be acquired pursuant to the
Asset Sale Offer are tendered and not withdrawn, the Trustee shall
select the Securities to be purchased on a PRO RATA basis (with such
adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or integral multiples of $1,000
shall be acquired);
(8) that Holders whose Securities were purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
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(9) a brief description of the circumstances and
relevant facts regarding such Asset Sales.
On or before a Purchase Date, the Company shall, to the extent lawful,
(i) accept for payment Securities or portions thereof properly tendered pursuant
to the Asset Sale Offer on or before the Final Put Date (on a PRO RATA basis if
required pursuant to paragraph (7) of this Section 4.14), (ii) deposit with the
Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all
Securities or portions thereof so tendered and accepted and (iii) deliver to the
Paying Agent Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof being purchased by the Company. The
Paying Agent shall on each Purchase Date mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Asset Sale Offer Price
for such Securities, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered; PROVIDED that if the Purchase
Date is after a regular Record Date and on or prior to the Interest Payment Date
to which such Record Date relates, the accrued interest shall be payable to the
Holder of the purchased Securities registered on the relevant Record Date. Any
Security not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof.
All Net Cash Proceeds from an Event of Loss shall be applied to the
restoration, repair or replacement of the asset so affected or invested, used
for prepayment of Senior Debt, or used to repurchase Securities, all within the
period and as otherwise provided above in clauses 1(a), 1(b) or 1(c) of the
first paragraph of this covenant.
In addition to the foregoing, the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly make any Asset Sale of
any of the Equity Interests of any Subsidiary except pursuant to an Asset Sale
of all the Equity Interests of such Subsidiary.
Any such Asset Sale Offer shall comply with all applicable laws, rules
and regulations, including Regulation 14E of the Exchange Act and the rules and
regulations thereunder and all other applicable Federal and State securities
laws, if applicable, and any provisions of this Indenture that conflict with
such laws shall be deemed to be superseded by the provisions of such laws.
If the amount required to be paid by the Company in order to acquire
all Securities duly tendered by Holders (and not withdrawn) pursuant to an Asset
Sale Offer (the "Acceptance Amount"), made pursuant to the second paragraph of
this Section 4.14 is less than the Asset Sale Offer Amount, the excess of the
Asset Sale Offer Amount over the Acceptance Amount may be used by the Company
for general corporate purposes without restriction, unless otherwise restricted
by the other provisions of this Indenture.
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Upon consummation of any Asset Sale Offer made in accordance with the terms
of this Indenture, the Accumulated Amount will be reduced to zero
irrespective of the amount of Securities tendered pursuant to the Asset Sale
Offer.
Notwithstanding the foregoing provisions of clause (1)(b) in the first
paragraph of this Section 4.14, the Company may invest in a controlling interest
in the Capital Stock of an entity engaged in a Related Business; PROVIDED, that
concurrently with such an Investment, such entity becomes a Subsidiary
Guarantor.
SECTION 4.15. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall, and shall not
permit any of their Subsidiaries to, in one or a series of related transactions,
directly or indirectly, engage in any Asset Swaps, unless: (i) at the time of
entering into the agreement to swap assets and immediately after giving effect
to the proposed Asset Swap, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; (ii) the Company
would, after giving PRO FORMA effect to the proposed Asset Swap, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2.5 million by the Board of Directors of the
Company, as evidenced by a Board Resolution) are substantially the same at the
time of entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company or its Subsidiaries,
calculated from the time the agreement to swap assets was entered into.
SECTION 4.16. LIMITATION ON LINES OF BUSINESS.
The Company and its Subsidiaries shall not, and shall not permit any
of their Subsidiaries to, directly or indirectly, engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Board of Directors of the Company is a
Related Business.
SECTION 4.17. RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK.
Neither the Company nor the Guarantors shall sell, or permit any of
their Subsidiaries to issue or sell, any Equity Interests of any Subsidiary of
the Company to any person other than the Company or a Wholly owned Subsidiary of
the Company,
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except for Equity Interests with no preferences or special rights or
privileges and with no redemption or prepayment provisions.
SECTION 4.18. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of,
premium of, or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Guarantors hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or any
Paying Agent, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) The Company will not, directly or indirectly, consolidate
with or merge with or into another person or sell, lease, convey or transfer all
or substantially all of its assets (computed on a consolidated basis), whether
in a single transaction or a series of related transactions, to another person
or group of affiliated persons or adopt a Plan of Liquidation, unless (i) either
(a) the Company is the continuing entity or (b) the resulting, surviving or
transferee entity or in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation is a corporation
organized under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities and this Indenture;
(ii) no Default or Event of Default shall exist or shall occur immediately after
giving effect on a PRO FORMA basis to such transaction; and (iii) immediately
after giving effect to such transaction on a PRO FORMA basis, the consolidated
resulting, surviving or transferee entity or, in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio set forth in Section
4.11.
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(b) For purposes of clause (a), the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a Plan of
Liquidation in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made or, in the case of a Plan of Liquidation, the entity
which receives the greatest value from such Plan of Liquidation shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named herein as the Company, and when a successor
corporation duly assumes all of the obligations of the Company pursuant
hereto and pursuant to the Securities, the Company shall be released from
such obligations under the Securities and this Indenture except with respect
to any obligations that arise from or are related to, such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be caused voluntarily or involuntarily or effected, without
limitation, by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(1) failure by the Company to pay any installment of interest
upon the Securities as and when the same becomes due and payable, and the
continuance of any such failure for a period of 30 days;
(2) failure by the Company to pay all or any part of the
principal of or premium, if any, on the Securities when and as the same
becomes due and payable at maturity, upon redemption, by acceleration, or
otherwise, including, without limitation, default in the payment of the
Change of Control Purchase
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Price in accordance with Article XI or the Asset Sale Offer Price in
accordance with Section 4.14, or otherwise;
(3) failure by the Company or any Guarantor to observe or
perform any other covenant or agreement contained in the Securities or this
Indenture and, subject to certain exceptions, the continuance of such
failure for a period of 60 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities outstanding,
specifying such default or breach, requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(4) decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company or any of its
Significant Subsidiaries under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a period
of 60 consecutive days; or a decree, judgment or order of a court of
competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency for the Company, any of its
Significant Subsidiaries, or any substantial part of the property of any
such Person, or for the winding up or liquidation of the affairs of any
such Person, shall have been entered, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of 60
days;
(5) default in any issue of Indebtedness of the Company or any
of its Subsidiaries with an aggregate principal amount in excess of $5.0
million, in either case (a) resulting from the failure to pay principal at
final maturity, or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity;
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorganization under any bankruptcy
or similar law or similar statute, or shall consent to the filing of any
such petition, or shall consent to the appointment of a Custodian,
receiver, liquidator, trustee, or assignee in bankruptcy or insolvency of
it or any substantial part of its assets or property, or shall make a
general assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due, fail generally
to pay its debts as they become due, or take any corporate action in
furtherance of any of the foregoing; or
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(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million at any one time shall be rendered
against the Company or any of its Subsidiaries and not stayed, bonded or
discharged for a period (during which execution shall not be effectively
stayed) of 60 days (or, in the case of any such final judgment which
provides for payment over time, which shall so remain unstayed, unbonded or
undischarged beyond any applicable payment date provided therein).
SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing (other than an
Event of Default specified in Section 6.1(4) or (6) relating to the Company
or its Significant Subsidiaries) then in every such case, unless the
principal of all of the Securities shall have already become due and payable,
either the Trustee or the Holders of 25% in aggregate principal amount of the
Securities outstanding, by a notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), may declare all of
the principal and accrued interest thereon to be due and payable immediately;
provided, however, that if any Senior Debt is outstanding pursuant to the New
Credit Facility upon a declaration of such acceleration, such principal and
interest shall be due and payable upon the earlier of (x) the third Business
Day after the sending to the Company and the Representative of such written
notice, unless such Event of Default is cured or waived prior to such date
and (y) the date of acceleration of any Senior Debt under the New Credit
Facility. In the event a declaration of acceleration resulting from an Event
of Default described in Section 6.1(5) above has occurred and is continuing,
such declaration of acceleration shall be automatically annulled if such
default is cured or waived or the holders of the Indebtedness which is the
subject of such default have rescinded their declaration of acceleration in
respect of such Indebtedness within five days thereof and the Trustee has
received written notice or such cure, wavier or rescission and no other Event
of Default described in Section 6.1(5) above has occurred that has not been
cured or waived within five days of the declaration of such acceleration in
respect of such Indebtedness. If an Event of Default specified in Section
6.1(4) or (6) above, relating to the Company or any Significant Subsidiary
occurs, all principal and accrued interest thereon will be immediately due
and payable on all outstanding Securities without any declaration or other
act on the part of Trustee or the Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may rescind, on
behalf of all Holders, any such declaration of acceleration if:
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(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) all overdue interest on all
Securities,
(B) the principal of (and premium, if
any, applicable to) any Securities which would become due
other than by reason of such declaration of acceleration,
and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the
rate borne by the Securities,
(D) all sums paid or advanced by the
Trustee hereunder and the compensation, expenses,
disbursements and advances of the Trustee and its agents and
counsel, and any other amounts due the Trustee under Section
7.7, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 6.12, including, if applicable, any Event of Default
relating to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with
notice or lapse of time or both would be an Event of Default with respect to
(i) any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default
or other event and (ii) any provision requiring supermajority approval to
amend, unless such default has been waived by such a supermajority. No such
waiver shall cure or waive any subsequent default or impair any right
consequent thereon.
