EXHIBIT 4.4
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LOEWS CINEPLEX ENTERTAINMENT CORPORATION
As Issuer
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TO
BANKERS TRUST COMPANY
As Trustee
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----------------
Indenture
Dated as of August 5, 1998
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$300,000,000
8 7/8% Senior Subordinated Notes due 2008
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.....................................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 5, 1998
Trust Indenture Indenture
Act Section Section
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section 310(a)(1) ......................................... 609
(a)(2) ......................................... 609
(a)(3) ......................................... Not Applicable
(a)(4) ......................................... Not Applicable
(b) ......................................... 608
610
section 311(a) ......................................... 613(a)
(b) ......................................... 613(b)
(b)(2) ......................................... 703(a)(2)
703(b)
section 312(a) ......................................... 701
702(a)
(b) ......................................... 702(b)
(c) ......................................... 702(c)
section 313(a) ......................................... 703(a)
(b) ......................................... 703(b)
(c) ......................................... 703(a)
703(b)
(d) ......................................... 703(c)
section 314(a) ......................................... 704
(b) ......................................... Not Applicable
(c)(1) ......................................... 102
(c)(2) ......................................... 102
(c)(3) ......................................... Not Applicable
(d) ......................................... Not Applicable
(e) ......................................... 102
section 315(a) ......................................... 601(a)
(b) ......................................... 602
703(a)(6)
(c) ......................................... 601(b)
(d) ......................................... 601(c)
(d)(1) ......................................... 601(a)(1)
(d)(2) ......................................... 601(c)(2)
(d)(3) ......................................... 601(c)(3)
(e) ......................................... 514
section 316(a) ......................................... 101
(a)(1)(A) ......................................... 502
512
(a)(1)(B) ......................................... 513
(a)(2) ......................................... Not Applicable
(b) ......................................... 508
section 317(a)(1) ......................................... 503
(a)(2) ......................................... 504
(b) ......................................... 1003
section 318(a) ......................................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
TABLE OF CONTENTS
Page
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INDENTURE.....................................................................1
RECITALS OF THE COMPANY.......................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.....................................................1
Acquired Debt..........................................................2
Act....................................................................2
Affiliate..............................................................2
Agent Member...........................................................2
Applicable Procedures..................................................3
Asset Disposition......................................................3
Board of Directors.....................................................3
Board Resolution.......................................................3
Business Day...........................................................4
Capital Lease Obligation...............................................4
Capital Stock..........................................................4
Cash Equivalents.......................................................4
Cedel..................................................................4
Closing Date...........................................................4
Commission.............................................................5
Company................................................................5
Company Request........................................................5
Consolidated Cash Flow Available for
Fixed Charges........................................................5
Consolidated Cash Flow Coverage Ratio..................................6
Consolidated Fixed Charges.............................................6
Consolidated Income Tax Expense........................................6
Consolidated Interest Expense..........................................6
Consolidated Net Income................................................7
Consolidated Net Worth.................................................8
Consolidated Tangible Assets...........................................8
Corporate Trust Office.................................................8
Debt...................................................................8
Depositary.............................................................9
Designated Senior Debt.................................................9
DTC....................................................................9
Euroclear..............................................................9
Event of Default.......................................................9
Exchange and Registration Rights Agreement.............................9
Exchange Offer........................................................10
Exchange Registration Statement.......................................10
Exchange Act..........................................................10
Exchange Notes........................................................10
Global Note...........................................................10
Guarantee.............................................................10
Holder................................................................10
Incur.................................................................11
Indenture.............................................................11
Initial Purchasers....................................................11
Interest Payment Date.................................................11
Interest Rate, Currency or Commodity Price
Agreement...........................................................11
Investment............................................................11
Lien..................................................................12
Maturity..............................................................12
Moodys................................................................12
Net Available Proceeds................................................12
Note Purchase Agreement...............................................13
Notes.................................................................13
Offer to Purchase.....................................................13
Officers' Certificate.................................................15
Opinion of Counsel....................................................15
Original Notes........................................................15
Outstanding...........................................................16
Paying Agent..........................................................17
Permitted Holder......................................................17
Permitted Interest Rate, Currency or Commodity
Price Agreement.....................................................17
Permitted Investments.................................................17
Person................................................................18
Predecessor Note......................................................18
Preferred Stock.......................................................18
Public Equity Offering................................................18
Qualifying Theater Assets.............................................18
Receivables...........................................................19
Receivables Sale......................................................19
Redeemable Stock......................................................19
Redemption Date.......................................................19
Redemption Price......................................................19
Registration Default..................................................19
Registration Default Period...........................................20
Regulation S..........................................................20
Regulation S Certificate..............................................20
Regulation S Global Note..............................................20
Regulation S Legend...................................................20
Regulation S Notes....................................................20
Related Person........................................................20
Responsible Officer...................................................20
Restricted Notes......................................................21
Restricted Notes Certificate..........................................21
Restricted Notes Legend...............................................21
Restricted Period.....................................................21
Restricted Subsidiary.................................................21
Rule 144..............................................................21
Rule 144A.............................................................21
Rule 144A Notes.......................................................21
S&P...................................................................21
Securities Act........................................................21
Security Register.....................................................21
Senior Bank Facility..................................................21
Senior Debt...........................................................22
Shelf Registration Statement..........................................22
Special Interest Payments.............................................22
Special Record Date...................................................22
Stated Maturity.......................................................22
Subordinated Debt.....................................................22
Subsidiary............................................................23
Successor Note........................................................24
Temporary Cash Investments............................................24
Trust Indenture Act...................................................25
Trustee...............................................................25
U.S. Person...........................................................25
Vice President........................................................26
Voting Stock..........................................................26
Wholly Owned Restricted Subsidiary....................................26
SECTION 102. Compliance Certificates and Opinions...........................26
SECTION 103. Form of Documents Delivered to Trustee.........................27
SECTION 104. Acts of Holders; Record Date...................................28
SECTION 105. Notices, Etc., to Trustee and Company..........................29
SECTION 106. Notice to Holders; Waiver......................................30
SECTION 107. Conflict with Trust Indenture Act..............................30
SECTION 108. Effect of Headings and Table of
Contents.....................................................31
SECTION 109. Successors and Assigns.........................................31
SECTION 110. Separability Clause............................................31
SECTION 111. Benefits of Indenture..........................................31
SECTION 112. Governing Law..................................................31
SECTION 113. Legal Holidays.................................................31
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule
144A and Regulation S Notes..................................32
SECTION 202. Form of Face of Note...........................................33
SECTION 203. Form of Reverse of Note........................................37
SECTION 204. Form of Trustee's Certificate of
Authentication...............................................42
ARTICLE THREE
The Notes
SECTION 301. Title and Terms................................................43
SECTION 302. Denominations..................................................44
SECTION 303. Execution, Authentication, Delivery
and Dating...................................................44
SECTION 304. Temporary Notes................................................45
SECTION 305. Global Notes...................................................46
SECTION 306. Registration, Registration of Transfer
and Exchange Generally; Restrictions on
Transfer and Exchange; Securities Act
Legends......................................................48
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Notes.................................................52
SECTION 308. Payment of Interest; Interest
Rights Preserved.............................................53
SECTION 309. Persons Deemed Owners..........................................54
SECTION 310. Cancellation...................................................55
SECTION 311. Computation of Interest........................................55
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture....................................................56
SECTION 402. Application of Trust Money.....................................57
ARTICLE FIVE
Remedies
SECTION 501. Events of Default..............................................58
SECTION 502. Acceleration of Maturity; Rescission
and Annulment................................................60
SECTION 503. Collection of Indebtedness and Suits...........................62
SECTION 504. Trustee May File Proofs of Claim...............................63
SECTION 505. Trustee May Enforce Claims.....................................63
SECTION 506. Application of Money Collected.................................64
SECTION 507. Limitation on Suits............................................64
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest.....................................................65
SECTION 509. Restoration of Rights and Remedies.............................65
SECTION 510. Rights and Remedies Cumulative.................................66
SECTION 511. Delay or Omission Not Waiver...................................66
SECTION 512. Control by Holders.............................................66
SECTION 513. Waiver of Past Defaults........................................67
SECTION 514. Undertaking for Costs..........................................67
SECTION 515. Waiver of Stay or Extension Laws...............................67
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities............................68
SECTION 602. Notice of Defaults.............................................68
SECTION 603. Certain Rights of Trustee......................................69
SECTION 604. Not Responsible for Recitals
or Issuance of Notes.........................................70
SECTION 605. May Hold Notes.................................................70
SECTION 606. Money Held in Trust............................................71
SECTION 607. Compensation and Reimbursement.................................71
SECTION 608. Disqualification; Conflicting
Interests....................................................72
SECTION 609. Corporate Trustee Required;
Eligibility..................................................72
SECTION 610. Resignation and Removal;
Appointment of Successor.....................................72
SECTION 611. Acceptance of Appointment by
Successor....................................................74
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business....................................74
SECTION 613. Preferential Collection
of Claims Against Company....................................75
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders...............................75
SECTION 702. Preservation of Information;
Communications to Holders....................................75
SECTION 703. Reports by Trustee.............................................76
SECTION 704. Reports by Company.............................................76
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates.....................................77
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets..............................................77
SECTION 802. Successor Substituted..........................................78
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders...................................78
SECTION 902. Supplemental Indentures
with Consent of Holders......................................79
SECTION 903. Execution of Supplemental
Indentures...................................................80
SECTION 904. Effect of Supplemental Indentures..............................81
SECTION 905. Conformity with Trust Indenture Act............................81
SECTION 906. Reference in Notes to
Supplemental Indentures......................................81
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest.....................................................81
SECTION 1002. Maintenance of Office or Agency................................82
SECTION 1003. Money for Note.................................................82
SECTION 1004. Existence......................................................84
SECTION 1005. Maintenance of Properties......................................84
SECTION 1006. Payment of Taxes and Other Claims..............................84
SECTION 1007. Maintenance of Insurance.......................................85
SECTION 1008. Limitation on Consolidated Debt................................85
SECTION 1009. Limitation on Senior Subordinated
Debt.........................................................88
SECTION 1010. Limitation on Issuance of Guarantees
of Subordinated Debt.........................................88
SECTION 1011. Limitation on Liens............................................88
SECTION 1012. Limitation on Restricted Payments..............................91
SECTION 1013. Limitations on Dividend and Other
Payment Restrictions Affecting
Subsidiaries ..............................................93
SECTION 1014. Limitation on Asset Disposition................................94
SECTION 1015. Transactions with Affiliates
and Related Persons..........................................95
SECTION 1016. Change of Control..............................................96
SECTION 1017. Provision of Financial Information.............................97
SECTION 1018. Unrestricted Subsidiaries......................................97
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates......................................98
SECTION 1020. Waiver of Certain Covenants....................................99
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption............................................99
SECTION 1102. Applicability of Article......................................100
SECTION 1103. Election to Redeem; Notice to
Trustee.....................................................100
SECTION 1104. Selection by Trustee of Notes to Be
Redeemed....................................................100
SECTION 1105. Notice of Redemption..........................................101
SECTION 1106. Deposit of Redemption Price...................................102
SECTION 1107. Notes Payable on Redemption Date..............................102
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt..............................103
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc............................................103
SECTION 1203. No Payment When Senior Debt in
Default.....................................................105
SECTION 1204. Payment Permitted If No Default...............................107
SECTION 1205. Subrogation to Rights of Holders of
Senior Debt.................................................107
SECTION 1206. Provisions Solely to Define Relative
Rights......................................................107
SECTION 1207. Trustee to Effectuate Subordination...........................108
SECTION 1208. No Waiver of Subordination
Provisions..................................................108
SECTION 1209. Notice to Trustee.............................................109
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent............................109
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt.................................................110
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights......................................................110
SECTION 1213. Article Applicable to Paying Agents...........................110
SECTION 1214. Defeasance of This Article Twelve.............................111
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect
Defeasance or Covenant Defeasance.........................111
SECTION 1302. Defeasance and Discharge......................................111
SECTION 1303. Covenant Defeasance...........................................112
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance.........................................112
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions..............................115
SECTION 1306. Reinstatement.................................................116
TESTIMONIUM.................................................................117
SIGNATURES AND SEALS........................................................117
ACKNOWLEDGMENTS.............................................................118
ANNEX A Form of Regulation S Certificate....................... A-1
ANNEX B Form of Restricted Securities
Certificate........................................... B-1
ANNEX C Form of Unrestricted Securities
Certificate........................................... C-1
SCHEDULE I Use of proceeds........................................ SI-1
SCHEDULE II Certain agreements..................................... SI-2
INDENTURE, dated as of August 5, 1998, between Loews Cineplex
Entertainment Corporation, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), having its
principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Bankers Trust Company, a New York banking corporation, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
8 7/8% Senior Subordinated Notes due 2008 (the "Notes") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary (i) to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by
the Company, the valid obligations of the Company, and (ii) to make this
Indenture a valid agreement of the Company, all in accordance with their
respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles (whether or not such is indicated herein), and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted as consistently applied by the Company at
the date of such computation;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Acquired Debt" of any particular Person means Debt of any other
Person existing at the time such other Person merged with or into or became
a Subsidiary of such particular Person or assumed by such particular Person
in connection with the acquisition of assets from any other Person, and not
Incurred by such other Person in connection with, or in contemplation of,
such other Person merging with or into such particular Person or becoming a
Subsidiary of such particular Person or such acquisition.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the
rules and procedures of the Depositary for such Note, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect
at the time of such transfer or transaction.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including any issuance or sale by a Restricted Subsidiary of
Capital Stock of such Restricted Subsidiary, and including a consolidation
or merger or other sale of any such Restricted Subsidiary with, into or to
another Person in a transaction in which such Restricted Subsidiary ceases
to be a Restricted Subsidiary, but excluding a disposition by a Restricted
Subsidiary of such Person to such Person or a Wholly Owned Restricted
Subsidiary of such Person or by such Person to a Wholly Owned Restricted
Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Restricted
Subsidiary of such Person, (ii) substantially all of the assets of such
Person or any of its Restricted Subsidiaries representing a division or
line of business or (iii) other assets or rights of such Person or any of
its Restricted Subsidiaries outside of the ordinary course of business,
provided in each case that the aggregate consideration for such transfer,
conveyance, sale, lease or other disposition is equal to $2.0 million or
more. The term "Asset Disposition" shall not include (i) any sale and
leaseback of Qualifying Theater Assets effected at fair market value, and
(ii) any swap or exchange of Qualifying Theater Assets of the Company or
its Subsidiaries for Qualifying Theater Assets of another Person, provided
that if the fair market value of the assets exchanged by the Company or its
Subsidiary exceeds the fair market value of the assets to be received, in
each case as determined in good faith by the Board of Directors of the
Company, such excess shall be subject to Section 1014 hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York,
New York or in the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital
lease or a liability on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
The principal amount of such obligation shall be the capitalized amount
thereof that would appear on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof having maturities of not more than
one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any domestic commercial bank of recognized standing having
capital and surplus in excess of $500 million, with maturities of not more
than one year from the date of acquisition, (iii) repurchase obligations
issued by any bank described in clause (ii) above with a term not to exceed
30 days; (iv) commercial paper rated at least A-1 or the equivalent thereof
by S&P or at least P-1 or the equivalent thereof by Moody's, in each case
maturing within one year after the date of acquisition and (v) shares of
any money market mutual fund, or similar fund, in each case having excess
of $500 million, which invests predominantly in investments of the types
describes in clauses (i) through (iv) above.
