INTERNATIONAL SPEEDWAY CORPORATION
$225,000,000
7 % SENIOR NOTES DUE 2004
_________________________________
INDENTURE
Dated as of October 6, 1999
_________________________________
FIRST UNION NATIONAL BANK,
Trustee
INDENTURE, dated as of October 6, 1999, between International Speedway
Corporation, a corporation organized and existing under the laws of the State
of Florida (herein called the "Company"), having its principal executive
office at 1801 West International Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx
00000, the Guarantors named on the signature pages hereto (collectively, the
"Guarantors"), and First Union National Bank, a national banking association
duly organized and existing under the laws of the United States of America, as
Trustee (herein called the "Trustee").
Recitals
The Company, Guarantors and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the 7 %
Senior Notes due 2004 (the "Notes"):
ARTICLE I
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,
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 at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; 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.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Assets" means (i) any property or assets (other than
indebtedness and Capital Stock) in a Related Business, including improvements
to existing assets, used by the Company or a Restricted Subsidiary in a
Related Business; (ii) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary; provided, however, that any such Restricted
Subsidiary is primarily engaged in a Related Business; (iii) Capital Stock
constituting an additional equity interest in any Person that at such time is a
Restricted Subsidiary that is not a wholly-owned subsidiary; or (iv) the costs
of improving or developing any property owned by the Company or a Restricted
Subsidiary that is used in a Related Business.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct 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.
"Attributable Debt" means, in respect of a Sale and Leaseback Transaction
and as of any particular time, the present value (discounted at the rate of
interest implicit in the terms of the lease involved in such Sale and
Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for net rental payments (excluding, however,
any amounts required to be paid by such lessee, whether or not designated as
rent or additional rent, on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates or similar charges or any amounts
required to be paid by such lessee thereunder contingent upon monetary inflation
or the amount of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges) during the remaining term of such lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate the
Notes.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for relief of debtors.
"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", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any
preferred stock, but excluding any debt securities convertible into such
equity.
"Commission" means the Securities and Exchange Commission, 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" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company.
"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 Vice
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.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is
not published or does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations (as defined below) for
such Redemption Date, after excluding the highest and lowest such Referenced
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, and (b) all current
liabilities, all as reflected in the Company's most recent consolidated
balance sheet contained in the Company's most recent consolidated financial
statements filed with the Commission prior to the time as of which "Consolidated
Net Tangible Assets" shall be determined.
"Corporate Trust Office" means the designated corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, presently such office is 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Corporate Trust Department.
"Corporation" means any corporation, partnership, joint venture,
association, joint stock company, business trust, trust, unincorporated
organization, limited liability company or other entity.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Credit Facility" means the debt facility pursuant to that certain Credit
Agreement among the Company, certain Subsidiaries of the Company, the Lenders
signatory thereto, SunTrust Bank, South Florida, N.A., as Documentation Agent
and First Union National Bank, as Administrative Agent, dated as of July 21,
1999, as the same may be amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Custodian" means Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"Debt" means with respect to any Person, any indebtedness of such Person:
in respect of borrowed money; evidenced by bonds, notes, debentures, or
similar instruments or letters of credit (or reimbursement agreements in respect
thereof); in respect of bankers acceptances; representing capital lease
obligations; in respect of the balance deferred and unpaid of the bargained
for consideration or purchase price in respect of the acquisition of any
property, except such balance that constitutes an accrued expense or trade
payable; or representing obligations under interest rate swap, cap or collar
agreements or other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in the form of one or more Global Notes, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Notes as contemplated by Section 305.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Note" means each Note that evidences all or part of the Notes and
bears the legend set forth in Section 204.
"Guarantee" means any guarantee of all or any part of any indebtedness
other than by endorsement of negotiable instruments for collection in the
ordinary course of business, direct or indirect, in any manner, including,
without limitation, by way of a pledge of assets or through letters of credit
or reimbursement agreements in respect thereof.
"Guarantors" means each of:
(1) the Company's Subsidiaries existing on the date of this
Indenture that have executed this Indenture; and
(2) any other Subsidiary that executes a Note Guarantee in
accordance with the provisions of this Indenture;
and their respective successors and assigns.
"Holder" means a Person in whose name a Note is registered.
"Indenture" means this instrument as originally executed and 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.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on such Note.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Lien" means any mortgage, pledge, security interest, lien or other
encumbrance.
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 4 of the Registration Rights Agreement.
"Maturity", when used with respect to any Note, means the date on which
the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-U.S. person" means a person who is not a U.S. Person, as defined in
Regulation S.
"Notes" has the meaning stated in the recital of this Indenture and more
particularly means any Notes authenticated and delivered under this Indenture.
"Note Guarantee" means a Guarantee of the Notes by a Guarantor.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice 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. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"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.
"Outstanding", when used with respect to the Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) 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;
(3) Notes as to which Defeasance has been effected pursuant to Section
1302; and
(4) Notes which have been paid 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, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, 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, waiver or other
action, 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 or any premium or interest on, or any Liquidated Damages with
respect to, any Notes on behalf of the Company.
"Person" means any individual, Corporation or government or any agency
or political subdivision thereof.
"Place of Payment", when used with respect to the Notes, means the place
or places where the principal of and any premium and interest on, or any
Liquidated Damages with respect to, the Notes are payable as specified as
contemplated by Section 305.
"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 306 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.
"Principal Property" means any single racetrack facility or business unit
located within the United States of America (other than its territories and
possessions) and owned or operated by, or leased to, the Company or any
Subsidiary, the book value of the property and equipment of which (as shown,
net of depreciation, on the books of the owner or owners thereof) is not less
than 4% of the Consolidated Net Tangible Assets as shown on the most recent
consolidated financial statements of the Company filed with the Commission,
except (a) any such facility (i) owned or operated or leased jointly or in
common with one or more Persons other than the Company and its Subsidiaries,
in which the interest of the Company and its Subsidiaries does not exceed 50%,
or (ii) which the Board of Directors determines by Board Resolution in good
faith is not of material importance to the total business conducted, or assets
owned, by the Company and its Subsidiaries as an entirety, or (b) any portion
of any such facility which the Board of Directors determines by Board
Resolution in good faith not to be of material importance to the use or
operation thereof.
"Private Placement Legend" shall have the meaning specified in
Section 205.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"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.
"Reference Treasury Dealers" means Xxxxxxx Xxxxx Xxxxxx Inc., First Union
Capital Markets Corp., Banc One Capital Markets, Inc., Xxxxxxx Xxxxx &
Associates, Inc. and SunTrust Equitable Securities and their successors. If
any Reference Treasury Dealer shall cease to be a primary U.S. Government
securities dealer, the Company will designate in writing to the Trustee
another nationally recognized investment banking firm that is a primary U.S.