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SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Company shall, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal, premium (if any) and
interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including compensation to, and expenses,
disbursements and advances of the Trustee and its agents and counsel and all
other amounts due the Trustee under Section 7.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in
favor of the Holders, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
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 and
premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions
under the TIA, including
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(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee and its agent and
counsel and all other amounts due the Trustee under Section 7.7) and
of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, 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 and 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.
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 in
favor of the Holders, and any recovery of judgment shall, after provision for
the payment of compensation to, and expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the Trustee
under Section 7.7, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 6.6. PRIORITIES.
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Any money collected by the Trustee pursuant to this Article VI
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, premium (if any) or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any) 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, premium (if any) and
interest, respectively; and
THIRD: To the Company or such other Person as may be lawfully
entitled thereto, the remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date
and payment date for any payment to the Holders under this Section 6.6.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Security shall have any right to order or direct
the Trustee to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in aggregate principal
amount of then outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(D) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
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(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 aggregate principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and interest on,
such Security on the Maturity Dates of such payments as expressed in such
Security (in the case of redemption, the Redemption Price on the applicable
Redemption Date, in the case of the Change of Control Payment, on the
applicable Change of Control Payment Date, and in the case of the Asset Sale
Offer Price, on the Purchase Date) and to institute suit for the enforcement
of any such payment after such respective dates, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default
shall impair the exercise of any such right or remedy or constitute a waiver
of any such Event of Default. Every right and remedy given by this Article
VI or by law to the Trustee or to the Holders may
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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 6.11. CONTROL BY HOLDERS.
The Holder or Holders of a majority in aggregate principal amount
of then outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee,
PROVIDED, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or involve the Trustee in personal liability,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.12. WAIVER OF PAST DEFAULT.
Subject to Section 6.8, and prior to the declaration of
acceleration of the maturity of the Securities, the Holder or Holders of not
less than a majority in aggregate principal amount of the outstanding
Securities may, on behalf of all Holders, waive any past default hereunder
and its consequences, except a default
(A) in the payment of the principal of, premium, if any, or
interest on, any Security as specified in clauses (1) and (2) of Section
6.1 and not yet cured,
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Security affected, or
(C) in respect of any provision hereof which, under Article
IX, cannot be modified, amended or waived without the consent of the
Holders of a supermajority of the aggregate principal amount of the
Securities at the time outstanding; PROVIDED, that any such waiver may be
effected with the consent of the Holders of a supermajority of the
aggregate principal amount of the Securities then outstanding.
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Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
SECTION 6.13. 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 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 to
be taken by it as Trustee, any court may in its discretion require 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 and expenses, 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 6.13
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 aggregate principal amount of the
outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any) or interest
on, any Security on or after the respective Maturity Date expressed in such
Security (including, in the case of redemption, on or after the Redemption
Date).
SECTION 6.14. 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 case, subject to any
determination in such proceeding, the Company, the Guarantors, 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.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed,
subject to the terms hereof.
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SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee, and
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1,
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts,
and
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or
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powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 7.1.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to Sections 13.4
and 13.5. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Indenture, nor for any action
permitted to be taken or omitted hereunder by any Agent.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit.
(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, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have
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offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company or any
Guarantor shall be sufficient if signed by an Officer of the Company or such
Guarantor, as applicable.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's or any Guarantor's covenants in Article IV
hereof or as to the performance by any Agent of its duties hereunder. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except any Default or Event of Default of which the Trustee
shall have received written notification or with respect to which a Trust
Officer shall have actual knowledge.
(i) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate.
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, any
Guarantor, any of their Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with 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 and 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 the Trustee's
certificate of authentication (if executed by the Trustee), or the use or
application of any funds received by a Paying Agent other than the Trustee.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal (or
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premium, if any) of, or interest on, any Security (including the payment of
the Change of Control Purchase Price on the Change of Control Payment Date,
the payment of the Redemption Price on the Redemption Date and the payment of
the Offer Price on the Purchase Date), the Trustee may withhold the notice if
and so long as a Trust Officer in good faith determines that withholding the
notice is in the interest of the Securityholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15, 1998
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock
exchange, if any, on which the Securities are listed.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company and the Guarantors jointly and severally agree to pay
to the Trustee from time to time such compensation as shall be agreed upon in
writing between the Company and the Trustee 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 and the Guarantors shall reimburse the Trustee
upon request for all reasonable disbursements, expenses and advances incurred
or made by it in accordance with this Indenture. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company and the Guarantors jointly and severally agree to
indemnify the Trustee (in its capacity as Trustee) and each of its officers
and each of them, directors, attorneys-in-fact and agents for, and hold it
harmless against, any and all claim, demand, damage, expense (including but
not limited to reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel), loss or liability incurred by it without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust and its rights
or duties hereunder including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company and the Guarantors shall defend the
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claim and the Trustee shall provide reasonable cooperation at the Company's
and the Guarantors' expense in the defense. The Trustee may have separate
counsel and the Company and the Guarantors shall pay the reasonable fees and
expenses of such counsel. The Company and the Guarantors need not pay for
any settlement made without their written consent. The Company and the
Guarantors need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in
this Section 7.7, the Trustee shall have a lien prior to the Securities on
all assets held or collected by the Trustee, in its capacity as Trustee,
except assets held in trust to pay principal and premium, if any, of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(4) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's and the Guarantors' obligations under this Section 7.7
and any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company's and the Guarantors' obligations
pursuant to Article VIII of this Indenture and any rejection or termination of
this Indenture under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in aggregate principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee in writing and may appoint a successor trustee with the Company's
consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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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 Holder or Holders of a majority in aggregate principal amount of the
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that and provided that all sums owing to the retiring Trustee provided for in
Section 7.7 have been paid, the retiring Trustee shall transfer all property
held by it as trustee to the successor Trustee, subject to the lien provided
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 under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holder or Holders of at least 10% in aggregate principal amount of the
outstanding Securities may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company and the Guarantors' obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
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 resulting, surviving or transferee corporation
without any further act shall, if such resulting, surviving or transferee
corporation is otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital
and surplus of at least
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$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
This Indenture shall cease to be of further effect (except that the
Company's and the Guarantors' obligations under Section 7.7 and the Trustee's
and the Paying Agent's obligations under Sections 8.6 and 8.7 shall survive)
when all outstanding Securities theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Securities that have
been replaced or paid) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder. In addition, the Company
may, at its option and at any time, elect to have Section 8.2 or may, at any
time, elect to have Section 8.3 applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Company and the Guarantors shall be
deemed to have been discharged from their respective obligations with respect
to all outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which
shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.5 and the other Sections of this Indenture referred to in (a) and
(b) below, and to have satisfied all its other obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in Section 8.4,
and as more fully
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set forth in such section, payments in respect of the principal of, premium,
if any, and interest on such Securities when such payments are due, (b) the
Company's obligations with respect to such Securities under Sections 2.4,
2.6, 2.7, 2.10 and 4.2, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's and the Guarantors' obligation in
connection therewith and (d) this Article VIII. Upon Legal Defeasance as
provided herein, the Guaranty of each Guarantor shall be fully released and
discharged and the Trustee shall promptly execute and deliver to the Company
any documents reasonably requested by the Company to evidence or effect the
foregoing. Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2 notwithstanding the prior exercise
of its option under Section 8.3 with respect to the Securities.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company and the Guarantors shall be
released from their respective obligations under the covenants contained in
Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16 and 4.17, Article V, Article XI and Article XII 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 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. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Securities,
the Company need not 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 Section 6.1(3) shall not apply
to any such covenant), 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 of the option applicable to this
Section 8.3, Sections 6.1(3) through 6.1(7) shall not constitute Events of
Default. Upon Covenant Defeasance, as provided herein, the Guaranty of each
Guarantor shall be fully released and discharged and the Trustee shall
promptly execute and deliver to the Company any documents reasonably
requested by the Company to evidence or effect the foregoing.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
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(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfactory to the Trustee
satisfying the requirements of Section 7.10 who shall agree to comply with
the provisions of this Article VIII applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (a) Cash in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, Cash in an amount, or (c) a combination thereof, in
such amounts, as in each case will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
and which shall be applied by the Paying Agent (or other qualifying trustee)
to pay and discharge the principal of, premium, if any, and interest on the
outstanding Securities on the Stated Maturity or on the applicable Redemption
Date, as the case may be, of such principal or installment of principal,
premium, if any, or interest; PROVIDED that the Paying Agent shall have been
irrevocably instructed to apply such Cash and the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities. The
Paying Agent shall promptly advise the Trustee in writing of any Cash or
Securities deposited pursuant to this Section 8.4;
(b) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the Company
have received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) 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 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;
(c) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect 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 in the
same amount, 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 with respect to the
Securities shall have occurred and be continuing on the date of such deposit
or, in so far as Section 6.1(4) or Section 6.1(6) is concerned, at any time
in the period ending on the 91st day after the date of such deposit (it being
understood that this condition is a condition
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subsequent which shall not be deemed satisfied until the expiration of such
period, but in the case of Covenant Defeasance, the covenants which are
defeased under Section 8.3 will cease to be in effect unless an Event of
Default under Section 6.1(4) or Section 6.1(6) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company,
the Guarantors, or any of their Subsidiaries is a party or by which any of
them is bound;
(f) In the case of an election under either Section 8.2 or
8.3, the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.2 or 8.3 was not made by the Company with the intent of preferring
the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others;
(g) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the conditions precedent provided for have
been complied with; and
(h) The Company shall have delivered to the Trustee an
Opinion of Counsel stating that the conditions set out in Section 8.4(a)(with
respect to the validity and perfection of the security interest), (b), (c)
and (e) above.