"Cedel" means Cedel, S.A. (or any successor securities clearing
agency).
"Closing Date" means August 5, 1998.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the
Trustee.
"Consolidated Cash Flow Available for Fixed Charges" for any
period means the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period increased by the sum of (i) Consolidated
Interest Expense of the Company and its Restricted Subsidiaries for such
period, plus (ii) Consolidated Income Tax Expense of the Company and its
Restricted Subsidiaries for such period, plus (iii) the consolidated
depreciation and amortization expense included in the income statement of
the Company and its Restricted Subsidiaries for such period, plus (iv) all
other non-cash items reducing Consolidated Net Income of the Company and
its Restricted Subsidiaries, less all non-cash items increasing
Consolidated Net Income of the Company and its Restricted Subsidiaries;
provided, however, that there shall be excluded therefrom the Consolidated
Cash Flow Available for Fixed Charges (if positive) of any Restricted
Subsidiary of the Company (calculated separately for such Restricted
Subsidiary in the same manner as provided above for the Company) that is
subject to a restriction which prevents the payment of dividends or the
making of distributions to the Company or another Restricted Subsidiary of
the Company to the extent of such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any date of
determination means the ratio of (i) Consolidated Cash Flow Available for
Fixed Charges of the Company and its Restricted Subsidiaries for the period
of the most recently completed four consecutive fiscal quarters for which
quarterly or annual financial statements are available to (ii) Consolidated
Fixed Charges of the Company and its Restricted Subsidiaries for such
period; provided, however, that Consolidated Fixed Charges shall be
adjusted to give effect on a pro forma basis to any Debt that has been
Incurred by the Company or any Restricted Subsidiary since the beginning of
such period that remains outstanding and to any Debt that is proposed to be
Incurred by the Company or any Restricted Subsidiary as if in each case
such Debt had been Incurred on the first day of such period and as if any
Debt that (i) is or will no longer be outstanding as the result of the
Incurrence of any such Debt or (ii) had been repaid or retired during such
period had not been outstanding as of the first day of such period;
provided, however, that in making such computation, the Consolidated
Interest Expense of the Company and its Restricted Subsidiaries
attributable to interest on any proposed Debt bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on the
date of computation had been the applicable rate for the entire period; and
provided further that, in the event the Company or any of its Restricted
Subsidiaries has made Asset Dispositions or acquisitions of assets not in
the ordinary course of business (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) during or after such
period, such computation shall be made on a pro forma basis as if the Asset
Dispositions or acquisitions had taken place on the first day of such
period.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such
period calculated in accordance with generally accepted accounting
principles.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in
accordance with generally accepted accounting principles, including without
limitation or duplication (or, to the extent not so included, with the
addition of), (i) the amortization of Debt discounts; (ii) any commissions,
fees or other payments (except reimbursement payments) with respect to
letters of credit, bankers' acceptances or similar facilities; (iii) fees
with respect to interest rate swap or similar agreements or foreign
currency hedge, exchange or similar agreements; (iv) Preferred Stock
dividends of Restricted Subsidiaries of the Company (other than with
respect to Redeemable Stock) declared and paid or payable to persons other
than the Company or any Restricted Subsidiary; (v) accrued Redeemable Stock
dividends of the Company and its Restricted Subsidiaries payable to Persons
other than the Company or any Restricted Subsidiary, whether or not
declared or paid; (vi) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries; and (vii) the portion of any rental obligation
allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated
net income (or loss) of the Company and its Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) the net income (or loss) of any Person acquired by the
Company or a Restricted Subsidiary of the Company in a pooling-of-interests
transaction for any period prior to the date of such transaction, (b) the
net income (or loss) of any Person that is not a Subsidiary of the Company
except to the extent of the amount of dividends or other distributions
actually paid to the Company or a Subsidiary of the Company by such Person
during such period, (c) gains or losses on Asset Dispositions by the
Company or its Restricted Subsidiaries, (d) all extraordinary gains and
extraordinary losses, (e) the cumulative effect of changes in accounting
principles, (f) non-recurring and other one-time non-operating expenses and
(g) the tax effect of any of the items described in clauses (a) through (f)
above; provided, further, that for purposes of any determination pursuant
to the provisions described under Section 1012 hereof, there shall further
be excluded therefrom the net income (but not net loss) of any Restricted
Subsidiary of the Company that is subject to a restriction which prevents
the payment of dividends or the making of distributions to the Company or
another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with
respect to the Company, adjustments following the date of this Indenture to
the accounting books and records of the Company in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise resulting from the acquisition of control of the
Company by another Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person means, as of any
date, the amount which, in accordance with GAAP, would be set forth under
the caption "Total Assets" (or any like caption) on a consolidated balance
sheet of such Person and its Restricted Subsidiaries, less all intangible
assets, including, without limitation, goodwill, organization costs,
patents, trademarks, copyrights, franchises, and research and development
costs.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which is, at the date as of which this Indenture is dated,
located at Four Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust and Agency Group or at any other time at such
other address as the Trustee may designate from time to time by notice to
all Holders of the Notes.
"Corporation" means a corporation, association, company,
joint-stock company, partnership or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets or
businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services
(including securities repurchase agreements but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business
which are not overdue or which are being contested in good faith), (v)
every Capital Lease Obligation of such Person, (vi) all Receivables Sales
of such Person, together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or
other amounts in connection therewith, (vii) all Redeemable Stock issued by
such Person, (viii) Preferred Stock of Restricted Subsidiaries of such
Person held by Persons other than such Person or one of its Wholly Owned
Restricted Subsidiaries, (ix) every obligation under Interest Rate,
Currency or Commodity Price Agreements of such Person and (x) every
obligation of the type referred to in clauses (i) through (ix) of another
Person and all dividends of another Person the payment of which, in either
case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise. The "amount" or "principal
amount" of Debt at any time of determination as used herein represented by
(a) any Receivables Sale, shall be the amount of the unrecovered capital or
principal investment of the purchaser (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company) thereof, excluding amounts
representative of yield or interest earned on such investment, (b) any
Redeemable Stock, shall be the maximum fixed redemption or repurchase price
in respect thereof and (c) any Permitted Interest Rate, Currency or
Commodity Price Agreements shall be zero.
"Depositary" means, with respect to any Notes, a clearing agency
that is registered as such under the Exchange Act and is designated by the
Company to act as Depositary for such Notes (or any successor securities
clearing agency so registered).
"Designated Senior Debt" shall mean (i) the obligations of the
Company under the Senior Bank Facility and (ii) any other Senior Debt of
the Company permitted under the Indenture the principal amount of which at
original issuance is $25.0 million or more and that has been designated by
the Company as Designated Senior Debt.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange and Registration Rights Agreement" means the Exchange
and Registration Rights Agreement, dated as of August 5, 1998, among the
Company, Xxxxxxx, Xxxxx & Co., as representatives of the Initial
Purchasers, and the Holders from time to time as provided therein, as such
agreement may be amended from time to time.
"Exchange Offer" means an offer made by the Company pursuant to
the Exchange and Registration Rights Agreement under the effective
registration statement under the Securities Act to exchange securities
substantially identical to Outstanding Notes (except for the differences
provided for herein) for Outstanding Notes.
"Exchange Registration Statement" means a registration statement
of the Company under the Securities Act registering Exchange Notes for
distribution pursuant to the Exchange Offer.
"Exchange Act" refers to the Securities Exchange Act of 1934 as
it may be amended and any successor act thereto.
"Exchange Notes" means the Notes issued pursuant to the Exchange
Offer and their Successor Notes.
"Global Note" means a Note that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
of such Debt, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and
"Guarantor" shall have meanings correlative to the foregoing); provided,
however, that the Guarantee by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary
course of business.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or
other obligation or the recording, as required pursuant to generally
accepted accounting principles or otherwise, of any such Debt or other
obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to
the foregoing); provided, however, that a change in generally accepted
accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Initial Purchasers" means Xxxxxxx, Sachs & Co., BT Alex. Xxxxx
Incorporated, Credit Suisse First Boston Corporation and Salomon Brothers
Inc, as purchasers of the Notes from the Company pursuant to the Note
Purchase Agreement.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate, Currency or Commodity Price Agreement" of any
Person means any forward contract, futures contract, swap, option or other
financial agreement or arrangement (including, without limitation, caps,
floors, collars and similar agreements) relating to, or the value of which
is dependent upon, interest rates, currency exchange rates or commodity
prices or indices (excluding contracts for the purchase or sale of goods in
the ordinary course of business).
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities
or evidence of Debt issued by, any other Person, including any payment on a
Guarantee of any obligation of such other Person.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables
Sale, deposit arrangement, security interest, lien, charge, easement (other
than any easement not materially impairing usefulness or marketability),
encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moodys" means Xxxxx'x Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to such
properties or assets) therefrom by such Person, net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses
Incurred and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Restricted
Subsidiaries on any Debt which is secured by such assets in accordance with
the terms of any Lien upon or with respect to such assets or which must by
the terms of such Lien, or in order to obtain a necessary consent to such
Asset Disposition or by applicable law, be repaid out of the proceeds from
such Asset Disposition, (iii) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition and (iv) appropriate
amounts to be provided by such Person or any Restricted Subsidiary thereof,
as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets
and retained by such Person or any Restricted Subsidiary thereof, as the
case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, in each
case as determined by the Board of Directors, in its reasonable good faith
judgment evidenced by a resolution of the Board of Directors filed with the
Trustee; provided, however, that any reduction in such reserve following
the consummation of such Asset Disposition will be treated for all purposes
of the Indenture and the Notes as a new Asset Disposition at the time of
such reduction with Net Available Proceeds equal to the amount of such
reduction.
"Note Purchase Agreement" means the Purchase Agreement, dated as
of July 31, 1998, between the Company and the Initial Purchasers, as such
agreement may be amended from time to time.
"Notes" means notes designated in the first paragraph of the
RECITALS OF THE COMPANY and includes the Exchange Notes.
"Offer to Purchase" means a written offer (the "Offer") sent by
the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Note Register on the date of the Offer offering to
purchase up to the principal amount of Notes specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law, not
less than 30 days or more than 60 days after the date of such Offer and a
settlement date (the "Purchase Date") for purchase of Notes within five
Business Days after the Expiration Date. The Company shall notify the
Trustee at least 15 Business Days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by
the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain a description of the
events requiring the Company to make the Offer to Purchase and any other
information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due
and payable upon each Note accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Note being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to withdraw all or any portion
of Notes tendered if the Company (or their Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder tendered, the
certificate number of the Note the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Notes and (b) if Notes in an aggregate principal amount in excess of
the Purchase Amount are tendered and not withdrawn pursuant to the
Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Notes in denominations of $1,000 or integral multiples thereof shall
be purchased); and
(12) that in the case of any Holder whose Note is purchased only
in part, the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service charge, a new
Note or Notes, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for
the unpurchased portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Original Notes" means all Notes other than Exchange Notes.
"Outstanding", when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Notes; provided that, if such Notes 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; and
(iii) Notes which have been transferred pursuant to Section 306
or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned
by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of 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 Notes which the Trustee knows to
be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Company or any other obligor
upon the Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Notes on behalf
of the Company.
"Permitted Holder" means each of Sony Pictures Entertainment Inc.
and Universal Studios, Inc. and their respective Affiliates.
"Permitted Interest Rate, Currency or Commodity Price Agreement"
of any Person means any Interest Rate, Currency or Commodity Price
Agreement entered into with one or more financial institutions in the
ordinary course of business that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates with respect to
Debt Incurred and which shall have a notional amount no greater than the
payments due with respect to the Debt being hedged thereby, or in the case
of currency or commodity protection agreements, against currency exchange
rate or commodity price fluctuations in the ordinary course of business
relating to then existing financial obligations or then existing or sold
production and not for purposes of speculation.
