1
EXHIBIT 4.1
-------------------------------------------------------------------------------
PARK `N VIEW, INC.
SERIES A AND SERIES B
13% SENIOR NOTES DUE 2008
INDENTURE
--------------------------------------------
Dated as of May 27, 1998
--------------------------------------------
State Street Bank and Trust Company
Trustee
--------------------------------------------
2
CROSS-REFERENCE TABLE*
(a) Trust Indenture
Act Section Indenture Section
310 (a)(1)................................................................................................ 7.10
(a)(2) ................................................................................................... 7.10
(a)(3).................................................................................................... N.A.
(a)(4).................................................................................................... N.A.
(a)(5).................................................................................................... 7.10
(i)(b).................................................................................................... 7.10
(ii)(c)................................................................................................... N.A.
311(a).................................................................................................... 7.11
(b)....................................................................................................... 7.11
(iii)(c).................................................................................................. N.A.
312 (a)................................................................................................... 2.05
(b)...................................................................................................... 11.03
(iv)(c)...................................................................................................11.03
313(a).................................................................................................... 7.06
(b)(1)....................................................................................................10.03
(b)(2).................................................................................................... 7.07
(v)(c).................................................................................................... 7.06
(vi)(d)................................................................................................... 7.06
314(a).................................................................................................... 4.03
11.02
(A)(b)....................................................................................................10.02
(c)(1)....................................................................................................11.04
(c)(2)....................................................................................................11.04
(c)(3)....................................................................................................N.A.
(d)..................................................................................................... .10.03
10.04, 10.05
(vii)(e)..................................................................................................11.05
(f)....................................................................................................... NA
315 (a)....................................................................................................7.01
(b)....................................................................................................... 7.05
11.02
(A)(c).................................................................................................... 7.01
(e)....................................................................................................... 6.11
316 (a)(last sentence).................................................................................... 2.09
(a)(1)(A)................................................................................................. 6.05
(a)(1)(B)................................................................................................. 6.04
(a)(2).................................................................................................... N.A.
(b)....................................................................................................... 6.07
(B)(c).................................................................................................... 2.12
317 (a)(1)................................................................................................ 6.08
(a)(2).................................................................................................... 6.09
(b)....................................................................................................... 2.04
318 (a)...................................................................................................11.01
(b)....................................................................................................... N.A.
(c).......................................................................................................11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
3
TABLE OF CONTENTS
PAGE
----
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
SECTION 1.01. DEFINITIONS......................................................................................1
SECTION 1.02. OTHER DEFINITIONS...............................................................................14
SECTION 1.03..................................................................................................15
SECTION 1.04. RULES OF CONSTRUCTION...........................................................................15
ARTICLE 2. THE NOTES.............................................................................................16
SECTION 2.01. FORM AND DATING................................................................................16
SECTION 2.02. EXECUTION AND AUTHENTICATION....................................................................17
SECTION 2.03. REGISTRAR AND PAYING AGENT......................................................................17
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.............................................................17
SECTION 2.05. HOLDER LISTS....................................................................................18
SECTION 2.06. TRANSFER AND EXCHANGE...........................................................................18
SECTION 2.07. REPLACEMENT NOTES...............................................................................29
SECTION 2.08. OUTSTANDING NOTES...............................................................................30
SECTION 2.09. TREASURY NOTES..................................................................................30
SECTION 2.10. TEMPORARY NOTES.................................................................................30
SECTION 2.11. CANCELLATION....................................................................................31
SECTION 2.12. DEFAULTED INTEREST..............................................................................31
ARTICLE 3. REDEMPTION AND PREPAYMENT.............................................................................31
SECTION 3.01. NOTICES TO TRUSTEE..............................................................................31
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED...............................................................31
SECTION 3.03. NOTICE OF REDEMPTION............................................................................32
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION..................................................................32
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.....................................................................33
SECTION 3.06. NOTES REDEEMED IN PART..........................................................................33