(i) The Company or the Parent Guarantor shall have delivered
to the Trustee any required consent of the lenders under the Credit Facility
to such defeasance or covenant defeasance, as the case may be.
SECTION 8.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all Cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Paying Agent (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Paying Agent") pursuant to Section 8.4 in respect of the outstanding
Securities shall be held in trust and applied by the Paying Agent, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any other Paying Agent as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
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The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.4 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 Outstanding Securities.
SECTION 8.6. REPAYMENT TO THE COMPANY.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the request of the Company any Cash or U.S. Government Obligations
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.
Any Cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall
be paid to the Company on its request; and the Holder of such Security shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to (i) be published once, in the NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), or (ii) mail to each such Holder, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations 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 until such time as the Trustee or Paying Agent
is permitted to apply such money in accordance with Section 8.2 and 8.3, as
the case may be; PROVIDED, HOWEVER, that, if the Company makes
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any payment of principal of, premium, if any, 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 Cash and U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company or any Guarantor,
when authorized by Board Resolutions, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or make
any other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause shall not adversely
affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Guarantors
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or the Guarantors;
(3) to provide for additional collateral for or additional
Guarantors of the Securities;
(4) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the obligations of the
Company, herein and in the Securities in accordance with Article V;
(5) to comply with the TIA;
(6) to evidence the succession of another corporation to any
Guarantor and assumption by any such successor of the Guaranty of such
Guarantor (as set forth in Section 12.4) in accordance with Article XIII;
(7) to evidence the release of any Guarantor in accordance
with Article XII;
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(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS.
Subject to Section 6.8, with the consent of the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities,
by written act of said Holders delivered to the Company and the Trustee, the
Company or any Guarantor, when authorized by Board Resolutions, and the
Trustee may amend or supplement this Indenture or the Securities or enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or the Securities or of modifying in any manner
the rights of the Holders under this Indenture or the Securities. Subject to
Section 6.8, the Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may waive compliance by the
Company or any Guarantor with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the Holders of
not less than 75% of the aggregate principal amounts of Securities at the
time outstanding alter the terms or provisions of Section 11.1 or Section
11.2 in a manner adverse to the Holders; and no such amendment, supplemental
indenture or waiver shall, without the consent of the Holder of each
outstanding Security affected thereby:
(1) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date), or reduce the Change of Control Purchase Price or the Asset
Sale Offer Price or alter the provisions (including the defined terms used
herein) regarding the right of the Company to redeem the Securities in a
manner adverse the Holders; or
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such amendment,
supplemental indenture or wavier provided for in this Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provision of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby.
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Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the
Representative on behalf of the Required Lenders amend, waive or otherwise
modify the terms or provisions of Article X in a manner adverse to the
Lenders (as defined in the New Credit Facility).
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all
Holders, consideration for such Holder's consent to such amendment,
supplement or waiver.
SECTION 9.3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder 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 his Security
by written notice to the Company or the Person designated by the Company as
the Person to whom consents should be sent if such revocation is received by
the Company or such Person before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed
by the Company notwithstanding the provisions of the TIA. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (3) of Section 9.2, in which case, the amendment,
supplement or waiver shall bind only 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;
PROVIDED, that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal and premium of and interest on a
Security, on or after the respective dates set for such amounts to become due
and payable expressed in such Security, or to bring suit for the enforcement
of any such payment on or after such respective dates.
SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Registrar or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Any failure to make the appropriate notation or to issue a
new Security shall not affect the validity of such amendment, supplement or
waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of any amendment, supplement or waiver authorized pursuant to this Article IX
is authorized or permitted by this Indenture.
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ARTICLE X
SUBORDINATION
SECTION 10.1. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company and the Guarantors and each Holder, by its acceptance
of Securities, agree that (a) the payment of the principal of and interest on
the Securities and (b) any other payment in respect of the Securities,
including on account of the acquisition or redemption of the Securities by
the Company or the Guarantors (including, without limitation, pursuant to
Article III or Section 4.1, 4.14, 11.1, 11.2 or Article XII is expressly made
and shall be subordinated in right of payment, to the extent and in the
manner provided in this Article X, to the prior payment in full in Cash of
all existing and future Senior Debt of the Company and the Guarantors and
that these subordination provisions are for the benefit of the holders of
Senior Debt.
This Article X shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the
holders of Senior Debt, and such holders are made obligees hereunder and any
one or more of them may enforce such provisions.
SECTION 10.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment (including any payment which may be payable to
any Holder by reason of the subordination of any other indebtedness or other
obligations to, or guarantee of, the Securities) or distribution (by set-off
or otherwise) shall be made by or on behalf of the Company or a Guarantor, as
applicable, on account of the Securities, including the principal of,
premium, if any, or interest on the Securities (including any repurchases of
Securities) or any other amounts with respect thereto or on account of the
redemption provisions of the Securities for cash or property (other than
Junior Securities), (i) upon the maturity of any Senior Debt of the Company
or such Guarantor by lapse of time, acceleration (unless waived) or
otherwise, unless and until all principal of, premium, if any, and the
interest on, and all other amounts with respect to, such Senior Debt shall
first be paid in full in Cash or otherwise to the extent each of the holders
of Senior Debt accept satisfaction of amounts due to such holder by
settlement in other than Cash, or (ii) in the event of default in payment of
any principal of, or premium, if any, or interest on, or any other amounts
with respect to, Senior Debt of the Company or such Guarantor when the same
becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise (each of the foregoing, a "Payment
Default") unless and until such Payment Default has been cured or waived or
otherwise has ceased to exist.
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(b) Upon (i) the happening of a default (other than a Payment
Default) that permits the holders of Senior Debt (or a percentage thereof) to
declare such Senior Debt to be due and payable and (ii) written notice of
such default given to the Company and the Trustee by the Representative under
the Credit Facility or by the holders of an aggregate of at least $25.0
million principal amount outstanding of any other Senior Debt or their
representative at such holders' direction (a "Payment Notice"), then, unless
and until such default has been cured or waived or otherwise has ceased to
exist, no payment (including any payment which may be payable to any Holder
by reason of the subordination of any other indebtedness or other obligations
to, or guarantee of, the Securities) or distribution (by set-off or
otherwise) may be made by or on behalf of the Company or any Guarantor which
is an obligor under such Senior Debt on account of the principal of, premium,
if any, or interest on the Securities (including any repurchases of any of
the Securities), or any other amount with respect thereto, or on account of
the redemption provision of the Securities, in any such case, other than
payments made with Junior Securities. Notwithstanding the foregoing, unless
the Senior Debt in respect of which such default exists has been declared due
and payable in its entirety within 179 days after the Payment Notice is
delivered as set forth above (such period being hereinafter referred to as
the "Payment Blockage Period") (and such declaration has not been rescinded
or waived), at the end of the Payment Blockage Period (and assuming that no
Payment Default Exists), unless Section 10.3 shall be applicable the Company
and the Guarantors shall not be prohibited by the subordination provisions
from paying all sums then due and not paid to the Holders of the Securities
during the Payment Blockage Period due to the foregoing prohibitions and to
resume all other payments as and when due on the Securities. Any number of
Payment Notices may be given; PROVIDED, HOWEVER; that (i) not more than one
Payment Notice shall be given within a period of any 360 consecutive days,
and (ii) no default that existed upon the date of delivery of such Payment
Notice (whether or not such event of default is on the same issue of Senior
Debt) shall be made the basis for the commencement of any other Payment
Blockage Period.