"Permitted Investments" means (i) an Investment in the Company or
a Restricted Subsidiary of the Company; (ii) an Investment in a Person, if
such Person or a Subsidiary of such Person will, as a result of the making
of such Investment and all other contemporaneous related transactions,
become a Restricted Subsidiary of the Company or be merged or consolidated
with or into transfer or convey all or substantially all its assets to the
Company or a Restricted Subsidiary of the Company; (iii) a Temporary Cash
Investment; (iv) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses in accordance with generally accepted accounting principles; (v)
stock, obligations or securities received in settlement of debts owing to
the Company or a Restricted Subsidiary of the Company as a result of
bankruptcy or insolvency proceedings or upon the foreclosure, perfection,
enforcement or agreement in lieu of foreclosure of any Lien in favor of the
Company or a Restricted Subsidiary of the Company; (vi) refundable
construction advances made with respect to the construction of properties
of a nature or type that are used in a business or similar or related to
the business of the Company or its Restricted Subsidiaries in the ordinary
course of business; (vii) advances or extensions of credit on terms
customary in the industry in the form of accounts or other receivables
incurred, or pre-paid film rentals, and loans and advances made in
settlement of such accounts receivable, all in the ordinary course of
business; (viii) Investments in the Notes; (ix) any consolidation or merger
of a Wholly-Owned Restricted Subsidiary of the Company to the extent
otherwise permitted under the Indenture; (x) Investments in Permitted
Interest Rate Currency or Commodity Price Agreements; (xi) entry into and
Investments in joint ventures, partnerships and other Persons engaged or
proposing to engage in the indoor motion picture exhibition business,
provided that the amount of such Investment, valued at the time made,
together with all Investments previously made pursuant to this clause (xi),
valued at the respective times made, shall not exceed 10% of the
Consolidated Tangible Assets of the Company as of the last day of the full
fiscal quarter ending immediately prior to the date of such Investment; and
(xii) other Investments not to exceed $20.0 million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" of any Person means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to
the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective
registration statement under the Securities Act.
"Qualifying Theater Assets" means all motion picture theaters
(whether owned in fee or leased), all other motion picture theater assets,
including, without limitation, theater furniture and fixtures, all real
property acquired for the purpose of motion picture theater development or
construction, and joint venture interests or partnership interests in
Persons owning, leasing, developing or constructing motion picture theaters
or principally engaged in the business of exhibiting motion pictures.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money.
"Receivables Sale" of any Person means any sale of Receivables of
such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person
relating thereto or a disposition of defaulted Receivables for purposes of
collection and not as a financing arrangement.
"Redeemable Stock" of any Person means any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon
the occurrence of an event) matures or is required to be redeemed (pursuant
to any sinking fund obligation or otherwise) or is convertible into or
exchangeable for Debt or is redeemable at the option of the holder thereof,
in whole or in part, at any time prior to the final Stated Maturity of the
Notes; provided that "Redeemable Stock" shall not include any Capital Stock
that is payable at maturity, or upon required redemption or redemption at
the option of the holder thereof, or that is automatically convertible or
exchangeable, solely in or into Common Stock of such Person.
"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Default" means the occurrence of any of the
following events: (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which
such registration statement is required to be filed pursuant to the
Exchange and Registration Rights Agreement, (ii) the Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective under
the requirements of the Exchange and Registration Rights Agreement or (iii)
the Exchange Offer has not been consummated within 30 Business Days after
the initial effective date of the Exchange Registration Statement relating
to the Exchange Offer (if the Exchange Offer is then required to be made
under the Exchange and Registration Rights Agreement) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required to be filed
pursuant the Exchange and Registration Rights Agreement is filed and
declared effective but shall thereafter either be withdrawn by the Company
or shall become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without
being succeeded immediately by an additional registration statement filed
and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in
the form set forth in Annex A.
"Regulation S Global Note" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form of
the legend required in the form of Note set forth in Section 202 to be
placed upon Regulation S Notes.
"Regulation S Notes" means all Notes required pursuant to Section
306(c) to bear a Regulation S Legend.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the Outstanding Common Stock of such
Person (or in the case of a Person that is not a corporation, 5% or more of
the equity interest in such Person) or (b) 5% or more of the combined
voting power of the Voting Stock of such Person.
"Responsible Officer" means when used with respect to the Trustee
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary
Treasurer or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Restricted Notes" means all Notes required pursuant to Section
306(c) to bear a Restricted Notes Legend. Such term includes the Restricted
Global Notes.
"Restricted Notes Certificate" means a certificate substantially
in for form set forth in Annex B.
"Restricted Notes Legend" means a legend substantially in the
form of the legend required in the form of Note set forth in Section 202 to
be placed upon a Restricted Note.
"Restricted Period" means the period of 40 consecutive days
beginning on the later of (i) the day on which Notes are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the Closing Date.
"Restricted Subsidiary" means any Subsidiary, whether existing on
or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means the Notes purchased by the Initial
Purchasers from the Company pursuant to the Note Purchase Agreement, other
than the Regulation S Notes.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Securities Act" means the Securities Act of 1933, as it may be
amended and any successor act thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306(a).
"Senior Bank Facility" means the Credit Agreement, dated as of
May 14, 1998, among the Company, as borrower, the lenders listed therein,
as lenders, Bankers Trust Company, as administrative agent and
co-syndication agent and Bank of America NT&SA, The Bank of New York and
Credit Suisse First Boston, as co-syndication agents, as it may be amended
or restated from time to time, and any renewal, extension, refinancing,
refunding or replacement thereof.
"Senior Debt" means (i) the principal of (and premium, if any)
and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company
whether or not such claim for post-petition interest is allowed in such
proceeding) on, and penalties and any obligation of the Company for
reimbursement, indemnities and fees relating to, the Senior Bank Facility,
(ii) the principal of (and premium, if any) and interest on Debt of the
Company for money borrowed, whether Incurred on or prior to the date of
original issuance of the Notes or thereafter, and any amendments, renewals,
extensions, modifications, refinancings and refundings of any such Debt and
(iii) Permitted Interest Rate Agreements and Permitted Currency Agreements
entered into with respect to Debt described in clauses (i) and (ii) above;
provided, however, that the following shall not constitute Senior Debt: (1)
any Debt as to which the terms of the instrument creating or evidencing the
same provide that such Debt is not superior in right of payment to the
Notes, (2) any Debt which is subordinated in right of payment in any
respect to any other Debt of the Company, (3) Debt evidenced by the Notes,
(4) any Debt owed to a Person when such Person is a Subsidiary of the
Company, (5) any obligation of the Company arising from Redeemable Stock of
the Company, (6) that portion of any Debt which is Incurred in violation of
the Indenture and (7) Debt which, when Incurred and without respect to any
election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without
recourse to the Company.
"Shelf Registration Statement" means a shelf registration
statement under the Securities Act filed by the Company, if required by,
and meeting the requirements of, the Exchange and Registration Rights
Agreement, registering Original Notes for resale.
"Special Interest Payments" has the meaning specified in the form
of Notes set forth in Section 202.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as
the fixed date on which the principal of such Note or such installment of
interest is due and payable.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other
payment obligations in respect of such Debt shall be subordinate to the
prior payment in full of the Notes to at least the following extent: (i) no
payments of principal of (or premium, if any) or interest on or otherwise
due in respect of such Debt may be permitted for so long as any default in
the payment of principal (or premium, if any) or interest on the Notes
exists; (ii) in the event that any other default that with the passing of
time or the giving of notice, or both, would constitute an event of default
exists with respect to the Notes, upon notice by 25% or more in principal
amount of the Notes to the Trustee, the Trustee shall have the right to
give notice to the Company and the holders of such Debt (or trustees or
agents therefor) of a payment blockage, and thereafter no payments of
principal of (or premium, if any) or interest on or otherwise due in
respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of
principal of such Debt at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each
case prior to the final Stated Maturity of the Notes or (y) permit
redemption or other retirement (including pursuant to an offer to purchase
made by the Company) of such other Debt at the option of the holder thereof
prior to the final Stated Maturity of the Notes, other than a redemption or
other retirement at the option of the holder of such Debt (including
pursuant to an offer to purchase made by the Company) which is conditioned
upon a change of control of the Company pursuant to provisions
substantially similar to those contained in Section 1016 hereof (and which
shall provide that such Debt will not be repurchased pursuant to such
provisions prior to the Company's repurchase of the Notes required to be
repurchased by the Company pursuant to the provisions described under
Section 1016).
"Subsidiary" of any Person means (i) a corporation more than 50%
of the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, has at
least a majority ownership and power to direct the policies, management and
affairs thereof.
"Successor Note" of any particular Note means every Note issued
after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment in the
following kinds of instruments: (A) readily marketable obligations issued
or unconditionally guaranteed as to principal and interest by the United
States of America or by any agency or authority controlled or supervised by
and acting as an instrumentality of the United States of America if, on the
date of purchase or other acquisition of any such instrument by the Company
or any Restricted Subsidiary of the Company, the remaining term to maturity
or interest rate adjustment is not more than two years; (B) obligations
(including, but not limited to, demand or time deposits, bankers'
acceptances and certificates of deposit) issued or guaranteed by a
depository institution or trust company incorporated under the laws of the
United States of America, any state thereof or the District of Columbia,
provided that (1) such instrument has a final maturity not more than one
year from the date of purchase thereof by the Company or any Restricted
Subsidiary of the Company and (2) such depository institution or trust
company has at the time of the Company's or such Restricted Subsidiary's
Investment therein or contractual commitment providing for such Investment,
(x) capital, surplus and undivided profits (as of the date such
institution's most recently published financial statements) in excess of
$100 million and (y) the long-term unsecured debt obligations (other than
such obligations rated on the basis of the credit of a Person other than
such institution) of such institution, at the time of the Company's or such
Restricted Subsidiary's Investment therein or contractual commitment
providing for such Investment, are rated in the highest rating category of
both S&P and Moodys; (C) commercial paper issued by any corporation, if
such commercial paper has, at the time of the Company's or any Restricted
Subsidiary's Investment therein or contractual commitment providing for
such Investment credit ratings of at least A-1 by S&P and P-1 by Moody's;
(D) money market mutual or similar funds having assets in excess of $100
million; (E) readily marketable debt obligations issued by any corporation,
if at the time of the Company's or Restricted Subsidiary's Investment
therein or contractual commitment providing for such Investment (1) the
remaining term to maturity is not more than two years and (2) such debt
obligations are rated in one of the two highest rating categories of both
S&P and Moody's; (F) demand or time deposit accounts used in the ordinary
course of business with commercial banks the balances in which are at all
times fully insured as to principal and interest by the Federal Deposit
Insurance Corporation or any successor thereto; and (G) to the extent not
otherwise included herein, Cash Equivalents. In the event that either S&P
or Moody's ceases to publish ratings of the type provided herein, a
replacement rating agency shall be selected by the Company with the consent
of the Trustee, and in each case the rating of such replacement rating
agency most nearly equivalent to the corresponding S&P or Xxxxx'x rating,
as the case may be, shall be used for purposes hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"U.S. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under
the laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign
law and of which at least one executor or administrator is a non-U.S.
Person who has sole or shared investment discretion with respect to its
assets), (iv) any trust of which any trustee is a U.S. Person (other than a
trust of which at least one trustee is a non-U.S. Person who has sole or
shared investment discretion with respect to its assets and no beneficiary
of the trust (and no settlor if the Trust is revocable) is a U.S. Person),
(v) any agency or branch of a foreign entity located in the United States,
(vi) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. Person, (vii) any discretionary or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other
than such an account held for the benefit or account of a non-U.S. Person),
(viii) any partnership or corporation organized or incorporated under the
laws of a foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities not registered under the Securities
Act (unless it is organized or incorporated, and owned, by accredited
investors within the meaning of Rule 501(a) under the Securities Act who
are not natural persons, estates or trusts); provided, however, that the
term "U.S. Person" does not include (A) a branch or agency of a U.S. Person
that is located and operating outside the United States for valid business
purposes as a locally regulated branch or agency engaged in the banking or
insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and
documentation of a foreign country and (C) the international organizations
set forth in Section 902(o)(7) of Regulation S under the Securities Act and
any other similar international organizations, and their agencies,
affiliates and pension plans.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock
or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person or by such Person and one or
more Wholly Owned Restricted Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Date.
----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any record
date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Note.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Group, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, that is required under such Act to be
part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be. Until such time as this Indenture shall be
qualified under the Trust Indenture Act, this Indenture, the Company and
the Trustee shall be deemed for all purposes hereof to be subject to and
governed by the Trust Indenture Act to the same extent as would be the case
if this Indenture were so qualified on the date hereof.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes 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 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Debt (subject to Article Twelve
hereof) and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Note shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Notes) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date, or
Purchase Date, or at the Stated Maturity, as the case may be, provided that
no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Purchase Date or Stated Maturity, as the
case may be.
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and
Regulation S Notes.
-----------------------------------------------
The Notes and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the
Notes.
The definitive Notes shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders
or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by
the officers executing such Notes, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes shall be issued in
the form of one or more Global Notes without interest coupons registered in
the name of DTC, as Depositary, or its nominee and deposited with the
Trustee, as custodian for DTC, in New York, New York, for credit by DTC to
the respective accounts of beneficial owners of the Notes represented
thereby (or such other accounts as they may direct). Such Global Notes,
together with their Successor Notes which are Global Notes other than the
Regulation S Global Note are collectively herein called the "Restricted
Global Note".
Upon their original issuance, Regulation S Notes shall be issued
in the form of one or more Global Notes without interest coupons registered
in the name of DTC, as Depositary, or its nominee and deposited with the
Trustee, as custodian for DTC, in New York, New York, for credit to Xxxxxx
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear, and Cedel to the respective accounts of beneficial owners of the
Notes represented thereby (or such other accounts as they may direct) in
accordance with the rules thereof.