SECTION 3.07. OPTIONAL REDEMPTION.............................................................................33
SECTION 3.08. MANDATORY REDEMPTION............................................................................34
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.............................................34
ARTICLE 4. COVENANTS.............................................................................................36
SECTION 4.01. PAYMENT OF NOTES................................................................................36
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.................................................................36
SECTION 4.03. REPORTS.........................................................................................36
SECTION 4.04. COMPLIANCE CERTIFICATE..........................................................................37
SECTION 4.05. TAXES...........................................................................................38
SECTION 4.06. STAY, EXTENSION AND USURY LAWS..................................................................38
SECTION 4.07. RESTRICTED PAYMENTS.............................................................................38
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES..................................40
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK...................................40
SECTION 4.10. ASSET SALES.....................................................................................42
SECTION 4.11. TRANSACTIONS WITH AFFILIATES....................................................................43
SECTION 4.12. LIENS...........................................................................................44
SECTION 4.13. LINE OF BUSINESS................................................................................44
SECTION 4.14. CORPORATE EXISTENCE.............................................................................44
i
4
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL......................................................44
SECTION 4.16. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS...................................................46
SECTION 4.17. LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN WHOLLY OWNED SUBSIDIARIES..............46
SECTION 4.18. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY SUBSIDIARIES...........................46
SECTION 4.19. LIMITATION ON STATUS AS INVESTMENT COMPANY......................................................47
SECTION 4.20. PAYMENTS FOR CONSENT............................................................................47
SECTION 4.21. SUBSIDIARY GUARANTEES..........................................................................47
SECTION 4.22. ESCROW AGREEMENT DEPOSIT........................................................................47
ARTICLE 5. SUCCESSORS............................................................................................47
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS........................................................47
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED...............................................................48
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................................48
SECTION 6.01. EVENTS OF DEFAULT...............................................................................48
SECTION 6.02. ACCELERATION....................................................................................50
SECTION 6.03. OTHER REMEDIES..................................................................................51
SECTION 6.04. WAIVER OF PAST DEFAULTS.........................................................................51
SECTION 6.05. CONTROL BY MAJORITY.............................................................................51
SECTION 6.06. LIMITATION ON SUITS.............................................................................51
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT...................................................52
SECTION 6.08. COLLECTION SUIT BY TRUSTEE......................................................................52
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM................................................................52
SECTION 6.10. PRIORITIES......................................................................................53
SECTION 6.11. UNDERTAKING FOR COSTS...........................................................................53
ARTICLE 7. TRUSTEE...............................................................................................53
SECTION 7.01. DUTIES OF TRUSTEE...............................................................................53
SECTION 7.02. RIGHTS OF TRUSTEE...............................................................................54
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE....................................................................55
SECTION 7.04. TRUSTEE'S DISCLAIMER............................................................................55
SECTION 7.05. NOTICE OF DEFAULTS..............................................................................55
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES......................................................55
SECTION 7.07. COMPENSATION AND INDEMNITY......................................................................56
SECTION 7.08. REPLACEMENT OF TRUSTEE..........................................................................57
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC................................................................58
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION...................................................................58
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............................................58
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................58
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE........................................58
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE..................................................................58
SECTION 8.03. COVENANT DEFEASANCE.............................................................................59
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE......................................................59
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS..................................................................60
SECTION 8.06. REPAYMENT TO COMPANY............................................................................61
SECTION 8.07. REINSTATEMENT...................................................................................61
ii
5
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................62
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.............................................................62
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES................................................................62
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.............................................................64
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS...............................................................64
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES................................................................64
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.................................................................64
ARTICLE 10. COLLATERAL AND SECURITY..............................................................................65
SECTION 10.01. ESCROW AGREEMENT...............................................................................65
SECTION 10.02. RECORDING AND OPINIONS.........................................................................65
SECTION 10.03. RELEASE OF COLLATERAL..........................................................................66