(c) In furtherance of the provisions of Section 10.1, in the
event that, notwithstanding the foregoing provisions of this Section 10.2,
any payment or distribution of assets in respect of the Securities, including
principal of or interest on the Securities or to defease or acquire any of
the Securities (including repurchases of Securities pursuant to Section 4.14,
11.1 or 11.2) for Cash, property or securities (excluding payments made with
Junior Securities), or on account of the redemption provisions of the
Securities, shall be made by the Company or any of the Guarantors and
received by the Trustee, by any Holder or by any Paying Agent (or, if the
Company is acting as the Paying Agent, money for any such payment shall be
segregated and held in trust), at a time when such payment or distribution
was prohibited by the provisions of this Section 10.2, then, unless such
payment or distribution is no longer prohibited by this Section 10.2, such
payment or distribution (subject to the provisions of Section 10.7) shall be
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received and held in trust by the Trustee or such Holder or Paying Agent for
the benefit of the holders of Senior Debt of the Company or such Guarantor,
and shall be paid or delivered by the Trustee or such Holders or such Paying
Agent, as the case may be, to the holders of Senior Debt of the Company or
such Guarantor remaining unpaid or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Debt of the Company or such Guarantor may
have been issued, ratably according to the aggregate amounts unpaid on
account of such Senior Debt held or represented by each, for application to
the payment of all Senior Debt in full in Cash or otherwise to the extent
each of the holders of such Senior Debt accept satisfaction of amounts due by
settlement in other than Cash after giving effect to all concurrent payments
and distributions to or for the holders of such Senior Debt.
SECTION 10.3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
DEBT ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or any Guarantor or
upon any dissolution, winding up, total or partial liquidation or
reorganization of the Company or any Guarantor, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding
or upon assignment for the benefit of creditors or any marshalling of assets
or liabilities:
(a) the holders of all Senior Debt of the Company or such
Guarantor, as applicable, shall first be entitled to receive payments in full
of all amounts of Senior Debt in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash
or before the Holders are entitled to receive any payment (including any
payment which may be payable to any Holder by reason of the subordination of
any other indebtedness or other obligations to, or guarantee of, the
Securities) or distribution on account of the principal of, premium, if any,
and any interest on, or other amounts with respect to, the Securities (other
than Junior Securities);
(b) any payment or distribution of assets of the Company or
such Guarantor of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities), to which the Holders
or the Trustee on behalf of the Holders would be entitled (by set-off or
otherwise) except for the provisions of this Article X, shall be paid by the
liquidating Trustee or agent or other person making such a payment or
distribution, directly to the holders of such Senior Debt or their
representative to the extent necessary to make payment in full on all such
Senior Debt remaining unpaid, after giving effect to all concurrent payments
or distributions to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company or any Guarantor (other than
the Junior Securi-
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ties), shall be received by the Trustee or the Holders at a time when such
payment or distribution shall be prohibited by the foregoing provisions, such
payment or distribution shall be held in trust for the benefit of the
holders of such Senior Debt, and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of such Senior Debt
remaining unpaid or to their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt held or represented by each, for
application to the payment of all such Senior Debt may have been issued,
ratably according to the aggregate principal amounts remaining unpaid on
account of such Senior Debt remaining unpaid, to the extent necessary to pay
all such Senior Debt in full in Cash or otherwise to the extent each of the
holders of such Senior Debt accept satisfaction of amounts due by settlement
in other than Cash after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
SECTION 10.4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS
OF SENIOR DEBT.
Subject to the payment in full in Cash of all Senior Debt of the
Company or any Guarantor as provided herein, the Holders of Securities shall
be subrogated to the rights of the holders of such Senior Debt to receive
payments or distributions of assets of the Company applicable to the Senior
Debt until all amounts owing on the Securities shall be paid in full, and for
the purpose of such subrogation no such payments or distributions to the
holders of such Senior Debt by or on behalf of the Company or any Guarantor,
or by or on behalf of the Holders by virtue of this Article X, which
otherwise would have been made to the Holders shall, as between the Company
or any Guarantor and the Holders, be deemed to be payment by the Company or
any Guarantor or on account of such Senior Debt, it being understood that the
provisions of this Article X are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of such Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of
amounts payable under Senior Debt of the Company or any Guarantor, then the
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess
of the amount sufficient to pay all amounts payable under or in respect of
such Senior Debt in full in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash.
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SECTION 10.5. OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company
and any Guarantors and the Holders, the obligation of each such Person, which
is absolute and unconditional, to pay to the Holders the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company
and the Guarantors other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article X, of the
holders of Senior Debt in respect of Cash, property or securities of the
Company and the Guarantors received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article X or elsewhere in
this Indenture or in the Securities, upon any distribution of assets of the
Company and the Guarantors referred to in this Article X, the Trustee,
subject to the provisions of Sections 7.1 and 7.2, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
Trustee or agent or other Person making any distribution to the Trustee or to
the Holders 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 or any Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article X. Nothing in this Section 10.5
shall apply to the claims of, or payments to, the Trustee under or pursuant
to Section 7.7.
Subject to the provisions of Section 7.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a trustee or agent on
behalf of such holder) to establish that such notice has been given by a
holder of Senior Debt (or a trustee or agent on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of a person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article X, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article X, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the
benefit of such
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person pursuant to the terms of this Indenture pending judicial determination
as to the rights of such person to receive such payment.
SECTION 10.6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received, no later than one Business Day prior to such payment, written
notice thereof from the Company or from one or more holders of Senior Debt or
from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and
7.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Securityholders
and, to the extent (i) the making of such deposit by the Company shall not be
in contravention of any term or provision of the New Credit Facility and (ii)
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article X. Otherwise, any deposit of assets
with the Trustee or the Agent (whether or not in trust) for the payment of
principal of or interest on any Securities shall be subject to the provisions
of Sections 10.1, 10.2, 10.3 and 10.4.
SECTION 10.8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Debt may at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities without
incurring any responsibility to the Holders extend, renew, modify or amend
the terms of the Senior Debt or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company and the
Guarantors and any person liable in any manner for the collection of Senior
Debt, all without affecting the subordination provisions or
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liabilities or obligations of the parties to this Indenture or the Holders or
to the holders of the Senior Debt.
SECTION 10.9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of assets and liabilities of the
Company or any Guarantor), the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
the Senior Debt or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Securities. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Debt or their representative to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior Debt or
their representative to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 10.10. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this
Article X shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 6.1 or in any way prevent the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
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SECTION 10.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
DEBT.
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 (other
than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the
Company, any Guarantor or any other Person, cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article
X or otherwise. Nothing in this Section 10.12 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Debt or their representative.
With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically
set forth in this Article X and no implied covenants or obligations with
respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON A
CHANGE OF CONTROL.
(a) In the event that a Change of Control has occurred, each
Holder shall have the right, at such Holder's option, pursuant to an
irrevocable and unconditional offer by the Company (the "Change of Control
Offer"), to require the Company to repurchase all or any part of such
Holder's Securities (PROVIDED, that the principal amount of such Securities
at maturity must be $1,000 or an integral multiple thereof) on a date (the
"Change of Control Purchase Date") that is no later than 35 Business Days
after the Occurrence of such Change of Control, at a cash price (the "Change
of Control Purchase Price") equal to 101% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
(b) In the event of a Change of Control, the Company shall be
required to commence a Change of Control Offer as follows:
(1) the Change of Control Offer shall commence within
10 Business Days following the occurrence of the Change of Control;
(2) the Change of Control Offer shall remain open for
20 Business Days, except to the extent that a longer period is
required
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by applicable law, but in any case not more than 35 Business Days
following commencement (the "Change of Control Offer Period");
(3) upon the expiration of a Change of Control Offer,
the Company shall promptly purchase all of the properly tendered
Securities at the Change of Control Purchase Price;
(4) if the Change of Control Payment Date is on or
after a Record Date and on or before the related interest payment
date, any accrued interest will be paid to the Person in whose name a
Security is registered at the close of business on such Record Date,
and no additional interest will be payable to Securityholders who
tender Securities pursuant to the Change of Control Offer;
(5) the Company shall provide the Trustee and the
Paying Agent with notice of the Change of Control Offer at least three
Business Days before the commencement of any Change of Control Offer;
and
(6) on or before the commencement of any Change of
Control Offer, the Company or the Registrar (upon the request and at
the expense of the Company) shall send, by first-class mail, a notice
to each of the Securityholders, which (to the extent consistent with
this Indenture) shall govern the terms of the Change of Control Offer
and shall state:
(i) the Change of Control Offer is being made pursuant
to such notice and this Section 11.1 and that all Securities, or portions
thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including
the amount of accrued and unpaid interest, subject to clause (b)(4) above),
the Change of Control Purchase Date and the Change of Control Put Date (as
defined below);
(iii) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing
Cash with the Paying Agent in accordance with the last paragraph of this
Section 11.1 or such payment is prevented, any Security, or portion
thereof, accepted for
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payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Purchase Date;
(v) that Holders electing to have a Security, or
portion thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary, be the Company
or any Affiliate of the Company) at the address specified in the notice
prior to the close of business on the earlier of (a) the third Business Day
prior to the Change of Control Payment Date and (b) the third Business Day
following the expiration of the Change of Control Offer (such earlier date
being the "Change of Control Put Date");
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this Indenture
to the contrary, be the Company or any Affiliate of the Company) receives,
up to the close of business on the Change of Control Put Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the Holder is withdrawing and a statement that
such Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(vii) a brief description of the events resulting in
such Change of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender
offers, if applicable, and any provisions of this Indenture which conflict
with such laws shall be deemed to be superseded by the provisions of such
laws.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer on or before the Change of Control
Put Date, (ii) deposit with the Paying Agent Cash sufficient to pay the
Change of Control Purchase Price for all Securities or portions thereof so
tendered and (iii) deliver to the Registrar Securities so accepted together
with an Officers' Certificate listing the aggregate principal amount of the
Securities or portions thereof being purchased by the Company. The Paying
Agent shall on the Change of Control Purchase Date or promptly thereafter
mail to Holders of Securities so accepted payment in an amount equal to the
Change of Control Purchase Price for such Securities, and the Trustee or its
authenticating agent shall promptly authenticate and the Registrar shall mail
or deliver (or cause to be transferred by book
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entry) to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered; provided, however, that each
such new Security will be in a principal amount of $1,000 or an integral
multiple thereof. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the consummation thereof.