Prior to the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Note may only be held through
Euroclear and Cedel (as indirect participants in DTC), unless such
interests are exchanged for corresponding interests in the Restricted
Global Note in accordance with Section 306(b)(ii) hereof.
SECTION 202. Form of Face of Note.
--------------------
[IF THE NOTE IS A RESTRICTED NOTE, THEN INSERT -- THE NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT,(3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN
ACCORDANCE WITH ALL OTHER APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OF AMERICA AND OTHER JURISDICTIONS.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
THE ABOVE PARAGRAPH.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER
UNLESS THE REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS
ON TRANSFER SET FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE
INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND THE DEPOSITORY TRUST COMPANY IS
TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS NOTE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
[IF THE NOTE IS A REGULATION S NOTE, THEN INSERT -- THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS
THIS NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
8 7/8% SENIOR SUBORDINATED NOTES DUE 2008
[If Restricted Global Note - CUSIP No. 540423AAB]
[If Regulation S Global Note - ISIN No. 454098AA3]
No. __________ $________
Loews Cineplex Entertainment Corporation, a corporation duly
organized and existing under the laws of Delaware (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of
______________ Dollars (such amount the "principal amount" of this Note)
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- , or such other principal
amount (which, when taken together with the principal amounts of all other
Outstanding Notes, shall not exceed $300,000,000 in the aggregate at any
time) as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture,] on August 1, 2008 and to pay
interest thereon from August 5, 1998, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on February 1 and August 1 in each year, commencing February
1, 1999, at the rate of 8 7/8% per annum, until the principal hereof is paid
or made available for payment; provided that, if any Registration Default
occurs under the Exchange and Registration Rights Agreement, then the per
annum interest rate on this Note will increase for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect (at which time the interest rate will be reduced to
its initial rate) at a per annum rate of 0.5% for the first 90-day period
following the occurrence of such Registration Default, and by an additional
0.5% thereafter (up to a maximum of 1.0%), and provided, further, that any
amount of interest on this Note which is overdue shall bear interest (to
the extent that payment thereof shall be legally enforceable) at the rate
per annum then borne by this Note from the date such amount is due to the
day it is paid or made available for payment, and such overdue interest
shall be payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date [IF THE NOTE IS AN ORIGINAL NOTE, THEN INSERT --, provided that any
accrued and unpaid interest (including Special Interest Payments) on this
Note upon the issuance of an Exchange Note in exchange for this Note shall
cease to be payable to the Holder hereof and shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date]. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on the
relevant Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Interest on this
Note shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Note will be made at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York, maintained for
such purpose and at any other office or agency maintained by the Company
for such purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register; provided further
that all payments of the principal (and premium, if any) and interest on
Notes, the Holders of which have given wire transfer instructions to the
Company or its agent at least 10 Business Days prior to the applicable
payment date will be required to be made by wire transfer of immediately
available funds to the accounts specified by such Holders in such
instructions. Notwithstanding the foregoing, the final payment of principal
shall be payable only upon surrender of this Note to the Paying Agent.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
[SEAL]
By
--------------------------------------
Attest:
------------------------------
SECTION 203. Form of Reverse of Note.
-----------------------
This Note is one of a duly authorized issue of Notes of the
Company designated as its 8 7/8% Senior Subordinated Notes due 2008 (herein
called the "Notes"), limited in aggregate principal amount to $300,000,000,
issued and to be issued under an Indenture, dated as of August 5, 1998
(herein called the "Indenture", which term shall have the meaning assigned
to it in such instrument), among the Company, and Bankers Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms
upon which the Notes are, and are to be, authenticated and delivered.
The Notes will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after August 1, 2003 and
prior to maturity, upon not less than 30 nor more than 60 days' notice
mailed to each Holder of Notes to be redeemed at such Holder's address
appearing in the Note Register, in amounts of $1,000 or an integral
multiple of $1,000, at the following Redemption Prices (expressed as
percentages of the principal amount) plus accrued interest to but excluding
the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), if redeemed during the
12-month period beginning August 1 of the years indicated:
Year Redemption
---- Price
----------
2003.............................................. 104.437%
2004.............................................. 102.958%
2005.............................................. 101.479%
2006 and thereafter............................... 100.000%
In addition, if on or before August 1, 2001 the Company receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, the Company may, at its option, use an amount equal to all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33 1/3% of the original aggregate principal amount of the
Notes, provided, however, that Notes having a principal amount equal to at
least 66 2/3% of the original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must occur on a
Redemption Date within 90 days of such sale and upon not less than 30 or
more than 60 days' notice mailed to each Holder of Notes to be redeemed at
such Holder's address appearing in the Note Register, in amounts of $1,000
or an integral multiple of $1,000, at a redemption price of 108.875% of the
principal amount of the Notes plus accrued interest to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the
particular Notes to be redeemed or any portion thereof that is an integral
multiple of $1,000.
The Notes do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if
(i) certain Net Available Proceeds are available to the Company as a result
of Asset Dispositions or (ii) a Change of Control occurs, the Company shall
be required to make an Offer to Purchase for all or a specified portion of
the Notes.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Note in part only, a new Note or Notes of like tenor for
the unredeemed or unpurchased portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Note having been paid or discharged or
(ii) certain restrictive covenants and Events of Default with respect to
this Note having occurred, in each case upon compliance with certain
conditions set forth therein.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under
the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to the Notes, the Holders of not less than
25% in aggregate principal amount of the Notes at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of Notes at the time
Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by
the Holder of this Note for the enforcement of any payment of principal
hereof or any premium (if any) or interest hereon on or after the
respective due dates expressed herein (or, in the case of redemption, on or
after the Redemption Date or, in the case of any purchase of this Note
required to be made pursuant to an Offer to Purchase, on the Purchase
Date).
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Note at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of
New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 principal amount and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes (subject to the provisions hereof with
respect to determination of the Person to whom interest is payable),
whether or not this Note be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day
year of twelve 30-month days.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety
by the Company pursuant to Section 1014 or 1016 of the Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Note purchased
by the Company pursuant to Section 1014 or 1016 of the Indenture, state the
principal amount of this Note you want to elect to have so purchased by the
Company: $___________
Dated:___________________ Your Signature:_____________________________
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:______________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the Trustee
in addition to, or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
SECTION 204. Form of Trustee's Certificate of
Authentication.
--------------------------------
This is one of the Notes referred to in the within-mentioned
Indenture.
-----------------------------
as Trustee
By
---------------------------
Authorized Officer
ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $300,000,000
except for Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Notes pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant
to Sections 1014 and 1016.
The Notes shall be known and designated as the "8 7/8% Senior
Subordinated Notes due 2008" of the Company. Their Stated Maturity shall be
August 1, 2008 and they shall bear interest at the rate of 8 7/8% per annum,
from August 5, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually on February 1 and August 1, commencing February 1, 1999,
until the principal thereof is paid or made available for payment provided,
if any Registration Default occurs under the Exchange and Registration
Rights Agreement, then the per annum interest rate on the applicable Notes
will increase for the period from the occurrence of the Registration
Default Period until such time as no Registration Default is in effect (at
which time the interest rate will be reduced to its initial rate) by a per
annum rate of 0.50% for the first 90-day period following the occurrence of
such Registration Default, and by an additional 0.5% thereafter (up to a
maximum of 1.0%).
The principal of (and premium, if any) and interest on the Notes
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any
other office or agency maintained by the Company for such purpose;
provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto
as such address shall appear in the Note Register.
The Notes shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1014 and 1016.
The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article Twelve.
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
Unless the context otherwise requires, the Original Notes and the
Exchange Notes shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
-------------
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1000 and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery
and Dating.
-----------------------------------
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Notes may be manual or facsimile.
Notes 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 Notes
or did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Notes; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a registration
statement under the Securities Act with respect thereto, the Company may
deliver Exchange Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Exchange Notes and a like principal amount of Original
Notes for cancellation in accordance with this Indenture, and the Trustee
in accordance with the Company Order shall authenticate and deliver such
Notes. Prior to authenticating such Exchange Notes, and accepting any
additional responsibilities under this Indenture in relation to such Notes,
the Trustee shall be entitled to receive, if requested, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating in substance:
(a) that all conditions hereunder precedent to the authentication
and delivery of such Exchange Notes have been complied with and that
such Exchange Notes, when such Notes have been duly authenticated and
delivered by the Trustee (and subject to any other conditions
specified in such Opinion of Counsel), have been duly issued and
delivered and will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(b) that the issuance of the Exchange Notes in exchange for
Original Notes has been effected in compliance with the Securities
Act.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Notes.
---------------
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes, which Notes are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Notes may determine, as
evidenced by their execution thereof.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes, upon surrender of the temporary Notes at any office or agency of the
Company designated pursuant to Section 1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Global Notes.
------------
(a) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Note shall
constitute a single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and
no transfer of a Global Note in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Note or a
nominee thereof unless (i) such Depositary (A) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Note or (B) has ceased to be a clearing agency registered as such under the
Exchange Act, and in either case the Company fails to appoint a successor
Depositary, (ii) the Company executes and delivers to the Trustee a Company
Order stating that it elects to cause the issuance of the Notes in
certificated form and that all Global Notes shall be exchanged in whole for
Securities that are not Global Notes (in which case such exchange shall be
effected by the Trustee) or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Note.
(c) If any Global Note is to be exchanged for other Notes or
cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for
exchange or cancellation as provided in this Article Three. If any Global
Note is to be exchanged for other Notes or cancelled in part, or if another
Note is to be exchanged in whole or in part for a beneficial interest in
any Global Note, then either (i) such Global Note shall be so surrendered
for exchange or cancellation as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an amount equal
to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such other Note to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the records of the Trustee, as Security Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a
Global Note, the Trustee shall, subject to Section 306(c) and as otherwise
provided in this Article Three, authenticate and deliver any Notes issuable
in exchange for such Global Note (or any portion thereof) to or upon the
order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the
Trustee in connection with the occurrence of any of the events specified in
the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Notes that are not in the form of Global
Notes. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given
or made pursuant to this Article Three if such order, direction or request
is given or made in accordance with the Applicable Procedures.
(d) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Note,
unless such Note is registered in the name of a Person other than the
Depositary for such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Note, shall be the Holder of such Global Note for all purposes under
the Indenture and the Notes, and owners of beneficial interests in a Global
Note shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Note will be
shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its Agent
Members.
SECTION 306. Registration, Registration of Transfer and
Exchange Generally; Restrictions on Transfer
and Exchange; Securities Act Legends.
--------------------------------------------
(a) Registration, Registration of Transfer and Exchange
Generally. The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section
1002 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers and exchanges of Notes. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Notes and transfers and exchanges
of Notes as herein provided. Such Security Register shall distinguish
between Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an
office or agency of the Company designated pursuant to Section 1002 for
such purpose and provided that the other requirements of this Section 306
have been satisfied, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations, of a
like aggregate principal amount and bearing such restrictive legends as may
be required by this Indenture.
At the option of the Holder, and subject to the other provisions
of this Section 306, Notes may be exchanged for other Notes of any
authorized denominations, of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture upon
surrender of the Notes to be exchanged at any such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which
the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same
debt, and (except for the differences between Original Notes and Exchange
Notes provided for herein) entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Note Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Sections 303, 304, 305, 307, 906,
1014, 1016 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Note during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Notes selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of
or exchange any Note so selected for redemption, in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Notes, transfers and exchanges of Notes
and beneficial interests in a Global Note of the kinds specified in this
Section 306(b) shall be made only in accordance with this Section 306(b).
(i) Restricted Global Note to Regulation S Global Note. If the
owner of a beneficial interest in the Restricted Global Note wishes at
any time to transfer such interest to a Person who wishes to acquire
the same in the form of a beneficial interest in the Regulation S
Global Note (whether before or after the expiration of the Restricted
Period), such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (A) an order
given by the Depositary or its authorized representative directing
that a beneficial interest in the Regulation S Global Note in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Restricted Global Note
in an equal principal amount be debited from another specified Agent
Member's account and (B) a Regulation S Certificate, satisfactory to
the Trustee and duly executed by the owner of such beneficial interest
in the Restricted Global Note or his attorney duly authorized in
writing, then the Trustee, as Security Registrar shall reduce the
principal amount of the Restricted Global Note and increase the
principal amount of the Regulation S Global Note by such specified
principal amount as provided in Section 305(c).
(ii) Regulation S Global Note to Restricted Global Note. If the
owner of a beneficial interest in the Regulation S Global Note wishes
at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the
Restricted Global Note, such transfer may be effected only in
accordance with this Clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
an order given by the Depositary or its authorized representative
directing that a beneficial interest in the Restricted Global Note in
a specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Global Note
in an equal principal amount be debited from another specified Agent
Member's account and (B) if before the expiration of the Restricted
Period, a Restricted Notes Certificate, satisfactory to the Trustee
and duly executed by the owner of such beneficial interest in the
Regulation S Global Note or his attorney duly authorized in writing,
then the Trustee, as Security Registrar, shall reduce the principal
amount of the Regulation S Global Note and increase the principal
amount of the Restricted Global Note by such specified principal
amount as provided in Section 305(c).
(iii) Exchanges between Global Note and Non-Global Note. A
beneficial interest in a Global Note may be exchanged for a Note that
is not a Global Note as provided in Section 305, provided that, if
such interest is a beneficial interest in the Restricted Global Note,
or if such interest is a beneficial interest in the Regulation S
Global Note, then such interest shall be exchanged for a Restricted
Note (subject in each case to Section 306(c)).