SECTION 10.04. CERTIFICATES OF THE COMPANY....................................................................66
SECTION 10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE ESCROW AGENT UNDER THE ESCROW AGREEMENT............67
SECTION 10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE ESCROW AGENT UNDER THE ESCROW AGREEMENT...............67
SECTION 10.07. TERMINATION OF SECURITY INTEREST...............................................................67
ARTICLE 11. MISCELLANEOUS........................................................................................67
SECTION 11.01. TRUST INDENTURE ACT CONTROLS...................................................................67
SECTION 11.02. NOTICES........................................................................................67
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES..................................69
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.............................................69
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..................................................69
SECTION 11.06. RULES BY TRUSTEE AND AGENTS....................................................................69
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.......................70
SECTION 11.08. GOVERNING LAW..................................................................................70
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..................................................70
SECTION 11.10. SUCCESSORS.....................................................................................70
SECTION 11.11. SEVERABILITY...................................................................................70
SECTION 11.12. INTERPRETATION OF SECURITY INTERESTS...........................................................70
SECTION 11.13. COUNTERPART ORIGINALS..........................................................................70
SECTION 11.14. TABLE OF CONTENTS, HEADINGS, ETC...............................................................71
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF ESCROW AGREEMENT
iii
6
INDENTURE dated as of May 27, 1998 between Park `N View, Inc.,
a Delaware corporation (the "Company"), and State Street Bank and Trust Company,
as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the 13%
Series A Senior Notes due 2008 (the "Series A Notes") and the 13% Series B
Senior Notes due 2008 (the "Series B Notes" and, together with the Series A
Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Note" means a global note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"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 purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 5% or more of the Voting Stock of a Person
shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory or services in the ordinary
course of business consistent with past practices (provided that the sale,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole shall be governed by Section 4.15
and/or Section 5.01 and not by Section 4.10 hereof), and (ii) the issue or sale
by the Company or any of its Subsidiaries of Equity Interests of
7
any of the Company's Subsidiaries, in the case of either clause (i) or (ii),
whether in a single transaction or a series of related transactions (a) that
have a Fair Market Value in excess of $1.0 million or (b) for net proceeds in
excess of $1.0 million. Notwithstanding the foregoing, the following items shall
not be deemed to be Asset Sales: (i) a transfer of assets by the Company to a
Wholly Owned Subsidiary or by a Wholly Owned Subsidiary to the Company or to
another Wholly Owned Subsidiary, (ii) an issuance of Equity Interests by a
Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary,
(iii) Permitted Revenue Sharing Agreements and (iv) a Restricted Payment that is
permitted by Section 4.07 hereof.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and demand deposits, in each case with any
domestic commercial bank having capital and surplus in excess of $500 million
and a Xxxxxxxx Bank Watch Rating of "B" or better, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper having the highest rating obtainable from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Corporation and in each case maturing within
six months after the date of acquisition and (vi) money market funds at least
2
8
95% of the assets of which constitute Cash Equivalents of the kinds described in
clauses (i) - (v) of this definition.
"Change of Control" means the occurrence of any of the
following: (i) the sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act); (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company; (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than the Principals and their
Related Parties, becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person," such "person" shall be deemed
to have beneficial ownership of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
40% of the Voting Stock of the Company (measured by voting power rather than
number of shares); or (iv) the first day on which a majority of the members of
the Board of Directors of the Company are not Continuing Directors.
"Closing Date" means the closing date for the sale and
original issuance of the Notes under this Indenture.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or non-voting) of such Person's common shares.
"Company" means Park `N View, Inc., a Delaware corporation,
and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale, to the extent such losses were deducted in
computing such Consolidated Net Income, plus (ii) provision for taxes based on
income or profits of such Person and its Subsidiaries for such period, to the
extent that such provision for taxes was deducted in computing such Consolidated
Net Income, plus (iii) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Subsidiaries for such period to the extent that
such depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, minus (v) non-cash items
3
9
increasing such Consolidated Net Income for such period (other than items that
were accrued in the ordinary course of business), in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash expenses of, a Subsidiary of
the Company shall be added to Consolidated Net Income to compute Consolidated
Cash Flow of the Company only to the extent that a corresponding amount would be
permitted at the date of determination to be dividended to the Company by such
Subsidiary without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"Consolidated Indebtedness" means, with respect to any Person
as of any date of determination, the aggregate amount of Indebtedness and the
liquidation preference of the Disqualified Stock of such Person and its
Subsidiaries outstanding as of such date of determination, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Subsidiary or that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or distributions
paid in cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii)
the Net Income of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that Net Income is not at the date of determination permitted without any
prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded and (iv) the cumulative effect of
a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the consolidated equity of the common stockholders
of such Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of this Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this
4
10
Indenture or (ii) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Facility" means one or more credit agreements, loan
agreements or similar agreements providing for working capital advances, term
loans, letter of credit facilities or similar advances, loans or facilities to
the Company, which may, pursuant to the terms of this Indenture, be guaranteed
by the Subsidiaries, with a bank or syndicate of banks or other financial
institutions, as such may be amended, renewed, extended, supplemented,
refinanced and replaced or refunded from time to time.