ARTICLE XII
GUARANTY
SECTION 12.1. GUARANTY.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, to the fullest
extent permitted by applicable law, each of the Guarantors hereby irrevocably
and unconditionally guarantees (the "Guaranty"), jointly and severally, to
each Holder of a Security authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company under this Indenture or the Securities, that: (w) the principal and
premium (if any) of and interest on the Securities will be paid in full when
due, whether at the Maturity Date or Interest Payment Date, by acceleration,
call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer
or otherwise; (x) all other obligations of the Company to the Holders or the
Trustee under this Indenture or the Securities will be promptly paid in full
or performed, all in accordance with the terms of this Indenture and the
Securities; and (y) in case of any extension of time of payment or renewal of
any Securities or any of such other obligations, they will be paid in full
when due or performed in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason, each
Guarantor shall be jointly and severally obligated to pay the same before
failure so to pay becomes an Event of Default. If the Company or a Guarantor
defaults in the payment of the principal of, premium, if any, or interest on,
the Securities when and as the same shall become due, whether upon maturity,
acceleration, call for redemption, upon a Change of Control Offer, upon an
Asset Sale Offer or otherwise, without the necessity of action by the Trustee
or any Holder, each Guarantor shall be required, jointly and severally, to
promptly make such payment in full.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the
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same, any delays in obtaining or realizing upon or failures to obtain or
realize upon collateral, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a guarantor
(except as provided in Sections 12.4 and 12.5). Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior
disposition of the assets of the Company to meet its obligations, protest,
notice and all demands whatsoever and covenants that this Guaranty will not
be discharged (except to the extent released pursuant to Section 12.4 or
12.5) except by complete performance of the obligations contained in the
Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian,
trustee, or similar official acting in relation to the Company or such
Guarantor, any amount paid by either the Company or such Guarantor to the
Trustee or such Holder, this Guaranty, to the extent theretofore discharged,
shall be reinstated in full force and effect (except to the extent released
pursuant to Section 12.4 or 12.5). Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.2 for the purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company of the obligations guaranteed hereby, and (ii)
in the event of any declaration of acceleration of those obligations as
provided in Section 6.2, those obligations (whether or not due and payable)
will forthwith become due and payable by each of the Guarantors for the
purpose of this Guaranty.
(d) Each Guarantor and by its acceptance of a Security issued
hereunder each Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor set forth in Section 12.1(a) not
constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its guarantee set forth in Section
12.1(a) shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
its guarantee or pursuant to the following paragraph of this Section 12.1(d),
result in the obligations of such Guarantor under such guarantee not
constituting such a fraudulent transfer or conveyance.
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Each Guarantor that makes any payment or distribution under Section
12.1(a) shall be entitled to a contribution from each other Guarantor equal
to its Pro Rata Portion of such payment or distribution. For purposes of the
foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of
the net assets of all Guarantors held by such Guarantor, determined in
accordance with GAAP.
(e) It is the intention of each Guarantor and the Company
that the obligations of each Guarantor hereunder shall be joint and several
and in, but not in excess of, the maximum amount permitted by applicable law.
Accordingly, if the obligations in respect of the Guaranty would be annulled,
avoided or subordinated to the creditors of any Guarantor by a court of
competent jurisdiction in a proceeding actually pending before such court as
a result of a determination both that such Guaranty was made without fair
consideration and, immediately after giving effect thereto, such Guarantor
was insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of such Guarantor under such
Guaranty shall be reduced by such court if and to the extent such reduction
would result in the avoidance of such annulment, avoidance or subordination;
PROVIDED, HOWEVER, that any reduction pursuant to this paragraph shall be
made in the smallest amount as is strictly necessary to reach such result.
For purposes of this paragraph, "fair consideration", "insolvency", "unable
to pay its debts as they mature," "unreasonably small capital" and the
effective times of reductions, if any, required by this paragraph shall be
determined in accordance with applicable law.
SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY.
Each Guarantor shall be deemed to have signed on each Security
issued hereunder the notation of guarantee set forth on the form of the
Securities attached hereto as Exhibit A to the same extent as if the
signature of such Guarantor appeared on such Security. The delivery of any
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the guaranty set forth in Section 12.1 on behalf
of each Guarantor. The notation of a guaranty set forth on any Security shall
be null and void and of no further effect with respect to the guaranty of any
Guarantor which, pursuant to Section 12.4 or Section 12.5, is released from
such guaranty.
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SECTION 12.3. SUBSIDIARY GUARANTORS.
(i) All present Subsidiaries of the Company and their Subsidiaries
(other than the Excluded Subsidiaries), and (ii) all future Subsidiaries of
the Company and their Subsidiaries (other than Excluded Subsidiaries), which
are not prohibited from becoming guarantors by law or by the terms of any
Acquired Indebtedness or any agreement (other than an agreement entered into
in connection with the transaction resulting in such person becoming a
Subsidiary of the Company or its Subsidiaries) to which such Subsidiary is a
party ("Future Subsidiary Guarantors"), jointly and severally, will guaranty
irrevocably and unconditionally all principal, premium, if any, and interest
on the Securities on a senior subordinated basis; PROVIDED, HOWEVER, that
upon any change in the law, Acquired Indebtedness or any agreement (whether
by expiration, termination or otherwise) which no longer prohibits a
Subsidiary of the Company from becoming a Subsidiary Guarantor, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor;
PROVIDED, FURTHER, in the event that any Subsidiary of the Company or their
Subsidiaries becomes a guarantor of any other Indebtedness of the Company or
any of its Subsidiaries or any of their Subsidiaries, such Subsidiary shall
immediately thereafter become a Subsidiary Guarantor.
SECTION 12.4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or any other Guarantor. Upon any such consolidation or
merger, the guarantees (as set forth in Section 12.1) of the Guarantor which
is not the survivor of the merger or consolidation, and of any Subsidiary of
such Guarantor that is also a Guarantor, shall be released and shall no
longer have any force or effect.
(b) Nothing contained in this Indenture shall prevent any
sale or conveyance of assets of any Guarantor (whether or not constituting
all or substantially all of the assets of such Guarantor) to any Person,
provided that the Company shall comply with the provisions of Section 4.14
and 4.17, and provided further that, in the event that all or substantially
all of the assets of a Guarantor are sold or conveyed, the guarantees of such
Guarantor (as set forth in Section 12.1) shall be released and shall no
longer have any force or effect.
(c) Except as provided in Section 12.4(a) or Section 12.5,
each Guarantor shall not, directly or indirectly, consolidate with or merge
with or into another Person, unless (i) either (a) the Guarantor is the
continuing entity or (b) the resulting or surviving entity is a corporation
organized under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all
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of the obligations of the Guarantor in connection with the Securities and
this Indenture; (ii) no Default or Event of Default would occur as a
consequence of (after giving effect, on a PRO FORMA basis, to) such
transaction; and (iii) the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation or merger and if a supplemental indenture is required, such
supplemental indenture comply with this Indenture and that all conditions
precedent herein relating to such transaction have been satisfied.
(d) Upon any consolidation or merger of a Guarantor in
accordance with Section 12.4 hereof, the successor corporation formed by such
consolidation or into which the Guarantor is merged shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation
had been named herein as the Guarantor, and when a successor corporation duly
assumes all of the obligations of the Guarantor pursuant hereto and pursuant
to the Securities, the Guarantor shall be released from such obligations.