Government securities dealer.
"Reference Treasury Dealer Quotations" means, with respect to the
Reference Treasury Dealers and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealers, at 5:00 p.m., New
York City time, on the third business day preceding that Redemption Date.
"Register of Notes" shall have the meaning specified in Section 305.
"Registrar" shall have the meaning specified in Section 305.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the date of this Indenture, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Notes means April 1, or October 1 next preceding the applicable
Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means any business related, ancillary or complementary
(as determined in good faith by the Board of Directors) to the business of the
Company and its Restricted Subsidiaries on the date of this Indenture.
"Remaining Scheduled Payments" means, with respect to the Notes to be
redeemed, the remaining scheduled payments of principal of and interest on
those Notes that would be due after the related Redemption Date but for that
redemption; provided, however, that if such Redemption Date is not an Interest
Payment Date with respect to the Notes to be redeemed, the amount of the next
succeeding schedule interest payment on those Notes will be reduced by the
amount of interest accrued on such Notes to such Redemption Date.
"Restricted Security" shall have the meaning specified in Rule 144 of the
Securities Act.
"Restricted Subsidiary" means any Subsidiary substantially all the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America (other than its territories
and possessions) which shall at the time, directly or indirectly through one or
more Subsidiaries or in combination with one or more other Subsidiaries, own,
operate or be a lessee of a Principal Property.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" has the meaning specified in Section
1009.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Note or any installment
of principal thereof or interest thereon, means the date specified in such
Note as the fixed date on which the principal of such Note or such installment
of principal or interest is due and payable.
"Subsidiary" means as to any Person, a Corporation or other entity of
which the shares of stock or other ownership interests have ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such Corporation or other entity are
at the time owned, or management of which is otherwise controlled, directly or
indirectly, through one or more intermediaries, or both, by such Person. For
purposes of this Indenture, all Subsidiaries are also Affiliates of the
Company.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding that Redemption Date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; 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 or include each Person who is then a Trustee hereunder.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"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".
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 requirements 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 or she
has made such examination or investigation as is necessary to enable him or
her 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 or her 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: (x) a certificate of
public officials; or (y) 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 Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made 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.
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 or her the execution thereof. Where
such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her 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.
The ownership of Notes shall be proved by the Register of Notes.
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.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Notes, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Notes on such record date, and no other Holders, shall
be entitled to take the relevant action, whether or not such Holders remain
Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(defined below) by Holders of the requisite principal amount of Outstanding
Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Notes on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Notes in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to join in the giving or
making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Xxxxxxx 000, (xxx) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 512.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Notes on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Notes on such record
date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Notes on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Notes in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party hereto in writing,
and to each Holder of Notes in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto
which set such record date shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Note may do so with regard to
all or any part of the principal amount of such Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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
Department, 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, Attention: Chief Financial Officer.
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 its address as it appears in the Register of Notes,
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 which is required under such Act to be a 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
which 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.
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, and by any
Guarantors, shall bind their respective 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
and the Holders, 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 law of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes (other
than a provision of any Note which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, at the Stated Maturity.
ARTICLE II
Form of Notes
Section 201. Form Generally.
The Notes shall be in substantially the form set forth in this Article,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such legends, 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 Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof.
The definitive Notes shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
Section 202. Form of Face of Note.
___________________________________________________________
___________________________________________________________________________
No. _________ $___________
International Speedway Corporation, a corporation duly organized and
existing under the laws of the State of Florida (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 on October 15, 2004, and to pay interest thereon and
Liquidated Damages, if any, from October 6, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on April 15 and October 15 in each year, commencing
April 15, 2000, at the rate of 7.875% per annum, until the principal hereof is
paid or made available for payment, provided that any principal and premium, and
any such installment of interest and any Liquidated Damages, which is overdue
shall bear interest at the rate of 8.875% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The Company's obligation to pay interest
hereunder shall include post-petition interest in any proceeding under any
Bankruptcy Law. 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 the April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such 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.
Payment of the principal of (and premium and Liquidated Damages, if any)
and interest on this Note will be made at the office or agency of the Company
maintained for that purpose within or without the City and State of New York,
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 and Liquidated
Damages, if any, may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Register of Notes.
Event Equipment Leasing, Inc., a Florida corporation, Event Support
Corporation, a Florida corporation, North American Testing Company, a Florida
corporation, ISC Properties, Inc., a Florida corporation, Seasonal Services,
Inc., a Florida corporation, Great Western Sports, Inc., an Arizona
corporation, Phoenix Speedway Corp., a Delaware corporation, Xxxxxxx Xxxx
International, Inc., a Delaware corporation, South Carolina International
Speedway Corporation, a South Carolina corporation, Americrown Service
Corporation, a South Carolina corporation, Chicago Holdings, Inc., a Nevada
corporation, New York International Speedway Corp., a Delaware corporation,
Miami Speedway Corp., a Nevada corporation, Michigan International Speedway,
Inc., a Michigan corporation, Rocky Mountain Speedway Corporation, a Colorado
corporation, California Speedway Corporation, a Delaware corporation, 88
Corp.,
a Delaware corporation, North Carolina Speedway, Inc., a North Carolina
corporation, Regiment, Inc., a North Carolina corporation, Pennsylvania
International Raceway, Inc., a Pennsylvania corporation, Motorsport
International Corp., a Pennsylvania corporation, Competition Tire South, Inc.,
a Delaware corporation, Competition Tire West, Inc., a Delaware corporation
(collectively, the Guarantors, which term includes any successors under the
Indenture herein after referred to and any Subsidiary of the Company that
provides a Note Guarantee pursuant to the Indenture), have jointly and
severally, fully and unconditionally guaranteed the payment of the principal
of, premium and interest on, and Liquidated Damages, if any, with respect to,
the Notes.
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 executed
by its duly authorized officer.
Dated: October 6, 1999 INTERNATIONAL SPEEDWAY CORPORATION
By:
Name:
Title:
Section 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the Company
(herein called the "Notes"), issued and to be issued under an Indenture, dated
as of October 6, 1999 (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company, the
Guarantors named in the signature pages thereto and First Union National Bank,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, 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 terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes are general obligations of the
Company limited to $225 million in aggregate principal amount.