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Debt to Cash Flow Ratio" means, as of any date of
determination, the ratio of (a) the Consolidated Indebtedness of the Company as
of such date to (b) two times the Consolidated Cash Flow of the Company for the
two most recent full fiscal quarters ending immediately prior to such date for
which internal financial statements are available, determined on a pro forma
basis after giving effect to all acquisitions or dispositions of assets made by
the Company and its Subsidiaries from the beginning of such two-quarter period
on an annualized basis through and including such date of determination
(including any related financing transactions) as if such acquisitions and
dispositions had occurred at the beginning of such two-quarter period. In
addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the two-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the two-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
5
11
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature; provided, however, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Escrow Agent" means State Street Bank and Trust Company and
any successor thereto in accordance with the terms of the Escrow Agreement.
"Escrow Agreement" means the Pledge, Escrow and Disbursement
Agreement dated as of the date of this Indenture and substantially in the form
attached as Exhibit G hereto, as such agreement may be amended, modified or
supplemented from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Exercise Date" means at any time on or after the Separation
Date and prior to May 15, 2008.
"Existing Indebtedness" means up to $400,000 in aggregate
principal amount of Indebtedness of the Company and its Subsidiaries in
existence on the date of this Indenture, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and informed
and willing buyer under no compulsion to buy; provided that in each case in
which the Fair Market Value of an item is determined to be greater than
$500,000, such determination shall be evidenced by a resolution of a majority of
the disinterested members of the Board of Directors; and provided, further, that
in each case in which the Fair Market Value of an item is determined to be
greater than $5.0 million, such determination shall be evidenced by the written
opinion of nationally recognized appraisal, accounting or investment banking
firm.
6
12
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Notes" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"Guarantee" means a guarantee (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), of all or any part of any Indebtedness.
"Guarantor" means a Subsidiary that executes and delivers a
Guarantee of the Notes.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all Indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
7
13
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchaser" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation and any successor thereto.
"Initial Public Equity Offering" means an underwritten public
offering of Common Stock of the Company pursuant to an effective registration
statement filed under the Securities Act that results in $25.0 million or more
of gross cash proceeds to the Company.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding (i) commission,
travel and similar advances to officers and employees (ii) accounts receivable
arising in respect of services rendered to unaffiliated third parties, in each
case, made in the ordinary course of business), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company shall be deemed to have made an Investment on the date of any such sale
or disposition equal to the Fair Market Value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in the
final paragraph of Section 4.07 hereof.
"Issue Date" means the closing date for the sale and original
issuance of the Notes under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or in the city in which the
principal corporate trust office of the Trustee is located or at a place of
payment are authorized by law, regulation or executive order to remain closed.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
8
14
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions) or
(b) the disposition of any securities by such Person or any of its Subsidiaries
or the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness under a Credit Facility) secured by a Lien on the asset
or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Offering Memorandum" means that certain final Offering
Memorandum, dated May 20, 1998 with respect to the Company's offering of the
Notes.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Sections 11.04 and 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Sections
11.04 and 11.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
9
15
"Participant" means a Person who has an account with the
Depositary.
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means the provision of: (a) the following
services or products (i) voice, enhanced data, data, internet, video, wire or
wireless and other telecommunications related services, (ii) local, dedicated
access, closed circuit, or satellite delivered network, cable or wired or
wireless television or similar or related television services or (iii) other
services including, but not limited to, (A) load matching, home shopping and
games; (B) payment processing, transmissions and card processing transmissions,
(C) facsimile transmissions and load matching, (D) advertising to: (b) the
following customer base: fleet trucking companies, truckstops, individual truck
drivers, others in or related to the long-haul trucking industry, and others
interested in purchasing the products and services described in the Offering
Memorandum, and all products and services ancillary, similar or related thereto.
"Permitted Investments" means (a) any Investment in the
Company or in a Wholly Owned Subsidiary of the Company; (b) any Investment in
Cash Equivalents; (c) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person becomes a
Wholly Owned Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Wholly Owned
Subsidiary of the Company; (d) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof; and (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company.
"Permitted Joint Venture" means any Person engaged in a
Telecommunications or Entertainment Business.