(c) Securities Act Legends. Rule 144A Notes and their respective
Successor Notes shall bear a Restricted Notes Legend, and Regulation S
Notes and their Successor Notes shall bear a Regulation S Legend, subject
to the following:
(i) subject to the following Clauses of this Section 306(c), a
Note or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Note or any portion thereof shall bear the
Securities Act Legend borne by such Global Note while represented
thereby;
(ii) subject to the following Clauses of this Section 306(c), a
new Note which is not a Global Note and is issued in exchange for
another Note (including a Global Note) or any portion thereof, upon
transfer or otherwise, shall bear the Securities Act Legend borne by
such other Note, provided that, if such new Note is required
pursuant to Section 306(b)(iii) to be issued in the form of a
Restricted Note, it shall bear a Restricted Notes Legend and, if such
new Note is so required to be issued in the form of a Regulation S
Note, it shall bear a Regulation S Legend;
(iii) Exchange Notes shall not bear a Securities Act Legend;
(iv) at any time after the Notes may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new Note
which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Note (other than a Global Note) or any portion
thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, satisfactory to the Trustee and duly
executed by the Holder of such legended Note or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new
Note in exchange for or in lieu of such other Note as provided in this
Article Three;
(v) a new Note which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Note (other than a Global Note)
or any portion thereof which bears such a legend if, in the Company's
judgment, placing such a legend upon such new Note is not necessary to
ensure compliance with the registration requirements of the Securities
Act, and the Trustee, at the written direction of the Company, shall
authenticate and deliver such a new Note as provided in this Article
Three; and
(vi) notwithstanding the foregoing provisions of this Section
306(c), a Successor Note of a Note that does not bear a particular
form of Securities Act Legend shall not bear such form of legend
unless the Company has reasonable cause to believe that such Successor
Note is a "restricted security" within the meaning of Rule 144, in
which case the Trustee, at the written direction of the Company, shall
authenticate and deliver a new Note bearing a Restricted Notes Legend
in exchange for such Successor Note as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Notes.
------------------------------
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount, and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Note and (ii) such security or indemnity as may be required by either of
them to save each of them, and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such Note has
been acquired by a bona fide purchaser, the Company shall execute and upon
its written request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note 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) connected
therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes 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 Notes.
SECTION 308. Payment of Interest; Interest
Rights Preserved.
-----------------------------
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at
the close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such Holder, 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 Notes (or their respective
Predecessor Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company 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 Note Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at
the close of business 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 Notes may be listed, and upon such
notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Note.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 308) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Note in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Note in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or
its nominee), as a Holder, with respect to such Note in global form or
impair, as between such Depositary and owners of beneficial interests in
such Note in global form, the operation of customary practices governing
the exercise of the rights of such Depositary (or its nominee) as Holder of
such Note in global form.
SECTION 310. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 1014 or
1016 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. No Notes shall be authenticated in lieu
of or in exchange for any Notes canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Notes held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360 day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to
(i) rights of registration of transfer and exchange and the Company's right
of optional redemption, (ii) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payment
of principal and interest on the Notes, (iv) rights, obligations and
immunities of the Trustee under the Indenture and (v) rights of the Holders
of the Notes as beneficiaries of the Indenture with respect to any property
deposited with the Trustee payable to all or any of them), and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 307 and
(ii) Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant
to this Article Four, the obligations of the Company to the Trustee under
Section 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of
the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been
deposited with the Trustee but such money need not be separated from other
funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. 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 occasioned by the provisions of Article Twelve or be voluntary
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) failure to pay the principal of (or premium, if any, on) any
Note at its Maturity; or
(2) failure to pay any interest upon any Note when it becomes due
and payable, and continuance of such default for a period of 30 days;
or
(3) default, on the applicable Purchase Date, in the purchase of
Notes required to be purchased by the Company pursuant to an Offer to
Purchase as described in Section 1014 herein and Section 1016 herein
when due and payable; or
(4) failure to perform or comply with the provisions of Section
801; or
(5) failure to perform any other covenant or agreement of the
Company in this Indenture or the Notes (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 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 Outstanding Notes a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(6) default under the terms of any instrument evidencing or
securing Debt for money borrowed by the Company or any Restricted
Subsidiary having an outstanding principal amount of $15.0 million
individually or in the aggregate which default results in the
acceleration of the payment of such indebtedness or constitutes the
failure to pay such indebtedness at final maturity after expiration of
any applicable grace period; or
(7) a final judgment or judgments (not subject to appeal) for the
payment of money are entered against the Company or any Restricted
Subsidiary of the Company in an amount in excess of $15.0 million by a
court or courts of competent jurisdiction, which judgments remain
undischarged or unstayed for a period of 60 days after the date on
which the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any such Restricted Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or any such Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any such Restricted Subsidiary of any substantial
part of the property of the Company or any such Restricted Subsidiary,
or ordering the winding up or liquidation of the affairs of the
Company or any such Subsidiary, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary
of the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any such
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Restricted Subsidiary of the Company in
an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any Restricted Subsidiary of the Company, or
the filing by the Company or any such Restricted Subsidiary of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by the Company or
any such Restricted Subsidiary to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Restricted Subsidiary of the Company of any substantial
part of the property of the Company or any Restricted Subsidiary of
the Company, or the making by the Company or any Restricted Subsidiary
of the Company of an assignment for the benefit of creditors, or the
admission by the Company or any such Restricted Subsidiary in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any such Restricted
Subsidiary in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
------------------------------------
If an Event of Default (other than an Event of Default specified
in Section 501(8) or (9)) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes may declare all of the Notes to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
and any accrued interest, if any, shall become immediately due and payable;
provided, however, that so long as any Senior Debt under the Senior Bank
Facility is outstanding, any such acceleration shall not be effective until
the earlier of (a) five Business Days after Notice of such acceleration is
delivered to the Administrative Agent for the Senior Bank Facility and (b)
the acceleration of any Senior Debt under the Senior Bank Facility. If an
Event of Default specified in Section 501(8) or (9) occurs, the principal
and any accrued interest on the Notes then Outstanding shall ipso facto
become immediately due and payable without any declaration or other Act on
the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Outstanding
Notes, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes
which have become due otherwise than by such declaration of
acceleration (including any Notes required to have been purchased
on the Purchase Date pursuant to an Offer to Purchase made by the
Company) and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Notes,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Note
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof or, with respect
to any Note required to have been purchased pursuant to an Offer to
Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and 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 provided by the Notes, if any, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Notes 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 Notes, 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 effectual 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 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company or any
other obligor upon the Notes, or upon the property of the Company or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
607.
No provision of this Indenture 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 Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims
Without Possession of Notes.
---------------------------
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Notes in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the extent provided in Article Twelve, to the
holders of Senior Debt in accordance with Article Twelve; and
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes 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 Notes for
principal (and premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes 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;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) 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 Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest.
---------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 306) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the Redemption
Date or in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Note, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 307, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct in writing the time,
method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee,
provided that
(1) such written direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the
Notes waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (including any Note which is required to have
been purchased pursuant to an Offer to Purchase which has been made by
the Company), or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right
to convert any Note in accordance with Article Thirteen.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any 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 SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
Except during the continuance of an Event of Default, the duties
and responsibilities of the Trustee shall be as expressly provided for in
the Indenture. During the existence of an Event of Default, the Trustee
will exercise such rights and powers vested in it under the Indenture and
use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character
specified in Section 501(4), no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) 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, conclusively rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, 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 shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by it
hereunder;
(h) In the event that the Trustee is also acting as Paying Agent
or Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article Six shall also be afforded to such
Paying Agent or Registrar; and
(i) The Trustee shall not be charged with knowledge of any
Default or Event of Default unless either (i) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or
(ii) written notice of such Default or Event of Default shall be given
to the Trustee by the Company or any Holder.
SECTION 604. Not Responsible for Recitals
or Issuance of Notes.
----------------------------
The recitals contained herein and in the Notes except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Company of Notes or the
proceeds thereof.
SECTION 605. May Hold Notes.
--------------
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 606. 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 with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request 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 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
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (other than taxes based on 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 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 obligations of the Company under this Section 607 to
compensate the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall survive the discharge of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal;
Appointment of Successor.
------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under Section
611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in aggregate principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 514, any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in aggregate principal
amount of the Outstanding Notes delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a
bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of the retiring Trustee, any such
successor Trustee and the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Notes shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had
itself authenticated such Notes.
SECTION 613. Preferential Collection
of Claims Against Company.
-------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Note Registrar.
SECTION 702. Preservation of Information;
Communications to Holders.
----------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its capacity
as Note Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be provided by the
Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than June 30 in each
calendar year, commencing in June 1999.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Notes are listed, with the Commission and with the Company.
The Company will notify the Trustee in writing when the Notes are listed on
any stock exchange.
SECTION 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 30 days after the same is so required to be
filed with the Commission.
SECTION 705. Officers' Certificate with Respect to Change
in Interest Rates.
--------------------------------------------
Within five days after the day on which any Special Interest
begins accruing, and within five days after any Special Interest ceases to
accrue, the Company shall deliver an Officers' Certificate to the Trustee
stating the interest rate thereupon in effect for the Unregistered Notes
(if any are Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain Sales of Assets.
---------------------------------------------------
The Company shall not, in a single transaction or a series of
related transactions, (i) consolidate with or merge into any other Person
or permit any other Person to consolidate with or merge into the Company
and (ii) directly or indirectly, transfer, sell, lease or otherwise dispose
of all or substantially all of its assets unless: (1) in a transaction in
which the Company does not survive or in which the Company sells, leases or
otherwise disposes of all or substantially all of its assets, the successor
entity to the Company is organized under the laws of the United States of
America or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture executed and delivered to the
Trustee in form satisfactory to the Trustee, all of the Company's
obligations under the Indenture; (2) immediately before and after giving
effect to such transaction and treating any Debt which becomes an
obligation of the Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such Restricted
Subsidiary at the time of the transaction, no Event of Default or event
that with the passing of time or the giving of notice, or both, would
constitute an Event of Default shall have occurred and be continuing; (3)
immediately after giving effect to such transaction, the Consolidated Net
Worth of the Company (or other successor entity to the Company) is equal to
or greater than that of the Company immediately prior to the transaction;
(4) immediately after giving effect to such transaction and treating any
Debt which becomes an obligation of the Company or a Restricted Subsidiary
as a result of such transaction as having been Incurred by the Company or
such Restricted Subsidiary at the time of the transaction, the Company
(including any successor entity to the Company) could Incur at least $1.00
of additional Debt pursuant to the provisions of this Indenture described
in the first paragraph under Section 1008 hereof; and (5) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
(which Opinion of Counsel may rely, as to factual matters, on such
Officer's Certificate), each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture, complies with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with,
and, with respect to such Officer's Certificate, setting forth the manner
of determination of the Consolidated Net Worth and the ability to Incur
Debt in accordance with Clause (4) of Section 801, the Company or, if
applicable, of the Successor Company as required pursuant to the foregoing.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or
other disposition of all or substantially all of the properties and assets
of the Company as an entirety in accordance with Section 801, the Successor
Company 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 Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.
--------------------------
Without the consent of any Holders, the Company, when authorized
by a Board Resolution of the Company, 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 evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Notes pursuant to the requirements of Section
1011 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or
to 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 (5) shall not adversely affect the interests of the Holders in
any material respect.
SECTION 902. Supplemental Indentures
with Consent of Holders.
-----------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution of the Company and the Trustee may 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 of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable
thereon, or change the place of payment where, or the coin or currency
in which, any Note 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, in the case of an
Offer to Purchase which has been made, on or after the applicable
Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1020, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Notes in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any supplemental indenture, the
Trustee shall join the Company in the execution of any supplemental
indenture authorized or permitted by this Indenture and shall make any
further appropriate agreements and stipulations as may be contained
therein.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Notes theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Notes to
Supplemental Indentures.
-----------------------
Notes 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 Notes 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 Notes.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest.
---------------------------------
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes in accordance with the terms of
the Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change
in the location, of 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 with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City
of New York) where the Notes 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 will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 1003. Money for Note Payments to be Held in Trust.
-------------------------------------------
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of interest on any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Notes, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Note 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 Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on
each Business Day and of general circulation in The City of New York,
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
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors in good faith shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, as
determined by the Board of Directors in good faith, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any of its Subsidiaries or upon the income, profits or property of the
Company or any of its Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any of its Subsidiaries; provided, however,
that the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Subsidiaries to, keep at
all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause
its Subsidiaries to, use the proceeds from any such insurance policy to
repair, replace or otherwise restore the property to which such proceeds
relate.
SECTION 1008. Limitation on Consolidated Debt.
-------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, Incur any Debt unless immediately after
giving pro forma effect to the Incurrence of such Debt and the receipt and
application of the proceeds thereof, the Consolidated Cash Flow Coverage
Ratio of the Company would be greater than 2.0 to 1; provided that if the
Debt which is the subject of the determination under this provision is
Acquired Debt, the Consolidated Cash Flow Coverage Ratio of the Company
shall be determined by giving effect (on a pro forma basis, as if the
transaction had occurred at the beginning of the immediately preceding
four-quarter period) to both the Incurrence or assumption of such Acquired
Debt by the Company and the inclusion in the Consolidated Cash Flow
Available for Fixed Charges of the Person whose Debt would constitute
Acquired Debt.