The Notes are subject to redemption upon not less than 30 days' and not
more than 60 days' notice by mail at any time or from time to time, as a whole
or in part, at the election of the Company, at Redemption Prices equal to the
greater of (1) 100% of the principal amount of the Notes to be redeemed or (2)
the sum of the present values of the Remaining Scheduled Payments on the Notes
to be redeemed, discounted, on a semiannual basis (assuming a 360-day
consisting of twelve 30-day months), at a rate equal to the sum of the
applicable Treasury Rate plus 30 basis points. All accrued and unpaid
interest on the Notes to be redeemed shall be paid to the Redemption Date but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of the Notes, or one or more Predecessor
Notes, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of like tenor for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and Events
of Default with respect to this Note, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, the principal of
the Notes may be declared due and payable in the manner and with the effect
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 to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of more than 50% in principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all 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 here for 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 the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in 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 provided to the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such request, and Trustee shall have failed to
institute any such proceeding, for 60 days after receipt of such notice,
request and provision of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of: (i) any payment
of principal hereof or any premium or interest hereon or (ii) any payment of
any Liquidated Damages with respect to this Note, on or after the respective
due dates expressed herein or thereof.
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 any premium and
interest on, and Liquidated Damages, if any, with respect to, 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 Register of Notes,
upon surrender of this Note for registration of transfer at the office or
agency of the Company in any Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or its attorney
duly authorized in writing, and thereupon one or more new Notes and of like
tenor, 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 minimum
denominations of $100,000 and integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Notes are exchangeable for a like aggregate principal amount of
Notes of like tenor 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.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of October 6, 1999, among the Company
and the other parties named on the signature pages thereof.
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, 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.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Notes and Schedule of Exchanges of
Interests in the Global Note.
Every Global Note authenticated and delivered hereunder shall bear a
legend in substantially the following form:
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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Every Global Note authenticated and delivered hereunder shall contain a
"Schedule of Exchanges of Interests in the Global Note" in form and substance
satisfactory to the Company and the Trustee.
Section 205. Private Placement Legend.
Each Note (including each Global Note) (and all Notes issued in exchange
therefor or substitution thereof) that constitutes a "Restricted Security"
under the Securities Act and the Regulations promulgated thereunder shall bear
a legend ("Private Placement Legend") in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Section 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, As Trustee
By
Authorized Signatory
Section 207. Form of Assignment.
Any Note constituting a Restricted Security shall have the Assignment
Form set forth on Exhibit A attached to the Note. Any Note not constituting
a Restricted Security shall have the Assignment Form set forth on Exhibit B
attached to the Note.
ARTICLE III
The Notes
Section 301. Amount.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture shall be $225,000,000 (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Xxxxxxx 000, 000, 000, 000 xx 0000
and except for any Notes which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder).
Section 302. Denominations.
The Notes shall be issuable only in fully registered form without
coupons, and only in minimum denominations of $100,000 and in integral
multiples of $1,000 in excess 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 Vice Chairman of the Board, its President or one of its Vice
Presidents, or by any other duly authorized officer. 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
the Company Order shall authenticate and deliver such Notes.
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. Notwithstanding the foregoing, if any
Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 309, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Note.
Pending the preparation of definitive Notes, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Notes
which 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 of such
Notes.
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
of such series upon surrender of the temporary Notes at the office or agency of
the Company in a Place of Payment, 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 one or more
definitive Notes of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes of such series and tenor.
Section 305. Registration; Registrar and Paying Agent; Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register of Notes (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Register of Notes") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes. The Trustee
is hereby appointed "Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided.
The Company shall maintain an office or agency where the Notes may be
presented for payment ("Paying Agent").
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company may appoint one or more co-Registrars and one or more
additional Paying Agents, and the term "Registrar" includes any co-Registrar
and the term "Paying Agent" includes any additional Paying Agent.
The Company initially appoints the Trustee to act as the Paying Agent and
to act as Custodian with respect to the Global Notes. The Corporate Trust
Offices of the Trustee in New York, New York and Jacksonville, Florida shall
be the initial "Places of Payment". The office of any additional Paying Agent
shall also be a Place of Payment.
Subject to the provisions of Clauses (1) - (7) of this Section 305, upon
surrender for registration of transfer of any Notes at the office or agency of
the Company in a Place of Payment, 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 and of
like tenor and aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
the same series, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Notes to be exchanged at
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
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Each Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or its attorney duly authorized in writing, and shall also be
accompanied by such certifications with respect to the transferee and the method
by which the transferor elects to effect the transfer, as the Company and the
Registrar shall require in their sole and absolute discretion.
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 Section 304, 906 or 1107 not involving any transfer.
If the Notes are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Notes during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Notes selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) 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.
Any Holder of any Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Notes may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
The provisions of Clauses (1), (2), (3), (4), (5), (6) and (7) below
shall apply only to Global Notes:
(1) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary 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.
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, or the Trustee as its Custodian, or under the Global
Notes, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Notes
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary, or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(2) Transfers of the Global Notes shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in any Global Note may be
transferred or exchanged for physical Notes in accordance with the rules and
procedures of the Depositary and the provisions of Section 312. In addition,
physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in any Global Note if (i) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for the
Global Note or has ceased to be a clearing agency registered under the
Exchange Act, and a successor depositary is not appointed by the Company within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary to issue
physical Notes.
(3) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
Clause (2) of this Section 305, the Registrar shall (if one or more physical
Notes are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more physical Notes of like tenor and amount.
(4) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to Clause (2) of this Section 305, the Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Note, an equal aggregate principal amount of Notes
Registered of authorized denominations.
(5) Any Note Registered constituting a Restricted Security delivered
in exchange for an interest in the Global Note pursuant to Clauses (3) or (4)
of this Section 305 shall, except as otherwise provided by Clauses 1 (A) (x)
and (3) of Section 312, bear the legend regarding transfer restrictions
applicable set forth in Section 205.
(6) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
(7) 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 Section, Section 304, 306, 906 or 1107 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.
Section 306. 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 the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen 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 307. Payment of Interest; Liquidated Damages; 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.
The Trustee shall be entitled to rely upon the information contained in
any notice (including dates and computations) delivered by the Company which
purports to be given under Section 4(b) of the Registration Rights Agreement
in determining the amount of Liquidated Damages payable under Section 4(a)
thereof; provided however, that nothing herein shall relieve the Company of
its obligations to make any payments due under the Registration Rights
Agreement.
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 given to
each Holder of Notes in the manner set forth in Section 106, 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 on the Notes
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice as
may be required by such exchange, if, after 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 308. 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 any premium and (subject to
Section 307) any interest on, and Liquidated Damages, if any, with respect to,
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.