"Permitted Liens" means (i) Liens securing Indebtedness and
other Obligations under a Credit Facility that were permitted by the terms of
this Indenture to be incurred; (ii) Liens in favor of the Company or any of its
Subsidiaries; (iii) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any Subsidiary
of the Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition; (v) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of Section 4.09
provided that such Liens only cover the assets permitted to be acquired by such
Indebtedness; (vii) Liens to secure Permitted Refinancing Indebtedness, provided
that such Liens only cover the same assets that were covered under the
Indebtedness being refinanced; (viii) Liens existing on the date of this
Indenture; (ix) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; and (x) Liens incurred in
the ordinary
10
16
course of business of the Company or any Subsidiary of the Company with respect
to obligations that do not exceed $5.0 million at any one time outstanding and
that (a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary course
of business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Subsidiaries (other than
intercompany Indebtedness); provided that: (i) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Permitted Revenue Sharing Agreements" means (i) all
agreements that the Company has entered into as of the date of this Indenture
with truckstop locations and/or truckstop chains to provide the PNV Network and
(ii) any agreements or arrangements that the Company enters into after the date
of this Indenture to provide services through the PNV Network which are entered
into in the ordinary course of business consistent with past practice or are
approved by the Board of Directors; provided that if such agreements or
arrangements provide for more than 50% of the gross income or net revenues,
gross profits, operating cash flow, operating income, earnings before interest,
taxes, depreciation and amortization ("EBITDA") or similar measure of financial
performance to be paid to any entity other than the Company or its Subsidiaries,
the Board of Directors shall be required to approve such contract.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Pledged Collateral" means any assets of the Company defined
as Collateral in the Escrow Agreement.
"PNV Network" means the Company's integrated
telecommunications and entertainment network currently capable of providing
voice, data and cable television services to long-haul truck drivers in the
convenience and privacy of their trucks while parked at truckstops.
11
17
"Principals" means Patricof & Co. Ventures, Inc. and its
affiliated entities, State of Michigan Retirement System, Xxxxx X. Xxxxxxx,
Xxxxx Xxxxxxxx Xxxxxxx and X. X. Xxxxxxxxxxxx and their affiliated entities, Xxx
Xxxxxxx, MPN Holdings, Inc. and Xxx Xxxxxxxx.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 27, 1998, 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.
"Related Party" with respect to any Principal means (A) any
controlling stockholder, 70% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding a 70% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation Date" means the earliest of (i) 180 days following
the Closing Date, (ii) the date on which the Exchange Offer Registration
Statement is declared effective under the Securities Act,
12
18
(iii) the date on which the Shelf Registration Statement is declared effective
under the Securities Act, (iv) such date as the Initial Purchaser shall
determine and (v) in the event a Change of Control occurs, the date the Company
mails the required notice thereof to the Note holders.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" shall mean the joint and several
Guarantee by the Subsidiaries of the Company's obligations under the Notes, in
substantially the form of such Subsidiary Guarantee attached as Exhibit E to
this Indenture.
"Telecommunications or Entertainment Business" means the
provision of: (i) voice, enhanced data, data, internet, wireless and other
telecommunications related services, (ii) local, dedicated access, closed
circuit or satellite delivered network, cable or wireless television or similar
or related television services or (iii) other services including but not limited
to (A) load matching, home shopping and games for the drivers, (B) payment
processing transmissions and card processing transmissions and load matching for
fleets or (C) advertising for fleets, local and/or regional businesses.
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Global Note" means a permanent global Note in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests
13
19
in the Global Note" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of Notes
that do not bear the Private Placement Legend.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"U.S. Government Obligations" means (x) securities that are
(i) direct obligations 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)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which in either case, are not callable or redeemable at the
option of the issuer thereof, and (y) depository receipts 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 depository receipt, or with
respect to any specific payment of principal 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 depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of Capital Stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the Board of Directors or comparable body of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
14
20
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"................................................... 4.11
"Asset Sale Offer"........................................................ 3.09
"Authentication Order".................................................... 2.02
"Change of Control Offer"................................................. 4.15
"Change of Control Payment"............................................... 4.15
"Change of Control Payment Date" ......................................... 4.15
"Covenant Defeasance"..................................................... 8.03
"DTC"..................................................................... 2.03
"Event of Default"........................................................ 6.01
"Excess Proceeds"......................................................... 4.10
"Guaranteed Debt"......................................................... 4.18
"incur"................................................................... 4.09
"Investment Company Act".................................................. 4.19
"Legal Defeasance" ....................................................... 8.02
"Offer Amount"............................................................ 3.09
"Offer Period"............................................................ 3.09
"Paying Agent"............................................................ 2.03
"Payment Default"......................................................... 6.01
"Permitted Debt".......................................................... 4.09
"Purchase Date"........................................................... 3.09
"Registrar"............................................................... 2.03
"Restricted Payments"..................................................... 4.07
"Unit Legend"............................................................. 2.06
SECTION 1.03.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees, if any,
means the Company and the Guarantors, if any, respectively, and any successor