Notwithstanding the foregoing paragraph, the Company may, and may
permit any Restricted Subsidiary, to incur the following Debt:
(i) Debt under the Senior Bank Facility in an aggregate principal
amount at any one time not to exceed $1.0 billion, less any amounts by
which any revolving credit facility commitments under the Senior Bank
Facility are permanently reduced pursuant to Section 1014 (so long as
and to the extent that any required payments in connection therewith
are actually made);
(ii) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary of the Company or Debt owed by a Subsidiary of the Company
to the Company or a Wholly Owned Restricted Subsidiary of the Company;
provided, however, that (a) any such Debt owing by the Company to a
Wholly Owned Restricted Subsidiary shall be Subordinated Debt
evidenced by an intercompany promissory note and (b) upon either (1)
the transfer or other disposition by such Wholly Owned Restricted
Subsidiary or the Company of any Debt so permitted to a Person other
than the Company or another Wholly Owned Restricted Subsidiary of the
Company or (2) the issuance (other than directors' qualifying shares),
sale, lease, transfer or other disposition of shares of Capital Stock
(including by consolidation or merger) of such Wholly Owned Restricted
Subsidiary to a Person other than the Company or another such Wholly
Owned Restricted Subsidiary, the provisions of this Clause (ii) shall
no longer be applicable to such Debt and such Debt shall be deemed to
have been Incurred at the time of such transfer or other disposition;
(iii) the original issuance by the Company of the Debt evidenced
by the Notes (including any Exchange Notes);
(iv) Debt (other than Debt described in another clause of this
paragraph) outstanding on the date of original issuance of the Notes
after giving effect to the application of the proceeds of the Notes as
described in Schedule I to this Indenture;
(v) Debt consisting of Permitted Interest Rate, Currency or
Commodity Price Agreements;
(vi) Debt which is exchanged for or the proceeds of which are
used to refinance or refund, or any extension or renewal of,
outstanding Debt Incurred pursuant to the preceding paragraph or
clauses (iii) or (iv) of this paragraph (each of the foregoing, a
"refinancing") in an aggregate principal amount not to exceed the
principal amount of the Debt so refinanced plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt so refinanced or the amount of any
premium (including consent payments) reasonably determined by the
Company as necessary to accomplish such refinancing by means of a
tender offer or privately negotiated repurchase, plus the expenses of
the Company or the Restricted Subsidiary, as the case may be, incurred
in connection with such refinancing; provided, however, that (A) Debt
the proceeds of which are used to refinance the Notes or Debt which is
pari passu with or subordinate in right of payment to the Notes shall
only be permitted if (x) in the case of any refinancing of the Notes
or Debt which is pari passu to the Notes, the refinancing Debt is made
pari passu to the Notes or subordinated to the Notes, and (y) in the
case of any refinancing of Debt which is subordinated to the Notes,
the refinancing Debt constitutes Subordinated Debt; (B) the
refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (1) does not provide
for payments of principal of such Debt at the stated maturity thereof
or by way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase thereof
(including any redemption, defeasance, retirement or repurchase which
is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such Debt upon any
event of default thereunder), in each case prior to the stated
maturity of the Debt being refinanced and (2) does not permit
redemption or other retirement (including pursuant to an offer to
purchase) of such debt at the option of the holder thereof prior to
the final stated maturity of the Debt being refinanced), other than a
redemption or other retirement at the option of the holder of such
Debt (including pursuant to an offer to purchase) which is conditioned
upon provisions substantially similar to those described under
Sections 1014 and 1016; and (C) in the case of any refinancing of Debt
Incurred by the Company, the refinancing Debt may be Incurred only by
the Company, and in the case of any refinancing of Debt Incurred by a
Restricted Subsidiary, the refinancing Debt may be Incurred only by
such Restricted Subsidiary; provided, further, that Debt Incurred
pursuant to this clause (vi) may not be Incurred more than 45 days
prior to the application of the proceeds to repay the Debt to be
refinanced;
(vii) Acquired Debt, provided that such Debt if incurred by the
Company would be in compliance with the first paragraph of this
covenant; and
(viii) Debt not otherwise permitted to be Incurred pursuant to
Clauses (i) through (vii) above, which, together with any other
outstanding Debt Incurred pursuant to this Clause (viii), has an
aggregate principal amount not in excess of $50.0 million at any time
outstanding.
SECTION 1009. Limitation on Senior Subordinated Debt.
--------------------------------------
The Company shall not Incur any Debt which by its terms is both
(i) subordinated in right of payment to any Senior Debt and (ii) senior in
right of payment to the Notes.
SECTION 1010. Limitation on Issuance of Guarantees of
Subordinated Debt.
---------------------------------------
The Company shall not permit any Restricted Subsidiary, directly
or indirectly, to assume, guarantee or in any other manner become liable
with respect to any Debt of the Company that by its terms is pari passu or
junior in right of payment to the Notes.
SECTION 1011. Limitation on Liens.
-------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Lien on or with
respect to any property or assets of the Company or any such Restricted
Subsidiary now owned or hereafter acquired except for (i) Liens incurred
after the date of the Indenture securing Debt of the Company that ranks
pari passu or junior in right of payment to the Notes, if the Notes are
secured equally and ratably with such Debt, (ii) Liens outstanding on the
date of the Indenture, (iii) Liens for taxes, assessments, governmental
charges or claims not yet delinquent or which are being contested in good
faith by appropriate proceedings, provided, that adequate reserves with
respect thereto are maintained on the books of the Company or its
Restricted Subsidiaries, as the case may be, in conformity with generally
accepted accounting principles, (iv) landlords', carriers', warehousemen's,
mechanics', material men's, repairmen's or the like Liens arising by
contract or statute in the ordinary course of business and with respect to
amounts which are not yet delinquent or are being contested in good faith
by appropriate proceedings, (v) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and
similar obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation, (vi)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary, (vii) any attachment or judgment
Lien that does not constitute an Event of Default, (viii) Liens securing
Acquired Debt, provided, that such Liens attach solely to the acquired
assets or the assets of the acquired entity and do not extend to or cover
any other assets of the Company or any of its Restricted Subsidiaries, (ix)
Liens to secure Senior Debt, (x) Liens in favor of the Trustee for its own
benefit and for the benefit of the Holders, (xi) any interest or title of a
lessor pursuant to a lease constituting a Capital Lease Obligation, (xii)
pledges or deposits made in connection with acquisition agreements or
letters of intent entered into in respect of a proposed acquisition; (xiii)
Liens in favor of prior holders of leases on property acquired by the
Company or of sublessors under leases on the Company property; (xiv) Liens
incurred or deposits made to secure the performance of tenders, bids,
leases, statutory or regulatory obligations, banker's acceptances, surety
and appeal bonds, government contracts, performance and return-of-money
bonds and other obligations of a similar nature incurred in the ordinary
course of business (exclusive of obligations for the payment of borrowed
money); (xv) Liens (including extensions and renewals thereof) upon real or
personal property acquired after the date of the Indenture; provided that
(a) such Lien is created solely for the purpose of securing Debt incurred,
in accordance with Section 1008, (1) to finance the cost (including the
cost of improvement or construction) of the item, property or assets
subject thereto and such Lien is created prior to, at the time of or within
six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or (2)
to refinance any Debt previously so secured, (b) the principal amount of
the Debt secured by such Lien does not exceed 100% of such cost and (c) any
such Lien shall not extend to or cover any property or assets other than
such item of property or assets and any improvements on such item; (xvi)
leases or subleases granted to others that do not materially interfere with
the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xvii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xviii) Liens on
property of, or on shares of stock or Debt of, any Person existing at the
time such Person becomes, or becomes a part of, any Restricted Subsidiary,
provided that such Liens do not extend to or cover any property or assets
of the Company or any Restricted Subsidiary other than the property or
assets acquired; (xix) Liens in favor of the Company or any Restricted
Subsidiary; (xx) Liens encumbering deposits securing Debt under Permitted
Interest Rate, Currency or Commodity Price Agreements; (xxi) Liens arising
out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business in
accordance with the past practices of the Company and its Restricted
Subsidiaries; (xxii) Liens on or sales of receivables; (xxiii) the rights
of film distributors under film licensing contracts entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business on a basis customary in the movie exhibition industry; (xxiv)
Liens arising from licenses of patents, trademarks and other intellectual
property rights granted in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of business
of the Company and its Subsidiaries; and (xxv) any renewal of or
substitution of any Liens permitted by any of the preceding clauses,
provided that the Debt secured is not increased (other than by any premium
and accrued interest, plus customary fees, consent payments, expenses and
costs related to such renewal or substitution of Liens or the incurrence of
any related refinancing of Debt) and the Liens are not extended to any
additional assets (other than proceeds and accessions). This covenant does
not authorize the incurrence of any Debt not otherwise permitted by Section
1008.
SECTION 1012. Limitation on Restricted Payments.
---------------------------------
The Company (i) shall not, directly or indirectly, declare or pay
any dividend or make any distribution (including any payment in connection
with any merger or consolidation derived from assets of the Company or any
Restricted Subsidiary) in respect of its Capital Stock or to the holders
thereof, excluding any dividends or distributions by the Company payable
solely in shares of its Capital Stock (other than Redeemable Stock) or in
options, warrants or other rights to acquire its Capital Stock (other than
Redeemable Stock), (ii) shall not, and shall not permit any Restricted
Subsidiary to, purchase, redeem, or otherwise acquire or retire for value
(a) any Capital Stock of the Company or any Related Person of the Company
or (b) any options, warrants or other rights to acquire shares of Capital
Stock of the Company or any Related Person of the Company or any securities
convertible or exchangeable into shares of Capital Stock of the Company or
any Related Person of the Company, (iii) shall not make, or permit any
Restricted Subsidiary to make, any Investment other than a Permitted
Investment, and (iv) shall not, and shall not permit any Restricted
Subsidiary to, redeem, repurchase, defease or otherwise acquire or retire
for value prior to any scheduled maturity, repayment or sinking fund
payment Debt of the Company which is subordinate in right of payment to the
Notes (each of clauses (i) through (iv) being a "Restricted Payment") if:
(1) an Event of Default, or an event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default, shall have
occurred and is continuing or would result from such Restricted Payment, or
(2) after giving pro forma effect to such Restricted Payment as if such
Restricted Payment had been made at the beginning of the applicable
four-fiscal-quarter period, the Company could not Incur at least $1.00 of
additional Debt pursuant to the terms of the Indenture described in the
first paragraph of Section 1008 hereof, or (3) upon giving effect to such
Restricted Payment, the aggregate of all Restricted Payments from the date
of issuance of the Notes exceeds the sum of: (a) 50% of cumulative
Consolidated Net Income (or, in the case Consolidated Net Income shall be
negative, less 100% of such deficit) of the Company since the date of
issuance of the Notes through the last day of the last full fiscal quarter
ending immediately preceding the date of such Restricted Payment for which
quarterly or annual financial statements are available (taken as a single
accounting period); plus (b) $75.0 million; provided, however, that the
Company or a Restricted Subsidiary may make any Restricted Payment with the
aggregate net proceeds received by the Company on or after the date of
original issuance of the Notes (including the aggregate net proceeds
received by the Company from any Public Equity Offering consummated on the
date of original issuance of the Notes), including the fair market value of
property other than cash (determined in good faith by the Board of
Directors as evidenced by a resolution of the Board of Directors filed with
the Trustee), from contributions of capital or the issuance and sale (other
than to a Restricted Subsidiary) of Capital Stock (other than Redeemable
Stock) of the Company, options, warrants or other rights to acquire Capital
Stock (other than Redeemable Stock) of the Company and Debt of the Company
that has been converted into or exchanged for Capital Stock (other than
Redeemable Stock and other than by or from a Restricted Subsidiary) of the
Company after the date of original issuance of the Notes, provided that any
such net proceeds received by the Company from an employee stock ownership
plan financed by loans from the Company or a Restricted Subsidiary of the
Company shall be included only to the extent such loans have been repaid
with cash on or prior to the date of determination. Not less than
semiannually, the Company shall deliver to the Trustee an Officers'
Certificate setting forth any Restricted Payments made since the last
period for which such certificate has been delivered, and the computations
by which the determinations required by clauses (2) and (3) above were made
and stating that no Event of Default, or event that with the passing of
time or the giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing or will result from such Restricted
Payment.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or
would result therefrom, (i) the Company may pay any dividend on Capital
Stock of any class within 60 days after the declaration thereof if, on the
date when the dividend was declared, the Company could have paid such
dividend in accordance with the foregoing provisions; (ii) the Company may
refinance any Debt otherwise permitted by clause (vi) of the second
paragraph under Section 1008 above or solely in exchange for or out of the
net proceeds of the substantially concurrent sale (other than from or to a
Restricted Subsidiary or from or to an employee stock ownership plan
financed by loans from the Company or a Restricted Subsidiary of the
Company) of shares of Capital Stock (other than Redeemable Stock) of the
Company, provided that the amount of net proceeds from such exchange or
sale shall be excluded from the calculation of the amount available for
Restricted Payments pursuant to the preceding paragraph; (iii) the Company
may purchase, redeem, acquire or retire any shares of Capital Stock of the
Company solely in exchange for or out of the net proceeds of the
substantially concurrent sale (other than from or to a Restricted
Subsidiary or from or to an employee stock ownership plan financed by loans
from the Company or a Restricted Subsidiary of the Company) of shares of
Capital Stock (other than Redeemable Stock) of the Company; (iv) the
Company or a Restricted Subsidiary may purchase or redeem any Debt from Net
Available Proceeds to the extent permitted under Section 1014; and (v) the
Company and its Restricted Subsidiaries may make Investments, in an
aggregate amount not to exceed $200.0 million outstanding at any time, in
entities engaging in owning, leasing, developing or constructing motion
picture theaters or principally engaged in the business of exhibiting
motion pictures. Any payment made pursuant to clause (i), (iii) or (v) of
this paragraph shall be a Restricted Payment for purposes of calculating
aggregate Restricted Payments pursuant to the preceding paragraph.
SECTION 1013. Limitations on Dividend and Other
Payment Restrictions Affecting Subsidiaries.