SECTION 12.5. RELEASE OF GUARANTORS.
(a) Without any further notice or action being required by
any Person, any Guarantor, and each Subsidiary of such Guarantor that is also
a Guarantor, shall be fully and conditionally released and discharged from
all obligations under its guarantee and this Indenture, upon (i) the sale or
other disposition of all or substantially all of the assets or properties of
such Guarantor, or 50% or more of the Equity Interests of any such Guarantor
to Persons other than the Company and their Subsidiaries or (ii) the
consolidation or merger of any such Guarantor with any Person other than the
Company or a Subsidiary of the Company, if, as a result of such consolidation
or merger, Persons other than the Company and their Subsidiaries beneficially
own more than 50% of the capital stock of such Guarantor, PROVIDED that, in
either such case, the Net Cash Proceeds of such sale, disposition, merger or
consolidation are applied in accordance with Section 4.14 of this Indenture;
or (iii) a Legal Defeasance or Covenant Defeasance, as set forth in Article
VIII.
(b) The releases and discharges set forth in Section 12.5(a)
shall be effective (i) in the case of releases and discharges effected
pursuant to clause (i) or (ii) of Section 12.5(a) by virtue of a sale,
disposition, consolidation or merger, on the date of consummation thereof and
(ii) in the case of releases and discharges effected pursuant to clause (iii)
of Section 12.5(a), upon the date of Covenant Defeasance or Legal Defeasance,
as applicable. At the written request of the Company, the Trustee shall
promptly execute and deliver appropriate instruments in forms reasonably
acceptable to the Company evidencing and further implementing any releases
and discharges pursuant to the foregoing provisions. If the Company desires
the instruments evidencing or
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implementing any releases or discharges to be executed prior to the
effectiveness of such releases and discharges as set forth above, such
instruments may be made conditional upon the occurrence of the events
necessary to cause the effectiveness of such releases and discharges, as
specified in the first sentence of this Section 12.5.
(c) Notwithstanding the foregoing provisions of this Article
XII, (i) any Guarantor whose guarantee would otherwise be released pursuant
to the provisions of this Section 12.5 may elect, by written notice to the
Trustee, to maintain such guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such guarantee (which
election to maintain such guarantee in effect may be conditional or for a
limited period of time), and (ii) any Subsidiary of the Company which is not
a Guarantor may elect, by written notice to the Trustee, to become a
Guarantor (which election may be conditional or for a limited period of time).
SECTION 12.6. CERTAIN BANKRUPTCY EVENTS.
Each Guarantor hereby covenants and agrees, to the fullest extent
that it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, such
Guarantor shall not file (or join in any filing of), or otherwise seek to
participate in the filing of, any motion or request seeking to stay or to
prohibit (even temporarily) execution on the Guaranty and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the Bankruptcy Law or otherwise.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 13.2. NOTICES.
Any notices or other communications to the Company or any
Guarantor, Paying Agent, Registrar, Securities Custodian, transfer agent or
the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
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if to the Company or any Guarantor:
Jacor Communications Company
50 East River Center Boulevard, 12th Floor
Covington, KY 41011
Attention: Treasurer
Telephone: (606) 655-2267
Telecopy: (606) 655-9345
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Telephone: (212) 815-5741
Telecopy: (212) 815-5915
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or
made as of the date so delivered, if personally delivered; when receipt is
acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
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SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, such Person shall
furnish to the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) 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 met; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee), stating that, in the opinion
of such counsel, all such conditions precedent have been met;
PROVIDED, HOWEVER, that in the case of any such request or application
as to which the furnishing of particular documents is specifically
required by any provision of this Indenture, no additional certificate
or opinion need be furnished under this Section 13.4.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been met; and
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<PAGE>
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been met;
PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 13.7. NON-BUSINESS DAYS.
If a payment date is not a Business Day at such place, payment may
be made at such place on the next succeeding day that is a Business Day, and
no interest shall accrue for the intervening period.
SECTION 13.8. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE
COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
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<PAGE>
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN
ANY OTHER JURISDICTION.
SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future of the Company, the Guarantors or
any successor entity, shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or this
Indenture by reason of his or its status as such stockholder, partner,
employee, officer or director. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
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<PAGE>
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the 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.
97
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
JACOR COMMUNICATIONS COMPANY
By:
----------------------------------------------
Name:
Title:
PARENT GUARANTOR
JACOR COMMUNICATIONS, INC.
By:
----------------------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
AFTER MIDNITE ENTERTAINMENT, INC.
By:
----------------------------------------------
Name:
Title:
BROADCAST FINANCE, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
CINE FILMS, INC.
By:
----------------------------------------------
Name:
Title:
CINE GUARANTORS, INC.
By:
----------------------------------------------
Name:
Title:
CINE GUARANTORS II, INC.
By:
----------------------------------------------
Name:
Title:
CINE GUARANTORS II, LTD.
By:
----------------------------------------------
Name:
Title:
CINE MOBILE SYSTEMS INT'L N.V.
By:
----------------------------------------------
Name:
Title:
<PAGE>
CINE MOVIL S.A. DE C.V.
By:
----------------------------------------------
Name:
Title:
CITICASTERS CO.
By:
----------------------------------------------
Name:
Title:
EFM PROGRAMMING, INC.
By:
----------------------------------------------
Name:
Title:
F.M.I. PENNSYLVANIA, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
GACC-N26LB, INC.
By:
----------------------------------------------
Name:
Title:
GREAT AMERICAN MERCHANDISING GROUP, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By:
----------------------------------------------
Name:
Title:
INMOBILARIA RADIAL, S.A. DE C.V.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING CORPORATION
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF ATLANTA, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR BROADCASTING OF CHARLESTON, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF COLORADO, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF FLORIDA, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF KNOXVILLE, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF LAS VEGAS, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR BROADCASTING OF LAS VEGAS II
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF LOUISVILLE, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF LOUISVILLE II, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF SALT LAKE CITY, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR BROADCASTING OF SALT LAKE CITY II, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF ST. LOUIS, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF SAN DIEGO, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF SARASOTA, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR BROADCASTING OF TAMPA BAY, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BROADCASTING OF TOLEDO, INC.
By:
----------------------------------------------
Name:
Title:
JACOR BORADCASTING OF YOUNGSTOWN, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF CHARLESTON, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF KANSAS CITY, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR LICENSEE OF LAS VEGAS, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF LAS VEGAS II, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF LOUISVILLE, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF LOUISVILLE II, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
JACOR LICENSEE OF SALT LAKE CITY, INC.
By:
----------------------------------------------
Name:
Title:
JACOR LICENSEE OF SALT LAKE CITY II, INC.
By:
----------------------------------------------
Name:
Title:
JACOR CABLE, INC.
By:
----------------------------------------------
Name:
Title:
JACOR/PREMIERE HOLDING, INC.
By:
----------------------------------------------
Name:
Title:
JBSL, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
LOCATION PRODUCTIONS, INC.
By:
----------------------------------------------
Name:
Title:
LOCATION PRODUCTIONS II, INC.
By:
----------------------------------------------
Name:
Title:
MULTIVENSE ACQUISITION CORP.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST CENTER, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
NOBLE BROADCAST GROUP, INC.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST HOLDINGS, INC.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST LICENSES, INC.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST OF COLORADO, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
NOBLE BROADCAST OF ST. LOUIS, INC.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST OF SAN DIEGO, INC.
By:
----------------------------------------------
Name:
Title:
NOBLE BROADCAST OF TOLEDO, INC.
By:
----------------------------------------------
Name:
Title:
NOBRO, S.C.
By:
----------------------------------------------
Name:
Title:
NOVA MARKETING GROUP, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
NSN NETWORK SERVICES, LTD.
By:
----------------------------------------------
Name:
Title:
PREMIERE RADIO NETWORKS, INC.
By:
----------------------------------------------
Name:
Title:
RADIO-ACTIVE MEDIA, INC.
By:
----------------------------------------------
Name:
Title:
SPORTS RADIO BROADCASTING, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
SPORTS RADIO, INC.
By:
----------------------------------------------
Name:
Title:
THE SY FISCHER COMPANY AGENCY, INC.
By:
----------------------------------------------
Name:
Title:
VTTV PRODUCTIONS
By:
----------------------------------------------
Name:
Title:
WHOK, INC.
By:
----------------------------------------------
Name:
Title:
<PAGE>
THE BANK OF NEW YORK, as Trustee
By:
----------------------------------------------
Name:
Title:
<PAGE>
Exhibit A
[FORM OF SECURITY]
JACOR COMMUNICATIONS COMPANY
[ ]% SENIOR SUBORDINATED NOTE
DUE 2008
CUSIP:
No. $
----------
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company" which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to _______,
or registered assigns, the principal sum of _____ Dollars, on January [ ],
2008.
Interest Payment Dates: June 15 and December 15; commencing June 15,
1998.