obligor upon the Notes and the Subsidiary Guarantees, if any, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
15
21
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act or the TIA shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time
to time.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
16
22
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers (an "Authentication Order"), authenticate Notes for original
issue up to the aggregate principal amount stated in paragraph 4 of the Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the
17
23
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be exchanged by the
Company for Definitive Notes if (i) the Company delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set
18
24
forth in the Private Placement Legend. Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives from the transferor a certificate in the form of Exhibit
B hereto, including the certifications in item (1) thereof, if the
transferee will take delivery in the form of a beneficial interest in the
144A Global Note.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
19
25
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to
a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item
(3) thereof;
and, in each such case set forth in this subparagraph (D), if the
Company or the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
20
26
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than
those listed in subparagraphs (B) or (C) above, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (2) thereof, if applicable;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount; provided, that,
the Company or the Registrar shall be entitled to request an Opinion of
Counsel with respect to transfers pursuant to any of the preceding
paragraphs (A) through (F). Any Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a
21
27
Person participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Definitive Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to
a Person who shall take delivery thereof in the form of a Definitive
Note that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
22
28
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(D) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) or (C) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(E) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note; provided, that, the Company
or the Registrar shall be entitled to request an Opinion of Counsel
with respect to transfers pursuant to any of the preceding paragraphs
(A) through (F).
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an
23
29
exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Company or the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
24
30
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof; and
(B) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (2) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(d) thereof; or
25
31
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions
from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE
26
32
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT OR (c) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE OR THE WARRANT AGENT, AS
APPLICABLE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE OR THE
WARRANT AGENT, AS APPLICABLE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION
OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b), (c) or (d) BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
27
33
(iii) Unit Legend. Each Note issued prior to the Separation Date shall
bear the following legend (the "Unit Legend") on the face thereof:
"THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSIST OF $1,000 PRINCIPAL
AMOUNT OF THE NOTES AND ONE (1) WARRANT (THE "WARRANTS") INITIALLY
ENTITLING THE HOLDER THEREOF TO PURCHASE 6.73833 SHARES, PAR VALUE
$.001 PER SHARE, OF THE COMPANY. PRIOR TO THE CLOSE OF BUSINESS UPON
THE EARLIEST TO OCCUR OF (I) 180 DAYS FOLLOWING THE CLOSING DATE, (II)
THE DATE ON WHICH THE EXCHANGE OFFER REGISTRATION STATEMENT IS DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (III) THE DATE ON WHICH THE SHELF
REGISTRATION STATEMENT IS DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(IV) SUCH DATE AS THE INITIAL PURCHASER SHALL DETERMINE AND (V) IN THE
EVENT A CHANGE OF CONTROL OCCURS, THE DATE THE COMPANY MAILS THE
REQUIRED NOTICE THEREOF TO THE NOTE HOLDERS, THE NOTES EVIDENCED BY
THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM,
BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS."
(iv) Original Issue Discount Legend. Each Note shall bear a legend in
substantially the following form:
"FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER,
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH
$1,000 PRINCIPAL AMOUNT OF THIS SECURITY, (1) THE ISSUE PRICE IS $938;
(2) THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS $62; (3) THE ISSUE
DATE IS MAY 27, 1998; AND (4) THE YIELD TO MATURITY (COMPOUNDED
SEMI-ANNUALLY) IS 14.1778%."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
28
34
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the
29
35
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive or certificated Notes but may have
variations that the Company considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
30
36
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. 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. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate, provided that no Notes of $1,000 or less shall be redeemed in part.
In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to
31
37
be redeemed. Notes and portions of Notes selected shall be in amounts of $1,000
or whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) 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;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) 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.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
32
38
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07, the Notes
will not be redeemable at the Company's option prior to May 15, 2003.
Thereafter, the Notes will be subject to redemption at any time at the option of
the Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on May 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003................................................................. 106.500%
2004................................................................. 104.333%
2005................................................................. 102.167%
2006 and thereafter.................................................. 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.07, any time after the Issue Date and prior to May 15, 2001, the Company, at
its option, may redeem up to 35% of the then outstanding Notes with the net
proceeds of an Initial Public Equity Offering of the Company at a redemption
price of 113.0% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon, to the date of redemption;
provided that at least 65% in aggregate principal amount of Notes originally
issued remain outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company, its subsidiaries and its Affiliates); and
provided,
33
39
further, that such redemption shall occur within 60 days of the date of the
closing of such Initial Public Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
Except as set forth in Sections 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory redemption payments or sinking
fund payments with respect to the Notes.