-------------------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability
of any Restricted Subsidiary of the Company (i) to pay dividends (in cash
or otherwise) or make any other distributions in respect of its Capital
Stock or pay any Debt or other obligation owed to the Company or any other
Restricted Subsidiary; (ii) to make loans or advances to the Company or any
other Restricted Subsidiary; or (iii) to transfer any of its property or
assets to the Company or any other Restricted Subsidiary. Notwithstanding
the foregoing, the Company may, and may permit any Restricted Subsidiary
to, suffer to exist any such encumbrance or restriction (a) pursuant to any
agreement in effect on the date of original issuance of the Notes as
described in Schedule II to this Agreement; (b) pursuant to an agreement
relating to any Debt Incurred by a Person (other than a Restricted
Subsidiary of the Company existing on the date of original issuance of the
Notes or any Restricted Subsidiary carrying on any of the businesses of any
such Restricted Subsidiary) prior to the date on which such Person became a
Restricted Subsidiary of the Company and outstanding on such date and not
Incurred in anticipation of becoming a Restricted Subsidiary, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired; (c)
pursuant to an agreement effecting a renewal, refunding or extension of
Debt Incurred pursuant to an agreement referred to in clause (a) or (b)
above, provided, however, that the provisions contained in such renewal,
refunding or extension agreement relating to such encumbrance or
restriction are no more restrictive in any material respect than the
provisions contained in the agreement the subject thereof, as determined in
good faith by the Board of Directors; (d) in the case of clause (iii)
above, restrictions contained in any security agreement (including a
capital lease) securing Debt of a Restricted Subsidiary otherwise permitted
under this Indenture, but only to the extent such restrictions restrict the
transfer of the property subject to such security agreement; (e) in the
case of clause (iii) above, customary nonassignment provisions entered into
in the ordinary course of business consistent with past practices in leases
and other contracts to the extent such provisions restrict the transfer or
subletting or licensing of any such lease or the assignment of rights under
any such contract; (f) any restriction with respect to a Restricted
Subsidiary of the Company imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary, provided that
consummation of such transaction would not result in an Event of Default or
an event that, with the passing of time or the giving of notice or both,
would constitute an Event of Default, that such restriction terminates if
such transaction is closed or abandoned and that the closing or abandonment
of such transaction occurs within one year of the date such agreement was
entered into; or (g) such encumbrance or restriction is the result of
applicable corporate law or regulation relating to the payment of dividends
or distributions.
SECTION 1014. Limitation on Asset Disposition.
-------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related
transactions unless: (i) the Company or the Restricted Subsidiary, as the
case may be, receives consideration for such disposition at least equal to
the fair market value for the assets sold or disposed of as determined by
the Board of Directors in good faith; (ii) at least 75% of the
consideration for such disposition consists of cash or readily marketable
cash equivalents or Qualifying Theater Assets or the assumption of Debt
(other than Debt that is subordinated to the Notes) relating to such assets
and release from all liability on the Debt assumed; and (iii) all Net
Available Proceeds, less any amounts invested or committed to be invested
within 360 days of such disposition in assets related to the business of
the Company, are applied within 360 days of such disposition (1) first, to
the permanent repayment or reduction of Senior Debt then outstanding under
any agreements or instruments which would require such application or
prohibit payments pursuant to clause (2) following, (2) second, to the
extent of remaining Net Available Proceeds, to make an Offer to Purchase
Outstanding Notes at 100% of their principal amount plus accrued interest
to the date of purchase and, to the extent required by the terms thereof,
any other Debt of the Company that is pari passu with the Notes at a price
no greater than 100% of the principal amount thereof plus accrued interest
to the date of purchase, (3) third, to the extent of any remaining Net
Available Proceeds following the completion of the Offer to Purchase, to
the repayment of other Debt of the Company or Debt of a Restricted
Subsidiary of the Company, to the extent permitted under the terms thereof
and (4) fourth, to the extent of any remaining Net Available Proceeds, to
any other use as determined by the Company which is not otherwise
prohibited by this Indenture.
SECTION 1015. Transactions with Affiliates
and Related Persons.
----------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, enter into any transaction (or series of
related transactions) with an Affiliate or Related Person of the Company
(other than the Company or a Wholly Owned Restricted Subsidiary of the
Company), including any Investment, either directly or indirectly, unless
such transaction is on terms no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or Related
Person. For any transaction that involves in excess of $1.0 million but
less than or equal to $5.0 million, the Chief Executive Officer of the
Company shall determine that the transaction satisfies the above criteria
and shall evidence such a determination by a certificate filed with the
Trustee. For any transaction that involves in excess of $5.0 million, a
majority of the disinterested members of the Board of Directors shall
determine that the transaction satisfies the above criteria and shall
evidence such a determination by a Board Resolution filed with the Trustee.
For any transaction that involves in excess of $10.0 million, the Company
shall also obtain an opinion from a nationally recognized expert with
experience in appraising the terms and conditions of the type of
transaction (or series of related transactions) for which the opinion is
required stating that such transaction (or series of related transactions)
is on terms no less favorable to the Company or such Restricted Subsidiary
than those that could be obtained in a comparable arm's-length transaction
with an entity that is not an Affiliate or Related Person of the Company,
which opinion shall be filed with the Trustee.
Notwithstanding anything to the contrary contained in this
Indenture, the foregoing provisions shall not apply to (i) transactions
with any employee, officer or director of the Company or any of its
Restricted Subsidiaries pursuant to employee benefit plans or compensation
arrangements or agreements entered into in the ordinary course of business,
(ii) transactions with any Affiliate or Related Person in which such
Affiliate or Related Person acquires or purchases the capital stock of the
Company or any Restricted Subsidiary at fair market value, (iii) commercial
transactions, including without limitation film rentals, in the ordinary
course of business with Affiliates of the Company on terms that are
customary in the motion picture exhibition industry or consistent with past
practice, or (iv) the performance of any agreement as in effect on the date
of original issuance of the Notes.
SECTION 1016. Change of Control.
-----------------
Within 30 days of the occurrence of a Change of Control, the
Company will be required to make an Offer to Purchase all Outstanding Notes
at a purchase price equal to 101% of their principal amount plus accrued
and unpaid interest, if any, to the date of purchase. A "Change of Control"
will be deemed to have occurred at such time as either (a) any Person
(other than a Permitted Holder) or any Persons acting together that would
constitute a "group" (a "Group") for purposes of Section 13(d) of the
Exchange Act, or any successor provision thereto (other than Permitted
Holders), together with any Affiliates or Related Persons thereof, shall
beneficially own (within the meaning of Rule 13d-3 under the Exchange Act,
or any successor provision thereto), directly or indirectly, at least 50%
of the aggregate voting power of all classes of Voting Stock of the Company
(for the purposes of this clause (a) a person shall be deemed to
beneficially own the Voting Stock of a corporation that is beneficially
owned (as defined above) by another corporation (a "parent corporation"),
if such person beneficially owns (as defined above) at least 50% of the
aggregate voting power of all classes of Voting Stock of such parent
corporation); or (b) any Person or Group (other than Permitted Holders),
together with any Affiliates or Related Persons thereof, shall succeed in
having a sufficient number of its nominees elected to the Board of
Directors of the Company such that such nominees, when added to any
existing director remaining on the Board of Directors of the Company after
such election who was a nominee of or is an Affiliate or Related Person of
such Person or Group, will constitute a majority of the Board of Directors
of the Company.
In the event that the Company makes an Offer to Purchase the
Notes, the Company intends to comply with any applicable securities laws
and regulations, including any applicable requirements of Section 14(e) of,
and Rule 14e-1 under, the Exchange Act.
SECTION 1017. Provision of Financial Information.
----------------------------------
For so long as any of the Notes are outstanding, the Company
shall file with the Commission the annual reports, quarterly reports and
other documents which a reporting company is required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto.
SECTION 1018. Unrestricted Subsidiaries.
-------------------------
The Company may designate any Subsidiary of the Company to be an
"Unrestricted Subsidiary" as provided below in which event such Subsidiary
and each other Person that is then or thereafter becomes a Subsidiary of
such Subsidiary will be deemed to be an Unrestricted Subsidiary.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as such by
the Board of Directors as set forth below where (a) neither the Company nor
any of its other Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or any Guarantee of, any Debt of such
Subsidiary or any Subsidiary of such Subsidiary (including any undertaking,
agreement or instrument evidencing such Debt) or (ii) is directly or
indirectly liable for any Debt of such Subsidiary or any Subsidiary of such
Subsidiary, and (b) no default with respect to any Debt of such Subsidiary
or any Subsidiary of such Subsidiary (including any right which the holders
thereof may have to take enforcement action against such Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Debt of
the Company and its Subsidiaries (other than another Unrestricted
Subsidiary) to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its final scheduled maturity
and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien
on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an
Unrestricted Subsidiary, provided that either (x) the Subsidiary to be so
designated has total assets of $1,000 or less or (y) immediately after
giving effect to such designation, the Company could Incur at least $1.00
of additional Debt pursuant to the first paragraph under Section 1008
hereof and provided, further, that the Company could make a Restricted
Payment in an amount equal to the greater of the fair market value and book
value of such Subsidiary pursuant to Section 1012 hereof and such amount is
thereafter treated as a Restricted Payment for the purpose of calculating
the aggregate amount available for Restricted Payments thereunder.
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates.
------------------------------------
(a) The Company will deliver to the Trustee, within 90 days after
the end of each fiscal quarter of the Company ending after the date hereof
an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of Section 801 or
Sections 1004 to 1018, inclusive, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware or should
reasonably become aware of the occurrence of an Event of Default or an
event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of
such Event of Default or default, and the action which the Company proposes
to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year a written statement by the Company's
independent public accountants stating (A) that their audit examination has
included a review of the terms of this Indenture and the Notes as they
relate to accounting matters, and (B) whether, in connection with their
audit examination, any event which, with notice or the lapse of time or
both, would constitute an Event of Default has come to their attention and,
if such a default has come to their attention, specifying the nature and
period of the existence thereof.
SECTION 1020. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 801 and Sections 1004 to
1018, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Notes shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such covenant
or condition shall remain in full force and effect; provided, however, with
respect to an Offer to Purchase as to which an Offer has been mailed, no
such waiver may be made or shall be effective against any Holder tendering
Notes pursuant to such Offer, and the Company may not omit to comply with
the terms of such Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
-------------------
The Notes may be redeemed at the option of the Company, in whole
or in part, at any time on or after August 1, 2003, and prior to maturity,
at the Redemption Prices specified in the form of Note hereinbefore set
forth together with accrued interest to, but excluding, the Redemption
Date.
In addition, if on or before August 1, 2001 the Company receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, the Company may, at its option, use an amount equal to all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33 1/3% of the original aggregate principal amount of the
Notes, provided, however, that Notes having a principal amount equal to at
least 66 2/3% of the original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must occur on a
Redemption Date within 90 days of such sale and upon not less than 30 or
more than 60 days' notice mailed to each Holder of Notes to be redeemed at
such Holder's address appearing in the Note Register, in amounts of $1,000
or an integral multiple of $1,000, at a redemption price of 108.875% of the
principal amount of the Notes plus accrued and unpaid interest, if any, to
but excluding the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the
particular Notes to be redeemed or any portion thereof that is an integral
multiple of $1,000.
The Notes will not have the benefit of any sinking fund.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Notes at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Notes to be redeemed.
SECTION 1104. Selection by Trustee of Notes to Be
Redeemed.
-----------------------------------
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the
principal amount of Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case
of any Notes selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate,
in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price plus accrued interest, if any,
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
--------------------------------
Notice of redemption having been given as aforesaid, the Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price plus
accrued interest) such Notes shall cease to bear interest. Upon surrender
of any such Note for redemption in accordance with said notice, such Note
shall be paid by the Company at the Redemption Price together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
provided by the Note.
SECTION 1108. Notes Redeemed in Part.
----------------------
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Note so surrendered.
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.
--------------------------------
The Company covenants and agrees, and each Holder of a Note, by
his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Thirteen), the payment of the
principal of (and premium, if any) and interest on each and all of the
Notes are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of the Company.
The Notes will rank pari passu with the guarantee by the Company
of the 10 7/8% Senior Subordinated Notes due 2004 of Xxxxx Theatres, Inc.
SECTION 1202. Payment Over of Proceeds Upon Dissolution,
Etc.
------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the Company
or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or (c)
any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company, then and in any such event specified
in (a), (b) or (c) above (each such event, if any, herein sometimes
referred to as a "Proceeding") the holders of Senior Debt shall be entitled
to receive or retain payment in full of all amounts due or to become due on
or in respect of all Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, before the Holders of the Notes are entitled
to receive any payment or distribution of any kind or character, whether in
cash, property or securities, on account of principal of (or premium, if
any) or interest on or other obligations in respect of the Notes or on
account of any purchase or other acquisition of Notes by the Company or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Notes
Payment"), and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any Notes Payment which
may be payable or deliverable in respect of the Notes in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Note shall have received any
Notes Payment before all Senior Debt of the Company is paid in full or
payment thereof provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Debt, and if such fact shall, at
or prior to the time of such Notes Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
Notes Payment shall be paid over or delivered forthwith to the trustee in
bankruptcy or other person making payment or distribution of assets of the
Company for the application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay the Senior Debt in full in cash or
Cash Equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or
securities" shall not be deemed to include a payment or distribution of
stock or securities of the Company provided for by a plan of reorganization
or readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy
law or of any other corporation provided for by such plan of reorganization
or readjustment which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially the same
extent as the Notes are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its properties
and assets as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in
Default.