Section 309. Cancellation.
All Notes surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Notes previously
authenticated hereunder which the Company has not issued and sold, and all
Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall
be authenticated in lieu of or in exchange for any Notes cancelled as provided
in this Section, except as expressly permitted by this Indenture. All
cancelled Notes held by the Trustee shall be disposed of as directed by a
Company Order.
Section 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 311. CUSIP Number.
The company in issuing the Notes may use one or more "CUSIP" numbers, and
if so, the appropriate CUSIP number(s) shall be included in all notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made by the Trustee as to the
correctness or accuracy of any CUSIP number(s) printed in the notice or on the
Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company shall promptly notify the Trustee of
any change in the CUSIP number.
Section 312. Special Transfer Provisions.
(1) Transfers to Non-QIB Institutional Accredited Investors and Non-
U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person.
(A) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
legend required by Section 205 hereof, if (x) the requested transfer is
after October 6, 2000 and the transferor certifies that the Restricted
Security was not acquired from the Company or an Affiliate of the Company
less than two years prior to the date of the proposed transfer or (y) (i)
in the case of a transfer to an Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto or (ii) in the case of a transfer to a Non-U.S. Person,
the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto; and
(B) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (A) above and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures, whereupon (i) the Registrar shall reflect on its
books and records the date and (if the transfer does not involve a
transfer of outstanding physical Notes) a decrease in the principal
amount of the Global Note in an amount equal to the principal amount of
the beneficial interest in the Global Note to be transferred, and (ii)
the Company shall execute and the Trustee shall authenticate and deliver
one or more physical Notes of like tenor and amount.
(2) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(A) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company and
the Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that it is purchasing
the Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is
a Q.B. within the meaning of Rule 144A, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(B) if the proposed transferee is an Agent Member, and the Notes
to be transferred consist of Notes Registered which after transfer are
to be evidenced by an interest in the Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the physical Notes to
be transferred, and the Trustee shall cancel the physical Notes so
transferred.
(3) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the legend the Registrar shall
deliver Notes that do not bear the legend. Upon the registration of transfer,
exchange or replacement of Notes bearing the legend the Registrar shall
deliver
only Notes that bear the legend unless the circumstance contemplated by
paragraph 1 (A) (x) of this Section 312 exist or there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Act.
(4) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the legend, and
agrees that it will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 305 or this Section 312
for a period of three years. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE IV
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Notes herein expressly provided for), and the Trustee, 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 306 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 that
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and any premium and Liquidated Damages, 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, the
obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 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 any premium
and Liquidated Damages, if any, and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE V
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Notes, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall 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) default in the payment of any interest upon, or Liquidated Damages
with respect to, the Notes when the same becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on the
Notes at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company or any Restricted Subsidiary in this Indenture (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
(4) except as permitted by this Indenture, any Note Guarantee shall be
held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect, or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under its Note Guarantee; or
(5) 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 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 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 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 Restricted Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, 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
(6) the commencement by the Company or any Restricted Subsidiary 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 it to
the entry of a decree or order for relief in respect of the Company or any
Restricted Subsidiary 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 it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Restricted
Subsidiary or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company 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(5) or 501(6)) with respect to the Notes occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Notes may declare the principal amount of
all 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 amount (or specified amount) shall become immediately
due and payable. If an Event of Default specified in Section 501(5) or 501 (6)
with respect to the Notes occurs, the principal amount of all the Notes shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Notes 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 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, and Liquidated Damages, if any, with
respect to, the Notes,
(B) the principal of (and premium, if any, on) the Notes which
have become due otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed therefor in the
Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and Liquidated Damages, if any, at the
rate or rates prescribed therefor in 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 with respect to the Notes, other than the
non-payment of the principal of the 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, or Liquidated
Damages, if any, with respect to, the Notes when such interest or Liquidated
Damages 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) the Notes at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Notes, the whole amount then due and payable on the Notes for
principal and any premium and interest and Liquidated Damages, if any, and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest and on
any Liquidated Damages, at the rate or rates prescribed therefor in the Notes,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection (including any costs and expenses incurred
in any bankruptcy proceeding), including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of the Notes 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), its property 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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
the 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.
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 any
premium 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 payment of the amounts then due and unpaid on the Notes
for principal, any premium, interest, and Liquidated Damages, if any, 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, any premium, interest, and
Liquidated Damages, if any, 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 with respect to the Notes;
(2) the Holders of not less than 25% in 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 provided 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 provision 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
principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Payment.
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 any premium and (subject to Section 307)
interest on, and Liquidated Damages, if any with respect to, such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 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
306, 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 Notes 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 principal amount of the Outstanding Notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Notes, provided that
(1) such 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 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 any premium or interest on
or any Liquidated Damages with respect to, any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine 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 by the Trustee.
Section 515. Waiver of Usury, 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 usury, 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 VI
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. 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.
If a default occurs hereunder with respect to the Notes, the Trustee
shall give the Holders of the Notes notice of such default 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) with respect to the
Notes, 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 with respect to the Notes.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(2) 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 shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) 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;
(5) 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
provided 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;
(6) 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; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of the 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 neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Notes or the proceeds thereof.
Section 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Registrar
or any other agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of the 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, Authenticating Agent, Paying Agent, 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 incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, 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 provisions of this Section 607 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 608. 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 one (and only one) Trustee hereunder with
respect to the Notes. Each Trustee 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 $100,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, 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 with respect to the Notes 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.
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 in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Notes by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 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 with respect to the Notes.
The Trustee may be removed at any time with respect to the Notes by Act
of the Holders of a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
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, (A) the Company by a Board Resolution
may remove the Trustee with respect to the Notes, or (B) 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 with
respect to all Notes and the appointment of a successor Trustee or Trustees.
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, with
respect to the Notes, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Notes (it being
understood that any such successor Trustee may be appointed with respect to
all Notes and that at any time there shall be only one Trustee with respect to
all Notes) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Notes
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Notes, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Notes and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, 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 with respect to the Notes.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Notes each appointment of a successor Trustee with
respect to the Notes to all Holders of Notes in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect
to the Notes and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Notes, every such successor Trustee so appointed 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 the
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 any such successor Trustee, 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 referred to in the
preceding paragraph, as the case may be.
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 of the bond administration
portion of 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).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Notes which shall be authorized to act on behalf of the Trustee to
authenticate Notes issued upon original issue and upon exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Notes so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall at
all times be a Corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
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 Authenticating Agent
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 an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Notes. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to the Notes is made pursuant to this
Section, the Notes may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
,
As Trustee
By
As Authenticating Agent
By
Authorized Officer
ARTICLE VII
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
(1) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Notes as of the preceding January 1 or July 1,
as the case may be, and
(2) 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 Registrar.