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated: January [ ], 1998
Jacor Communications Company
a Florida corporation
By:
--------------------------------------
Name:
Title:
Attest:
--------------------------
Secretary
A-1
<PAGE>
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee
By:
--------------------------------
Authorized Signatory
Dated: January [ ], 1998
A-2
<PAGE>
JACOR COMMUNICATIONS COMPANY
[ ]% SENIOR SUBORDINATED NOTE
DUE 2008
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the Company or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. , has an interest herein.(1)
1. INTEREST.
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of [ ]% per annum from the date of issuance
until maturity. To the extent it is lawful, the Company promises to pay
interest on any interest payment due but unpaid on such principal amount at a
rate of [ ]% per annum compounded semi-annually.
The Company will pay interest semi-annually on June 15 and December
15 of each year or, if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"), commencing June
15, 1998. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid on the
Securities, from the date of issuance. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
- --------------------------
(1) This paragraph should only be added if the Security is issued in global
form.
A-3
<PAGE>
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of
business on June 1 and December 1 immediately preceding the Interest Payment
Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. Except as provided below, the Company shall pay
principal and interest in such coin or currency of the United States of
America as at the time of payment shall be legal tender for payment of public
and private debts ("Cash"). The Securities will be payable as to principal,
premium and interest at the office or agency of the Company maintained for
such purpose within or without the City and State of New York or, at the
option of the Company, payment of principal, premium and interest may be made
by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest
and premium on all Global Securities and all other Securities the Holders of
which shall have provided written wire transfer instructions to the Company
or the Paying Agent at least 15 days prior to the date for payment.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of
January [ ], 1998 (the "Indenture"), among the Company, Jacor
Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the
Subsidiary Guarantors named therein (the "Subsidiary Guarantors" together
with the Parent Guarantor, the "Guarantors"), and The Bank of New York (the
"Trustee" which term includes any successor Trustee under the Indenture).
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture. The
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and said Act for a statement of them. The
Securities are senior subordinated obligations of the Company limited in
aggregate principal amount to $[ ]. The Securities are, to the
extent and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full
A-4
<PAGE>
of all Senior Debt of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose. The Securities
are guaranteed on a senior subordinated basis by the Guarantors.
5. REDEMPTION.
The Securities may be redeemed, in whole or in part, at any time on
or after June [ ], 2003, at the option of the Company, at the Redemption
Price (expressed as a percentage of principal amount) set forth below with
respect to the indicated Redemption Date, in each case (subject to the right
of Holders of record on a Record Date that is on or prior to such Redemption
Date to receive interest due on the Interest Payment Date to which such
Record Date relates), plus any accrued but unpaid interest to the Redemption
Date. The Securities may not be so redeemed prior to June [ ], 20[ ].
If redeemed during
the 12-month period
commencing June 15, Redemption Price
------------------- ----------------
20[ ] . . . . . . . . . [ ]%
20[ ] . . . . . . . . . [ ]%
20[ ] . . . . . . . . . [ ]%
20[ ] and thereafter. . 100.000%
Any such redemption will comply with Article III of the Indenture.
6. NOTICE OF REDEMPTION.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption
shall have been deposited with the Paying Agent on such Redemption Date and
payment of the Securities called for redemption is not otherwise prohibited,
the Securities called for
A-5
<PAGE>
redemption will cease to bear interest and the only right of the Holders of
such Securities will be to receive payment of the Redemption Price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may
register the transfer of, or exchange Securities in accordance with, the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Securities (a) selected for
redemption except the unredeemed portion of any Security being redeemed in
part or (b) for a period beginning 15 Business Days before the mailing of a
notice of an offer to repurchase or redemption and ending at the close of
business on the day of such mailing.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of
it for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at their written request. After that, all liability of the
Trustee and such Paying Agent(s) with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, Cash,
U.S. Government Obligations 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 on
the Securities to redemption or maturity and comply with the other provisions
of the Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Securities (including the
restrictive covenants described in paragraph 12 below, but excluding their
obligation to pay the principal of and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have its obligations discharged with respect to
outstanding Securities.
A-6
<PAGE>
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance with
any provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding. An amendment,
supplement or waiver with respect to Section 11.1 (Change of Control Offer)
in a manner adverse to the Holders, requires not less than 75% of the
aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may under certain
circumstances amend or supplement the Indenture or the Securities to, among
other things, cure any ambiguity, defect or inconsistency, or make any other
change that does not adversely affect the rights of any Holder of a Security.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and the Guarantors to, among other things, incur additional
Indebtedness and Disqualified Equity Interests, pay dividends or make certain
other restricted payments, enter into certain transactions with Affiliates,
incur Liens, sell assets, merge or consolidate with any other Person or
transfer (by lease, assignment or otherwise) substantially all of the
properties and assets of the Company. The limitations are subject to a
number of important qualifications and exceptions. The Company must
periodically report to the Trustee on compliance with such limitations.
13. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required
to offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with accrued interest to the Change of Control Purchase Date.
Holders of Securities will receive a Change of Control Offer from the Company
prior to any related Change of Control Purchase Date and may elect to have
such Securities purchased by completing the form entitled "Option of Holder
to Elect Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of
the Company, the Guarantors or any of their respective Subsidiaries to sell
assets. In the event the proceeds from a permitted Asset Sale exceed certain
amounts, as specified in the Indenture, the Company will be required to use
the proceeds of such
A-7
<PAGE>
Asset Sale in the manner required by the Indenture, including (i) to reinvest
such proceeds in its business, (ii) to repay Senior Debt, (iii) to make an
offer to purchase the 10 1/8% Notes, (iv) to make an offer to purchase the
9 3/4% Notes, or (v) to make an offer to purchase a certain amount of each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
14. NOTATION OF GUARANTY.
As set forth more fully in the Indenture, the Persons constituting
Guarantors from time to time, in accordance with the provisions of the
Indenture, unconditionally and jointly and severally guarantee, in accordance
with Section 12.1 of the Indenture, to the Holder and to the Trustee and its
successors and assigns, that (i) the principal of and interest on the
Security will be paid, whether at the Maturity Date or Interest Payment
Dates, by acceleration, call for redemption upon a Change of Control Offer,
upon an Asset Sale Offer or otherwise, and all other obligations of the
Company to the Holder or the Trustee under the Indenture or this Security
will be promptly paid in full or performed, all in accordance with the terms
of the Indenture and this Security, and (ii) in the case of any extension of
payment or renewal of this Security or any of such other obligations, they
will be paid in full when due or performed in accordance with the terms of
such extension or renewal, whether at the Maturity Date, as so extended, by
acceleration, call for redemption, upon a Change of Control Offer, upon an
Asset Sale Offer or otherwise. Such guarantees shall cease to apply, and
shall be null and void, with respect to any Guarantor who, pursuant to
Article XII of the Indenture, is released from its guarantees, or whose
guarantees otherwise cease to be applicable pursuant to the terms of the
Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or
the Holders of 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities
A-8
<PAGE>
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest), if it determines that
withholding notice is in their interest.
17. TRUSTEE OR AGENT DEALINGS WITH THE COMPANY.
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates as if it were not the Trustee and such Agent.
18. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future, of the Company, the Guarantors or
any successor entity shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or the
Indenture by reason of his or its status as such stockholder, partner, employee,
officer or director. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
A-9
<PAGE>
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Jacor Communications Company
50 East River Center Boulevard
12th Floor
Covington, Kentucky 41011
Attn: Corporate Secretary
23. GOVERNING LAW
The Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York.
A-10
<PAGE>
FORM OF ASSIGNMENT
I or we assign this Security to
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
- --------------------------
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
---------- ------------------------------------
- ------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guaranty*
- ------------------------
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(1) The Securities Transfer Agent Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP) or (iv) in such other guarantee
program acceptable to the Trustee.
A-11
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box: /__/ Section 4.14 /__/Section 11.1
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or Article XI of the Indenture, as the case
may be, state the amount you want to be purchased: $________
Date: ________________ Signature: ________________________
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guaranty**
- -------------------------
** NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP) or (iv) in such other guarantee
program acceptable to the Trustee.
A-12
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES***
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
<TABLE>
<CAPTION>
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized Signatory of
Principal Amount Principal Amount of Security following Trustee or
Date of of this Global this Global such decrease (or Securities
Exchange Security Security increase) Custodian
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
- -----------------------
*** This schedule should only be added if the Security is issued in global
form.