------------------------------
In the event that any Senior Payment Default (as defined below)
shall have occurred and be continuing, then no Notes Payment shall be made
unless and until such Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of Senior Debt shall have been paid in full, or provision shall
have been made for such payment in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt. "Senior Payment
Default" means any default in the payment of principal of (or premium, if
any) or interest on Designated Senior Debt when due, whether at the due
date of any such payment or by declaration of acceleration, call for
redemption or otherwise.
Upon the occurrence of a Senior Nonmonetary Default and receipt
of written notice by the Company and the Trustee of the occurrence of such
Senior Nonmonetary Default from any holder of Designated Senior Debt, (or
any trustee, agent or other representative for such holder) which is the
subject of such Senior Nonmonetary Default, no payments on account of
principal of, premium, if any, or interest on, or in respect of the
purchase or other acquisition of, the Notes, and no defeasance of the
Notes, may be made for a period (the "Payment Blockage Period") commencing
on the date of the receipt of such notice and ending the earlier of (i) the
date on which such Senior Nonmonetary Default shall have been cured or
waived or ceased to exist or all Designated Senior Debt the subject of such
Senior Nonmonetary Default shall have been discharged and (ii) the 179th
day after the date of the receipt of such notice. No Senior Nonmonetary
Default that existed or was continuing on the date of the commencement of a
Payment Blockage Period may be made the basis of the commencement of a
subsequent Payment Blockage Period whether or not within a period of 360
consecutive days, unless such Senior Nonmonetary Default shall have been
cured for a period of not less than 90 consecutive days; provided, however,
any breach of any financial covenant for a period commencing after the
expiration of a Payment Blockage Period that would give rise to a new event
of default, even though such breach is a breach of a provision under which
a prior event of default previously existed, shall constitute a new event
of default for this purpose. In any event, notwithstanding the foregoing,
no more than one Payment Blockage Period may be commenced during any
360-day period and there shall be a period of at least 181 days during each
360-day period when no Company Payment Blockage Period is in effect.
"Senior Nonmonetary Default" means the occurrence or existence and
continuance of an event of default with respect to Senior Debt, other than
a Senior Payment Default, permitting the holders of the Designated Senior
Debt (or a trustee or other agent on behalf of the holders thereof) then to
declare such Designated Senior Debt due and payable prior to the date on
which it would otherwise become due and payable.
The failure to make any payment on the Notes by reason of the
provisions of this Article Twelve will not be construed as preventing the
occurrence of an Event of Default with respect to the Notes arising from
any such failure to make payment. Upon termination of any period of Payment
Blockage Period the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments.
In the event that, notwithstanding the foregoing, the Company
shall make any Notes Payment to the Trustee or any Holder prohibited by the
foregoing of this Section, and if such fact shall, at or prior to the time
of such Notes Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Notes Payment shall be
paid over and delivered forthwith to the holders of the Senior Debt of the
Company.
By reason of such subordination, in the event of insolvency by
the Company, creditors of the Company who are not holders of Senior Debt or
of the Notes may recover less, ratably, than holders of Senior Debt and
more, ratably, than Holders of the Notes.
The subordination provisions described in this Article will not
be applicable to payments in respect of the Notes from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Notes as described under Article Thirteen.
The provisions of this Section shall not apply to any Notes
Payment with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Notes shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in Section 1202 or under
the conditions described in Section 1203, from making Notes Payments, or
(b) the application by the Trustee of any money deposited with it hereunder
to Notes Payments or the retention of such Notes Payment by the Holders,
if, at the time of such application by the Trustee, it did not have
knowledge that such Notes Payment would have been prohibited by the
provisions of this Article.
SECTION 1205. Subrogation to Rights of Holders of Senior
Debt.
------------------------------------------
Subject to the payment in full of all amounts due or to become
due on or in respect of Senior Debt of the Company or the provision for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Notes shall
be subrogated to the rights of the holders of such Debt to receive payments
and distributions of cash, property and securities applicable to such Debt
until the principal of (and premium, if any) and interest on the Notes
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Notes or the Trustee
would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Notes or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of
the Notes, be deemed to be a payment or distribution by the Company to or
on account of the Senior Debt of the Company.
SECTION 1206. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Notes, the obligation of the Company,
which is absolute and unconditional (and which, subject to the rights under
this Article of the holders of Senior Debt, is intended to rank equally
with all other general obligations of the Company), to pay to the Holders
of the Notes the principal of (and premium, if any) and interest on the
Notes as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Notes and creditors of the Company other than the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, 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
Notes, without incurring responsibility to the Holders of the Notes and
without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Notes to the holders of
Senior Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Debt;
(iii) release any Person liable in any manner for the collection of Senior
Debt; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1209. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Notes. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from
any trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in
all respects to assume that no such facts exist.
Subject to the provisions of Section 601, 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 therefor)
to establish that such notice has been given by a holder of Senior Debt (or
a trustee therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the 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, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent.
--------------------------------------------
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee, subject to the provisions
of Section 601, and the Holders of the Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 1211. Trustee Not Fiduciary for 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 if it
shall in good faith mistakenly pay over or distribute to Holders of Notes
or to the Company or to any other Person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this
Article or otherwise.
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights.
--------------------------------------
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1212 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1214. Defeasance of This Article Twelve.
---------------------------------
The subordination of the Notes provided by this Article Twelve is
expressly made subject to the provisions for defeasance or covenant
defeasance in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Notes then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
----------------------------------------
The Company may at its option by Board Resolution, at any time,
in accordance with the Exchange and Registration Rights Agreement, elect to
have either Section 1302 or Section 1303 applied to the Outstanding Notes
upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Notes, and
the provisions of Article Eleven and Twelve hereof shall cease to be
effective, on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Notes and to have satisfied all
its other obligations under such Notes and this Indenture insofar as such
Notes are concerned (and the Trustee, 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 such Notes to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any)
and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 304, 305, 306, 1002
and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option under this
Section 1302 notwithstanding the prior exercise of its option under Section
1303.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3),
(4) and (5) of Section 801, (ii) the occurrence of an event specified in
Sections 501(3), 501(4) (with respect to Clauses (1), (3), (4) or (5) of
Section 801), 501(5) (with respect to any of Sections 1005 through 1018,
inclusive), 501(6) and 501(7) shall not be deemed to be an Event of Default
and (iii) the provisions of Article Twelve hereof shall cease to be
effective on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, Clause or Article, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section,
Clause or Article or by reason of any reference in any such Section, Clause
or Article to any other provision herein or in any other document, but the
remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance.
---------------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the then Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen 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 Notes, (A) money 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, money in an amount, or (C) a combination thereof, 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
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any), and each installment of interest on
the Notes on the Stated Maturity of such principal or installment of
interest in accordance with the terms of this Indenture and of such
Notes. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Notes will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Notes will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance had
not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Notes, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(6) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of (or premium, if any) or interest on
or other obligations in respect of any Senior Debt shall have occurred
and be continuing, and no event of default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in
such Senior Debt becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable and
(B) no other event of default with respect to any Senior Debt shall
have occurred and be continuing permitting (after notice or the lapse
of time, or both) the holders of such Senior Debt (or a trustee on
behalf of the holders thereof) to declare such Senior Debt due and
payable prior to the date on which it would otherwise have become due
and payable, or, in the case of either Clause (A) or Clause (B) above,
each such default or event of default shall have been cured or waived
or shall have ceased to exist.
(7) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing.
(8) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (which Opinion of Counsel may
rely, as to factual matters, on such Officer's Certificate), each
stating that all conditions precedent provided for relating to either
the defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
(10) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
-----------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Notes, of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law. Money so
held in trust shall not be subject to the provisions of Article Twelve.
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 1304 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Notes.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1304 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 1302 or 1303 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Thirteen until such time as
the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1302 or 1303; provided, however, that if the
Company makes any payment of principal of (and premium, if any) or interest
on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Note to receive
such payment from the money held by the Trustee or the Paying Agent.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
By /s/ Xxxx X. XxXxxxx, Xx.
-------------------------------
Name: Xxxx X. XxXxxxx, Xx.
Title: Senior Vice President
and General Counsel
Attest:
--------------------------
BANKERS TRUST COMPANY
By /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Attest:
---------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK)
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK)
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ' 306(b)(i) of the Indenture)
Bankers Trust Company
Four Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8 7/8% Senior Subordinated Notes
due 2008 of Loews Cineplex
Entertainment Corporation (the
"Securities")
------------------------------
Reference is made to the Indenture, dated as of August 5, 1998
(the "Indenture"), from Loews Cineplex Entertainment Corporation (the
"Company") to Bankers Trust Company, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). 000000XX0
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by
a Global Security, they are held through the Depositary or an Agent Member
in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the
form of a Regulation S Security. In connection with such transfer, the
Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities Act,
it is being effected in accordance with Rule 904 or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person
acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and
any person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated
by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the
transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(b)(1) have
been satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ' 306(b)(ii) of the Indenture)
Bankers Trust Company
Four Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8-7/8% Senior Notes due 2008 of
Loews Cineplex Entertainment
Corporation (the "Securities")
-------------------------------
Reference is made to the Indenture, dated as of August 5, 1998
(the "Indenture"), from Loews Cineplex Entertainment Corporation (the
"Company")and Bankers Trust Company, as Trustee. Terms used herein and
defined in the Indenture or in Rule 144A or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). 000000XX0
ISIN No(s), If any. 454098AA3
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by
a Global Security, they are held through the Depositary or an Agent Member
in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the
form of a Restricted Security. In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to
an effective registration statement under the Securities Act, (i) the Owner
is not a U.S. Person (as defined in the Indenture) and (ii) such transfer
is being effected in accordance with Rule 144A or Rule 144 under the
Securities Act and all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ' 306(c))
Bankers Trust Company
Four Albany Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8-7/8% Senior Subordinated Notes
due 2008 of Loews Cineplex
Entertainment Corporation (the
"Securities")
--------------------------------
Reference is made to the Indenture, dated as of August 5, 1998
(the "Indenture"), from Loews Cineplex Entertainment Corporation (the
"Company"), and Bankers Trust Company, as Trustee. Terms used herein and
defined in the Indenture or in Rule 144 under the U.S. Securities Act of
1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). 000000XX0
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by
a Global Security, they are held through the Depositary or an Agent Member
in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to
Section 306(c) of the Indenture. In connection with such exchange, the
Owner hereby certifies that the exchange is occurring after a holding
period of at least two years (computed in accordance with paragraph (d) of
Rule 144) has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is later,
and the Owner is not, and during the preceding three months has not been,
an affiliate of the Company. The Owner also acknowledges that any future
transfers of the Specified Securities must comply with all applicable
securities laws of the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
INDENTURE
SECTION 1008(IV) SCHEDULE I
AS OF MAY 31, 1998:
MORTGAGES:
Amount Maturity Rate Theatre
--------------- ---------------- --------- ----------------
Xxxxx Theatres:
Birchter Properties $ 129,752 1-Jun-07 8.50% Town & Country
Xxxxxx Xxxxxxx 198,973 01-Dec-08 11% Xxxxxxxx
Texas Commerce Bank 168,636 1-Jun-00 9.25% Presidio
Xxxxxx Fastenberg 809,442 1-Jul-00 11.50% Baronet/Coronet
National Western Life 3,824,828 1-Sep-07 10% El Dorado
National Western Life 2,883,089 1-Sep-07 10% Catalina
Xxxxxx Xxxxxxxx 228,572 1-Mar-02 0% Xxxxxxxx
Connecticut Mutual Life 3,750,000 1-May-00 10.5% Olympia
Royal Maccabees Life 6,831,000 1-Apr-04 8.25% Lincoln Village
Swiss Bank Corp. 3,000,000 15-Jan-99 8% Court & State
Metro Xxxxxx Assoc. 946,175 13-Nov-98 5.61% Metro Xxxxxx
-------------
$22,770,467
-------------
Cineplex Canada:
London Life $ 6,412,146 01-Feb-02 9.63% 0000 Xxxxx Xx.
Xxxxxx Xxxx 36,458 08-Oct-98 7.50% South Common
-------------
$ 6,448,604
-------------
Loews:
Xxxxxx Place Assoc. $ 250,000 28-Feb-99 8.50% Sack Theatres
$ 29,469,071
=============
CAPITAL LEASES:
Amount Maturity Rate Theatre
--------------- ---------------- --------- ----------------
Loews:
Jinep Co. $ 255,000 1-Aug-02 16% Loews Showboat
00 Xxxxx Xxx. 10,687,000 1-May-11 8% Loews East Vill.
-------------
$ 10,942,000
Xxxxx:
JMB Properties $ 555,330 31-Aug-17 8.50% River Oaks 9-10
Hawthorn Theatre LLC 522,565 30-Nov-02 8.50% Hawthorn
Orland C.P. 634,249 30-Jun-02 8.50% Orland Square
Fox Valley LLC 545,594 20-Nov-02 8.50% Fox Valley
000 X 00xx Xx. 331,398 31-Mar-02 8.50% 86th St.
IMAX Corp. 501,672 01-Jun-10 11% IMAX Equip.
Charter Financial Corp. 13,339,000 Various 12 CPX Locations
-------------
$ 16,429,808
$ 27,371,808
=============
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
INDENTURE
SECTION 1013 SCHEDULE II
1) Master Agreement, dated May 14, 1998, among Loews Cineplex
Entertainment Corporation, as Borrower, the Lenders listed therein, as
Lenders, Bankers Trust Company, as Administrative Agent and as a
Co-Syndication Agent, Bank of America NT&SA, as a Co-Syndication
Agent, The Bank of New York, as a Co-Syndication Agent, and Credit
Suisse First Boston, as a Co-Syndication Agent
2) Capital Leases and Mortgages as listed on Schedule I as provided for
under Section 1008 (iv) of the Indenture