Section 702. Preservation of Information; Communications to Holders.
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 Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
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 privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
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 names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
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 July 1 in each calendar
year, commencing in 2000.
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 any Notes
are listed, with the Commission and with the Company. The Company will notify
the Trustee when any 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 the Trust Indenture Act; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE VIII
Successors
Section 801. Merger, Consolidation, or Sale of Assets.
Neither the Company nor any Subsidiary may, directly or indirectly: (i)
consolidate with or merge into any other Person; or (ii) convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
and the Company and its Subsidiaries shall not permit any Person to consolidate
with or merge into the Company or any Subsidiary or convey, transfer or lease
its properties and assets substantially as an entirety to the Company or any
of its Subsidiaries, unless:
(1) in case the Company or any Subsidiary (subject to Section 1205
hereof) shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company or any
Subsidiary is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company or any Subsidiary
substantially as an entirety shall be a Corporation shall be organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on, and Liquidated Damages, if any, with respect
to, all the Notes and the performance or observance of every covenant of this
Indenture on the part of the Company or any Subsidiary to be performed or
observed by such consolidation or into which the Company or any Subsidiary
shall have been merged or by the Person which shall have acquired the
Company's or any Subsidiary's assets;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any Subsidiary
as a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company or any
Restricted Subsidiary would become subject to a Lien which would not be
permitted by this Indenture, the Company or such successor Person, as the case
may be, shall take such steps as shall be necessary effectively to secure the
Notes equally and ratably with (or prior to) all indebtedness secured thereby;
and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company or any Subsidiary with, or merger
of the Company or any Subsidiary into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or any
Subsidiary substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company or such
Subsidiary is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or any Subsidiary under this Indenture with the same
effect as if such successor Person had been named as the Company or a
Subsidiary 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 IX
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, 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 of the Notes or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of the Notes; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of the Notes
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of the Notes
in uncertificated form; or
(5) to secure the Notes or one or more Note Guarantees; or
(6) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Notes pursuant to the requirements
of Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause (8)
shall not adversely affect the interests of the Holders of the Notes in any
material respect; or
(9) to allow any Subsidiary to Guarantee the Notes.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of more than 50% in principal amount of
the Outstanding Notes affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, 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 of the Notes 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 principal of or interest on, any Note, or the date any Liquidated Damages
shall be due and payable with respect to any Note, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof or the rate at which any Liquidated Damages are payable
with respect thereto, or reduce the amount of the principal of, or change any
Place of Payment where, or the coin or currency in which, any Note or any
premium or interest thereon or any Liquidated Damages with respect thereto, 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 any Liquidated Damages, the
date the same are due and payable), 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 1011, 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; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1011, or the deletion of this
proviso, in accordance with the requirements of Section 611, or
(4) release any Guarantor from any of its obligations under any Note
Guarantee or this Indenture, except pursuant to the express terms of this
Indenture.
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.
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 X
Covenants
Section 1001. Payment of Notes.
The Company covenants and agrees for the benefit of the Holders of the
Notes that it will duly and punctually pay the principal of and any premium
and interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on the Notes in accordance with the terms of the Notes and
this Indenture. The Company shall pay all Liquidated Damages, if any, in the
same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, and in each Place of Payment an office or agency (which may be an office
of the Trustee or an agent of the Trustee, Registrar or co-registrar) where
the Notes may be presented or surrendered for payment, where the Notes may be
surrendered for registration of transfer or exchange and where the Notes 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 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 with respect
to the Notes, it will, on or before each due date of the principal of or any
premium or interest on, or Liquidated Damages, if any, with respect to, 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 any premium and interest and
Liquidated Damages 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 of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any Notes,
it will, prior to each due date of the principal of or any premium or interest
on, or Liquidated Damages, if any, with respect to, any Notes, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any Notes 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) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Notes) in the making of any payment in respect of the Notes, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Notes.
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 or any premium or
interest on, or Liquidated Damages, if any, with respect to, any Note and
remaining unclaimed for two years after such principal, premium or interest or
Liquidated Damages 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 each Place of
Payment, 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. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year 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 this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1005. Existence.
Subject to Article VIII, 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 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 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary 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, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. 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 Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, could
reasonably be expected by law to become a lien upon the property of the
Company or any Subsidiary, unless the obligation secured by such lien is
otherwise permitted under Section 1008 hereof; 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 1008. Limitation on Liens.
(1) Except as otherwise provided in Section 1008(2), the Company shall
not, and shall not permit any Restricted Subsidiary to, issue, assume or
guarantee any Debt secured by a Lien upon any Principal Property of the
Company or of any Restricted Subsidiary or upon any shares of stock or Debt of
any Restricted Subsidiary (whether such Principal Property, shares of stock or
Debt are now owned or hereafter acquired) without in any such case effectively
providing concurrently with the issuance, assumption or guaranty of any such
Debt that the Notes (together with, if the Company shall so determine, any
other indebtedness of or guaranty by the Company or such Restricted Subsidiary
then existing or thereafter created which is not subordinate to the Notes)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) such Debt, so long as such Debt shall be so secured; provided,
however, that nothing in this Section 1008 shall prevent, restrict or apply to
(and there shall be excluded from secured Debt in any computation under this
Section 1008) Debt secured by:
(A) Liens on property, shares of stock or indebtedness of any
Corporation existing at the time such Corporation becomes a Restricted
Subsidiary or arising thereafter (i) otherwise than in connection with
the borrowing of money arranged thereafter and (ii) pursuant to
contractual commitments entered into prior to and not in contemplation
of such Corporation's becoming a Restricted Subsidiary;
(B) Liens on any property (including shares of stock or Debt)
existing at the time of acquisition thereof (including acquisition
through merger or consolidation) or securing the payment of all or any
part of the purchase price or construction cost thereof or securing any
Debt incurred prior to, at the time of or within 180 days after, the
acquisition of such property, shares of stock or Debt or the completion
of any such construction, whichever is later, for the purpose of
financing all or any part of the purchase price or construction costs
thereof (provided such Liens are limited to such property, improvements
thereon and the land upon which such property and improvements are
located and any other property not then constituting a Principal
Property);
(C) Liens on any property to secure all or any part of the cost
of development, operations, construction, alteration, repair or
improvement of all of any part of such property, or to secure Debt
incurred prior to, at the time of or within 180 days after, the
completion of such development, operation, construction, alteration,
repair or improvement, whichever is later, for the purpose of financing
all of any part of such cost (provided such Liens are limited to such
property, improvements thereon and the land upon which such property and
improvements are located and any other property not then constituting a
Principal Property);
(D) Liens which secure Debt owing by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary or by the Company to a
Restricted Subsidiary;
(E) Liens securing indebtedness of a Corporation which becomes
a successor of the Company or any Subsidiary in accordance with the
provisions of Article VIII;
(F) Liens on property of the Company or a Restricted Subsidiary
in favor of the United States of America or any state thereof, or any
department agency or instrumentality or political subdivision of the
United States of America or any State thereof, or in favor of any other
country or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction of the
property subject to such Liens, or in favor of any trustee or mortgagee
for the benefit of holders of indebtedness of any such entity incurred
for any such purpose;
(G) Liens existing at the date of this Indenture; and
(H) any extension, renewal or replacement (or successive
extension, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing Clauses (A) to (G), inclusive, or of any
Debt secured thereby; provided that such extension, renewal or
replacement Lien shall be limited to all or any part of the same property
that secured the Lien extended, renewed or replaced (plus any
improvements on such property) and shall secure no larger amount of Debt
than that existing at the time of such extension, renewal or replacement.