A-13
<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: [ ]% SENIOR SUBORDINATED NOTES DUE 2008 OF JACOR COMMUNICATIONS COMPANY
This Certificate relates to $______ principal amount of Securities held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
/ / has requested the Registrar by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ / has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
Date:
-------------------------------
A-14
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------------
JACOR COMMUNICATIONS, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-0978313
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
50 East RiverCenter Boulevard 12th Floor
Covington, Kentucky 41011
(Address of principal executive offices) (Zip code)
--------------------------
Liquid Yield Option Notes
(Title of the indenture securities)
==============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 15th day of January, 1998.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
EXHIBIT 7
- -------------------------------------------------------------------------------
CONSOLIDATED REPORT OF CONDITION OF
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin.................. $ 5,004,638
Interest-bearing balances .......... 1,271,514
Securities:
Held-to-maturity securities ........ 1,105,782
Available-for-sale securities ...... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell..... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................34,916,196
LESS: Allowance for loan and
lease losses ..............581,177
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve.... 34,334,590
Assets held in trading accounts ...... 2,035,284
Premises and fixed assets (including
capitalized leases) ................ 671,664
Other real estate owned .............. 13,306
Investments in unconsolidated
subsidiaries and associated
companies .......................... 210,685
Customers' liability to this bank on
acceptances outstanding ............ 1,463,446
Intangible assets .................... 753,190
Other assets ......................... 1,784,796
-----------
Total assets ......................... $57,536,995
-----------
-----------
LIABILITIES
Deposits:
In domestic offices ................ $27,270,824
Noninterest-bearing ......12,160,977
Interest-bearing .........15,109,847
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 14,687,806
Noninterest-bearing .........657,479
Interest-bearing .........14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase. 1,946,099
Demand notes issued to the U.S.
Treasury ........................... 283,793
Trading liabilities .................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,245,014
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ......................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,473,588
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 2,193,031
-----------
Total liabilities .................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 25,428
Cumulative foreign currency transla-
tion adjustments .................. ( 16,342)
-----------
Total equity capital ................ 4,818,697
-----------
Total liabilities and equity
capital ........................... $57,536,995
-----------
-----------
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot
Thomas A. Renyi
Alan R. Griffith Directors
- ------------------------------------------------------------------------------
<PAGE>
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------------
JACOR COMMUNICATIONS COMPANY
(Exact name of obligor as specified in its charter)
Florida 59-2054850
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
50 East RiverCenter Boulevard 12th Floor
Covington, Kentucky 41011
(Address of principal executive offices) (Zip code)
JACOR COMMUNICATIONS, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-0978313
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
50 East RiverCenter Boulevard 12th Floor
Covington, Kentucky 41011
(Address of principal executive offices) (Zip code)
TABLE OF ADDITIONAL REGISTRANTS RELATING TO THE GUARANTORS
BROADCAST FINANCE, INC. Ohio 31-1390698
CINE FILMS, INC. California 95-2945526
<PAGE>
CINE GUARANTORS, INC. California 95-2677644
CINE GUARANTORS II, INC. California 95-2960196
CINE GUARANTORS II, LTD. Canada Not Applicable
CINE MOBILE SYSTEMS Antille Not Applicable
INT'L. N.V.
CINE MOVIL S.A. de C.V. Mexico Not Applicable
CITICASTERS CO. Ohio 31-1081002
GACC-N26LB, INC. Delaware 31-1231527
GREAT AMERICAN MERCHANDISING New York 13-2658721
GROUP, INC.
GREAT AMERICAN TELEVISION California 31-1019819
PRODUCTIONS, INC.
INMOBILIARIA RADIAL, S.A. Mexico Not Applicable
de C.V.
JACOR BROADCASTING Ohio 31-1363232
CORPORATION
JACOR BROADCASTING OF Georgia 31-1133504
ATLANTA, INC.
JACOR BROADCASTING OF Delaware 57-1030503
CHARLESTON, INC.
JACOR BROADCASTING OF Colorado 31-1212116
COLORADO, INC.
JACOR BROADCASTING OF California 33-0250362
DENVER, INC.
JACOR BROADCASTING OF Florida 31-1102108
FLORIDA, INC.
JACOR BROADCASTING OF Delaware 43-1722735
KANSAS CITY, INC.
JACOR BROADCASTING OF Delaware 61-1263208
LAS VEGAS, INC.
JACOR BROADCASTING OF Delaware 31-1506631
LAS VEGAS II, INC.
JACOR BROADCASTING OF Delaware 61-1257881
LOUISVILLE, INC.
JACOR BROADCASTING OF Delaware 31-1506626
LOUISVILLE II, INC.
JACOR BROADCASTING OF Delaware 87-0546502
SALT LAKE CITY, INC.
JACOR BROADCASTING OF Delaware 31-1506618
SALT LAKE CITY II, INC.
JACOR BROADCASTING OF Delaware 31-1440011
SAN DIEGO, INC.
JACOR BROADCASTING OF Florida 31-1468564
SARASOTA, INC.
JACOR BROADCASTING OF Delaware 33-0294761
ST. LOUIS, INC.
JACOR BROADCASTING OF Florida 31-1234979
TAMPA BAY, INC.
JACOR BROADCASTING OF California 30-0200806
TOLEDO, INC.
JACOR BROADCASTING OF Ohio 34-1308506
YOUNGSTOWN, INC.
JACOR CABLE, INC. Kentucky 31-1273897
JACOR LICENSEE OF Delaware 57-1031405
CHARLESTON, INC.
-2-
<PAGE>
JACOR LICENSEE OF Delaware 43-1724459
KANSAS CITY, INC.
JACOR LICENSEE OF Delaware 88-0345737
LAS VEGAS, INC.
JACOR LICENSEE OF Delaware 31-1506613
LAS VEGAS II, INC.
JACOR LICENSEE OF Delaware 61-1289758
LOUISVILLE, INC.
JACOR LICENSEE OF Delaware 31-1506609
LOUISVILLE II, INC.
JACOR LICENSEE OF Delaware 87-0546823
SALT LAKE CITY, INC.
JACOR LICENSEE OF Delaware 31-1506621
SALT LAKE CITY II, INC.
JACOR/PREMIERE HOLDING, INC. Delaware 95-4523968
JBSL, INC. Missouri 43-1735433
LOCATION PRODUCTIONS, INC. California 95-2556702
LOCATION PRODUCTIONS II, INC. California 95-2945537
MULTIVERSE ACQUISITION CORP. Delaware Pending
NOBLE BROADCAST CENTER, INC. California 33-0189045
NOBLE BROADCAST GROUP, INC. Delaware 33-0215206
NOBLE BROADCAST HOLDINGS, INC. Delaware 33-0492627
NOBLE BROADCAST LICENSES, INC. California 34-1794221
NOBLE BROADCAST OF California 95-3230874
SAN DIEGO, INC.
NOBRO, S.C. Mexico Not Applicable
NOVA MARKETING GROUP, INC. California 33-0578898
NSN NETWORK SERVICES, LTD. Delaware 31-1125479
PREMIERE RADIO NETWORKS, INC. Delaware 95-4083971
RADIO-ACTIVE MEDIA, INC. Delaware 31-1511358
SPORTS RADIO California 33-0525378
BROADCASTING, INC.
SPORTS RADIO, INC. California 95-4350343
THE SY FISCHER COMPANY California 95-2792659
AGENCY, INC.
VTTV PRODUCTIONS California 31-0924795
WHOK, INC. Ohio 34-1092716
--------------------------
Senior Subordinated Notes Due 2008
(Title of the indenture securities)
==============================================================================
-3-
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 15th day of January, 1998.
THE BANK OF NEW YORK
By: /s/ Walter N. Gitlin
------------------------------
Name: Walter N. Gitlin
Title: Vice President
<PAGE>
EXHIBIT 7
- -------------------------------------------------------------------------------
CONSOLIDATED REPORT OF CONDITION OF
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................ $ 5,004,638
Interest-bearing balances .......... 1,271,514
Securities:
Held-to-maturity securities ........ 1,105,782
Available-for-sale securities ...... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................34,916,196
LESS: Allowance for loan and
lease losses ..............581,177
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve.... 34,334,590
Assets held in trading accounts ...... 2,035,284
Premises and fixed assets (including
capitalized leases) ................ 671,664
Other real estate owned .............. 13,306
Investments in unconsolidated
subsidiaries and associated
companies .......................... 210,685
Customers' liability to this bank on
acceptances outstanding ............ 1,463,446
Intangible assets .................... 753,190
Other assets ......................... 1,784,796
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Total assets ......................... $57,536,995
-----------
-----------
LIABILITIES
Deposits:
In domestic offices ................ $27,270,824
Noninterest-bearing ......12,160,977
Interest-bearing .........15,109,847
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 14,687,806
Noninterest-bearing .........657,479
Interest-bearing .........14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase. 1,946,099
Demand notes issued to the U.S.
Treasury ........................... 283,793
Trading liabilities .................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,245,014
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ......................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,473,588
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 2,193,031
-----------
Total liabilities .................... 52,718,298
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EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 25,428
Cumulative foreign currency transla-
tion adjustments .................. ( 16,342)
-----------
Total equity capital ................ 4,818,697
-----------
Total liabilities and equity
capital ........................... $57,536,995
-----------
-----------
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot
Thomas A. Renyi
Alan R. Griffith Directors
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