(2) Notwithstanding the foregoing provisions of this Section 1008, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by a Lien which would otherwise be subject to the
foregoing restrictions if at the time it does so (the "Incurrence Time") the
aggregate amount of such Debt plus all other Debt of the Company and its
Restricted Subsidiaries secured by a Lien which would otherwise be subject to
the foregoing restrictions (not including Debt permitted to be secured under
Clauses (A) through (H) of Section 1008(1)), plus the aggregate Attributable
Debt (determined as of the Incurrence Time) of Sale and Leaseback Transactions
(other than Sale and Leaseback Transactions permitted by Section 1009(1))
entered into after the date of this Indenture and in existence at the
Incurrence Time (less the aggregate amount of proceeds of such Sale and
Leaseback Transactions which shall have been applied in accordance with
Section 1009(3)), does not exceed 15% of Consolidated Net Tangible Assets.
Section 1009. Limitations on Sale and Leaseback Transactions.
The Company shall not itself, and shall not permit any Restricted
Subsidiary to, enter into any arrangements after the date of this Indenture
with any bank, insurance company or other lender or investor (other than the
Company or another Restricted Subsidiary) providing for the leasing as lessee
by the Company or by any such Restricted Subsidiary of any Principal Property
(except a lease for a temporary period not to exceed three years (inclusive of
renewals) by the end of which it is intended the use of such Principal
Property by the lessee will be discontinued), which was or is owned by the
Company or a Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or a Restricted Subsidiary more than 180 days after
the completion of construction and commencement of full operation thereof by the
Company or such Restricted Subsidiary, to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such Principal Property (herein called a "Sale and Leaseback
Transaction") unless:
(1) the Company or such Restricted Subsidiary would (at the time of
entering into such arrangement) be entitled pursuant to Clauses (A) through
(G) of Section 1009(1), without equally and ratably securing the Notes, to
issue, assume or guarantee indebtedness secured by a Lien on such Principal
Property; or
(2) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all other
Sale and Leaseback Transactions entered into after the date of this Indenture
(other than such Sale and Leaseback Transactions as are permitted by Section
1009(1) or (3)), plus the aggregate principal amount of Debt secured by Liens
on Principal Properties then outstanding (excluding any such Debt secured by
Liens covered in subdivisions (A) through (H) of Section 1008(1)) which do not
equally and ratably secure the Notes, would not exceed 15% of Consolidated Net
Tangible Assets; or (3) the Company, within 180 days after the sale or
transfer: (A) applies or causes a Restricted Subsidiary to apply an amount
equal to the greater of the net proceeds of such sale or transfer or the fair
market value of the Principal Property so sold and leased back at the time of
entering into such Sale and Leaseback Transaction (in either case as
determined by the Board of Directors) to the retirement of the Notes or other
indebtedness of the Company (other than indebtedness subordinated to the Notes)
or indebtedness of a Restricted Subsidiary, for money borrowed, having a stated
maturity more than 12 months from the date of such application or which is
extendible at the option of the obligor thereon to a date more than 12 months
from the date of such application, provided that the amount to be so applied
shall be reduced by (i) the principal amount of Notes delivered within 180
days after such sale or transfer to the Trustee for retirement and cancellation,
and (ii) the principal amount of any such indebtedness of the Company or a
Restricted Subsidiary other than Notes voluntarily retired by the Company or
a Restricted Subsidiary within 180 days after such sale or transfer; or (B)
invest an equal amount, or the amount not so applied pursuant to Clause (A) of
this Section 1009(2), in Additional Assets (including investments in
Additional Assets by a Restricted Subsidiary). Notwithstanding the foregoing, no
retirement referred to in this Section 1009(2) may be affected by payment at
Maturity.
Notwithstanding the foregoing, where the Company or any Restricted Subsidiary
is the lessee in any Sale and Leaseback Transaction, Attributable Debt shall
not include any Debt resulting from the guarantee by the Company or any other
Restricted Subsidiary of the lessee's obligation thereunder.
Section 1010. Additional Note Guarantees.
If the Company or any of its Subsidiaries acquires or creates another
Subsidiary after the date of the Indenture and that Subsidiary becomes a
guarantor or obligor under the Credit Facility, then the newly acquired or
created Subsidiary shall simultaneously become a Guarantor and execute a
supplemental indenture and deliver an Opinion of Counsel to the Trustee.
Section 1011. Waiver of Certain Covenants.
The Company may not in any particular instance comply with any term,
provision or condition set forth in any covenant provided pursuant to Section
901(2) for the benefit of the Holders of the Notes if before the time for such
compliance the Holders of at least 50% in principal amount of the Outstanding
Notes of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such
term, provision 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 term, provision or condition
shall remain in full force and effect.
ARTICLE XI
Redemption of Notes
Section 1101. Applicability of Article; Redemption Price.
The Notes shall be redeemable before their Stated Maturity at the option
of the Company at any time form time to time in accordance with their terms
and in accordance with this Article. The Redemption Price ("Redemption Price")
for the Notes to be redeemed shall be equal to the greater of (1) 100% of the
principal amount of the Notes to be redeemed or (2) the sum of the present
values of the Remaining Scheduled Payment on the Notes to be redeemed,
discounted, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months), at a rate equal to the sum of the applicable Treasury
Rate plus 30 basis points.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes 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 of such Redemption Date, of
the principal amount of the Notes to be redeemed and, if applicable, of the
tenor of the Notes to be redeemed.
Section 1103. 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 a portion of the
principal amount of any Note, provided that the unredeemed portion of the
principal amount of any Note shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Note.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption as aforesaid and, in case of any Notes selected for
partial redemption as aforesaid, 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 1104. 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 its address appearing in the Note
Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed, and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note.
(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,
(5) the name and address of the Paying Agent and the place or places
where each of the Notes is to be surrendered for payment of the Redemption
Price,
(6) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
Notice of redemption of the 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 and shall be
irrevocable. Any Company request to the Trustee to give such notice shall be in
the form of an Officer's Certificate setting forth the information to be stated
in such notice as provided in the preceding Clauses (1)-(7) of this Section
1104.
Section 1105. 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 and unpaid interest on, and any
unpaid Liquidated Damages with respect to all the Notes which are to be
redeemed on that date.
Section 1106. 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 the Redemption Date
(unless the Company shall default in the payment of the Redemption Price and
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 will 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 any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Note.
Section 1107. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (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 its 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 and of like tenor, 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 XII
Note Guarantees
Section 1201. Note Guarantees.
Subject to the provisions of Section 1204 hereof, each Guarantor hereby
jointly and severally, fully, unconditionally and irrevocably guarantees the
Notes and obligations of the Company hereunder and thereunder, and the
obligations of each other Guarantor hereunder and thereunder, and guarantees
to each Holder of a Note authenticated and delivered by the Trustee to the
Trustee on behalf of such Holder, that: (a) the principal of (and premium and
Liquidated Damages, if any) and the interest on the Notes will be paid in full
when due, whether at Stated Maturity, by acceleration, call for redemption or
otherwise (including, without limitation, the amount that would become due but
for the operation of the automatic stay for the operation of the automatic
stay under Section 362(a) of the Federal Bankruptcy Code), together with
interest on the overdue principal, if any, and interest on any overdue interest,
to the extent lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof, and (b) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations,
the same will be paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by acceleration
or otherwise. Each of the Note Guarantees shall be a guarantee of payment and
not of collection.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives the benefits of diligence, presentment,
demand for payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against
the Company or any other Person, protest, notice and all demands whatsoever
and covenants that the Note Guarantee of such Guarantor will not be discharged
as to any Note except by complete performance of the obligations contained in
such Note and such Note Guarantee or as provided for in this Indenture. Each of
the Guarantors hereby agrees that, in the event of a default in payment of
principal (or premium or Liquidated Damages, if any) or interest on such Note,
whether at its Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, legal proceedings may be instituted by the Trustee on behalf of,
or by, the Holder of such Note, subject to the terms and conditions set forth
in this Indenture, directly against each of the Guarantors to enforce such
Guarantor's Note Guarantee without first proceeding against the Company or any
other Guarantor. Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the
Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Notes, to collect interest on the
Notes, or to enforce or exercise any other right or remedy with respect to the
Notes, such Guarantor will pay to the Trustee for the account of the Holders,
upon demand therefor, the amount that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised by the Trustee or
any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Note Guarantee of each of the Guarantors, to the extent theretofore at, as
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees that, as between each Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article V hereof
for the purposes of the Note Guarantee of such Guarantor, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (2) in the event of any acceleration of
such obligations as provided in Article V hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of the Note Guarantee of such Guarantor.
Section 1202. Execution and Delivery of Note Guarantee.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Note Guarantee set forth in
this Indenture on behalf of each of the Guarantors.
Section 1203. Severability.
In case any provision of any Note Guarantee 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 1204. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of the Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law or the provisions of its
local law relating to fraudulent transfer or conveyance. To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Note
Guarantee shall be limited to the maximum amount that will not, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Note Guarantee, result in the
obligations of such Guarantor under its Note Guarantee constituting a fraudulent
transfer or conveyance.
Section 1205. Releases.
Any Guarantor will be released and relieved of any obligations under its
Note Guarantee, (i) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or consolidation) to a Person that is not (either before or after giving
effect to such transaction) a Restricted Subsidiary of the Company, if the sale
or other disposition of all or substantially all of the assets of that Guarantor
complies with the provisions of this Indenture, or (ii) in connection with any
sale of all of the Capital Stock of a Guarantor to a Person that is not
(either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, or (iii) upon dissolution or liquidation in
accordance with the provisions of this Indenture, or (iv) upon written request
by the Company to the Trustee, at such time as the Lenders under the Credit
Facility have unconditionally released such Guarantor from its obligations
(whether as primary obligor or guarantor) under the Credit Facility. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition or other
requirements set forth above was made by the Company or have occurred in
accordance with the provisions of this Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of any Guarantor
from its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
shall, subject to the provisions of Section 1204 hereof, remain liable for
the full amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article
XII.
Section 1206. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and
that its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
Section 1207. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantor agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under this
Guarantee, such Funding Guarantor shall be entitled, subject to Section 1204
hereof, to a contribution from all other Guarantors in a pro rata amount based
on the Net Assets (defined below) of each Guarantor (including the Funding
Guarantor) for all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's obligations with respect to the Notes
or any other Guarantor's Obligations with respect to this Guarantee. The term
"Net Assets" shall mean the amount by which the fair value of the properties
and assets of the referenced Guarantor exceeds the total amount of
liabilities, including contingent liabilities, but excluding liabilities under
such Guarantor's Note Guarantee.
Section 1208. Waiver of Subrogation.
Subject to the provisions of Section 1207 hereof, each Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company or other Guarantors that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations, under
this Guarantee and this Indenture, including, without limitation. any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Notes against the Company
or other Guarantors, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company or other Guarantors,
directly or indirectly, in cash or other property or by setoff or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Notes, and shall forthwith be
paid to the Trustee to be credited and applied in accordance with the terms of
this Indenture. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 1208 is knowingly made
in contemplation of such benefits.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to the Notes upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section 1302
applied to the Notes, the Company and the Guarantors shall be deemed to have
been discharged from their obligations with respect to such Notes and the Note
Guarantees as provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to
have satisfied all its other obligations under the Notes and this Indenture
insofar as the Notes are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of the 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 any premium and interest
on, and Liquidated Damages, if any, with respect to, the Notes when payments
are due, (2) the Company's obligations with respect to the Notes under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option to have this
Section applied to the Notes notwithstanding the prior exercise of its option
to have Section 1303 applied to the Notes.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option to have this Section 1303
applied to the Notes, (1) the Company shall be released from its obligations
under Section 801(3), Sections 1006 through 1009, inclusive, and any covenants
provided pursuant to Section 901(2) for the benefit of the Holders of the
Notes and (2) the occurrence of any event specified in Section 501(3) (with
respect to any of Section 801(3), Sections 1006 through 1009, inclusive, and any
such covenants provided pursuant to Section 901(2)) shall be deemed not to be or
result in an Event of Default, in each case with respect to the Notes as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that, with respect to the Notes,
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 (to the extent
so specified in respect of Section 501(3)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section 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 the application of Section 1302
or Section 1303 to any Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article 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 benefits of the Holders of the 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, in each case 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 any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on and Liquidated Damages, if any, with respect to, the Notes on the
Stated Maturity of the Notes, in accordance with the terms of this Indenture and
the Notes. As used herein, "U.S. Government Obligation" means (x) any security
which is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America is
pledged or (ii) an obligation 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 (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the account
of the holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government Obligation which is
so specified and held, 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to the
Notes, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax law,
in either case (A) or (B) to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Notes will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Notes and will be subject to
Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to the
Notes, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Notes will not recognize gain or loss
for Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to the Notes and will be subject to
Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were not to occur.
(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 be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Notes shall have occurred and
be continuing at the time of such deposit or, with regard to any such event
specified in Sections 501(5) and (6), at any time on or prior to the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 91st day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Notes are in default within the meaning of such Act).
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering or delaying or defrauding creditors of
the Company or others.
(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) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; 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 (solely for purposes of
this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as 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 the Notes and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of the Notes,
of all sums due and to become due thereon in respect of principal and any
premium and interest and Liquidated Damages, if any, but money so held in
trust need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the 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 Outstanding Notes.
Anything in this Article 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
with respect to the Notes 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 the Defeasance or Covenant
Defeasance, as the case may be, with respect to the Notes.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Notes by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Notes from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Notes, until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 1305 with respect to such Notes in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on, or any Liquidated Damages
with respect to, any such Note following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of the
Notes to receive such payment from the money so held in trust.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
INTERNATIONAL SPEEDWAY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X.Xxxxxxx
Title: Assistant Secretary
{Signatures Continue Next Page}
GUARANTORS
AMERICROWN SERVICE CORPORATION
COMPETITION TIRE SOUTH, INC.
COMPETITION TIRE WEST, INC.
ISC PROPERTIES, INC.
MOTORSPORT INTERNATIONAL
CORP.
NORTH CAROLINA SPEEDWAY, INC.
PENNSYLVANIA INTERNATIONAL
RACEWAY, INC.
REGIMENT, INC.
Each by its duly authorized officer:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Secretary
Of the Guarantors listed above
88 CORP.
CALIFORNIA SPEEDWAY CORPORATION
CHICAGO HOLDINGS, INC.
EVENT EQUIPMENT LEASING, INC.
EVENT SUPPORT CORPORATION
GREAT WESTERN SPORTS, INC.
MIAMI SPEEDWAY CORP.
MICHIGAN INTERNATIONAL SPEEDWAY,
INC.
NEW YORK INTERNATIONAL SPEEDWAY
CORP.
NORTH AMERICAN TESTING COMPANY
PHOENIX SPEEDWAY CORP.
ROCKY MOUNTAIN SPEEDWAY
CORPORATION
SEASONAL SERVICES, INC.
SOUTH CAROLINA INTERNATIONAL
SPEEDWAY CORPORATION
XXXXXXX XXXX INTERNATIONAL, INC.
Each by its duly authorized officer:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Assistant Secretary
Of the Guarantors listed above
{Signatures Continue Next Page}
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Trust Officer
EXHIBIT A
ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint, ____________________, agent to transfer this Note
on the books of the Company. The agent may substitute another to act for
him.
Date: ________________________ Sign:
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) October 6, 2001, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with
the transfer and that this Note is being transferred:
[Check One]
(1) to the Company or a subsidiary thereof; or
(2) pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) outside the United states to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(5) pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) pursuant to an effective registration statement under the
Securities Act; or
(7) pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any person other
than the registered Holder thereof, provided that if box (2),(3), (4), (5)
or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in its sole discretion, such
legal opinions, certifications (including an investment letter in the case
of box (3) or (4)) and other information as the Trustee or the Company has
reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 312 of the Indenture shall
have been satisfied.
Date: __________________ Signed:
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company
as the undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
Date: __________________ Signed:
Executive Officer
EXHIBIT B
ASSIGNMENT FORM
If you, the Holder, want to assign this Note. fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address
and zip code and social
security or tax ID number of
assignee)
and irrevocably appoint, ________________________, agent to transfer this
Note on the books of the Company. The agent may substitute another to act
for him.
Date: ___________________ Signed:
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investor
______________, _____
First Union National Bank
____________________________
____________________________
____________________________
Attention: Corporate Trust Department
Re: International Speedway Corporation (the "Company")
7 % Senior
Notes due 2004 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $____________ aggregate
principal amount of the Notes, we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated October 6, 1999, relating to the Notes and
such other information as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agreed to the matters stated
on page (ii) of the Offering Memorandum and in the section entitled "Notice
to Investors" of the Offering Memorandum, including the restrictions on
distribution of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of October 6, 1999 relating to the Notes (the "Indenture") and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered
or sold within the United States or to, or for the account or benefit of,
U.S. Persons except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated. that if we should sell or otherwise transfer any Notes
we will do so only (i) to the Company or any subsidiary thereof, (ii) inside
the United States in accordance with Rule 144A under the Securities Act to a
institutional buyer" (as defined in Rule 144A under the Securities Act),
(iii) inside the United States to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to you a signed letter containing
certain representatives and agreements relating to the restrictions on
transfer of the Notes, substantially in the form of this letter, (iv)
outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (v) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3
of the Employee Retirement Income Security Act of 1974), except as permitted
in the section entitled "Notice to Investors" of the Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certification, legal
opinions and other information as you and the Company may reasonably require
to confirm that the proposed sale complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a legend to
the foregoing effect.
6. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear
the economic risk of our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Company and the Initial Purchasers (as defined in the
Offering Memorandum); are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_____________, _____
First Union National Bank
____________________________
____________________________
____________________________
Attention: Corporate Trust Department
Re: International Speedway Corporation (the "Company")
7 % Senior Notes
due 2004 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Aa
of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
1. the offer of the Notes was not made to a person in the United
States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting-on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged with a
buyer in the United States;
3. no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
5. we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly- yours,
(Name of Transferor]
By:
Authorized Signature