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrete or accrue interest after the Purchase Date;
34
40
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee, upon written request from the Company shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Asset Sale Offer on the
Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
35
41
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall 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.
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 shall
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.
The Company hereby designates the corporate trust office
located at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx Xxx Xxxx 00000 of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03 REPORTS.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a "Management's
Discussion and Analysis
36
42
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed with
the SEC on Form 8-K if the Company were required to file such reports, in each
case within the time periods specified in the SEC's rules and regulations. In
addition, following the consummation of the Exchange Offer, whether or not
required by the rules and regulations of the SEC, the Company shall file a copy
of all such information and reports with the SEC for public availability within
the time periods specified in the SEC's rules and regulations (unless the SEC
will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all times
comply with TIA ss. 314(a).
(b) For so long as any Notes remain outstanding, the Company and
the Guarantors, if any, shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and the Escrow Agreement, and further stating,
as to each such Officer signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and the Escrow Agreement and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture or the Escrow Agreement (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
37
43
SECTION 4.05 TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07 RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any of its
Subsidiaries) or to the direct or indirect holders of the Company's or any of
its Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or to the Company or a Subsidiary of the Company); (ii)
purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the
Company) any Equity Interests of the Company or any direct or indirect parent of
the Company or other Affiliate of the Company (other than any such Equity
Interests owned by the Company or any Wholly Owned Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes (other than Notes), except a payment of interest or principal at
Stated Maturity and reasonable fees and expenses incurred in connection
therewith; or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the two most recent fiscal quarters ending immediately
prior to the date of such Restricted Payment for which financial statements are
available, have been permitted to incur at least $1.00 of additional
Indebtedness (other than Permitted Debt) pursuant to the Debt to Cash Flow Ratio
test set forth in the first paragraph of Section 4.09; and
38
44
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Subsidiaries after the
date of this Indenture (excluding Restricted Payments permitted by clauses (ii),
(iii) and (iv) of the next succeeding paragraph), is less than the sum, without
duplication, of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first fiscal
quarter commencing after the date of this Indenture to the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds received by the Company since the date of
this Indenture as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified Stock) or
from the issue or sale of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than Equity Interests
(or Disqualified Stock or convertible debt securities) sold to a Subsidiary of
the Company), plus (iii) to the extent that any Restricted Investment that was
made after the date of this Indenture is sold for cash or otherwise liquidated
or repaid for cash, the lesser of (A) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if any) and (B) the
initial amount of such Restricted Investment.
So long as no Default has occurred and is continuing or would
be caused thereby, the foregoing provisions shall not prohibit (i) the payment
of any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any pari passu or subordinated Indebtedness or Equity Interests
of the Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of,
other Equity Interests of the Company (other than any Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (c) (ii) of the preceding paragraph; (iii) the
defeasance, redemption, repurchase or other acquisition of pari passu or
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a
Subsidiary of the Company to the holders of its common Equity Interests on a pro
rata basis; (v) Investments by the Company or any of its Subsidiaries in any
Permitted Joint Venture; provided that the aggregate Fair Market Value of all
such Investments does not exceed $5.0 million at any one time outstanding (with
the Fair Market Value of each Investment being measured at the time made and
without giving effect to subsequent changes in value); (vi) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any Subsidiary of the Company held by any employee or any
member of the Company's (or any of its Subsidiaries') management pursuant to any
management or employee equity subscription or purchase agreement or stock option
agreement in effect as of the date of this Indenture; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $500,000 in any twelve-month period; and (vii)
additional Investments having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (vii) that are at the
time outstanding, not exceeding $2.0 million (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value).
Except to the extent specifically provided to the contrary
herein, the amount of all Restricted Payments (other than cash) shall be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair
Market Value of any assets
39
45
or securities that are required to be valued by this Section 4.07 shall be based
upon: (i) an Officer's Certificate delivered to the Trustee if such Fair Market
Value is less than or equal to $500,000; (ii) the resolution of a majority of
the disinterested members of the Board of Directors whose resolution with
respect thereto shall be delivered to the Trustee, if such Fair Market Value is
greater than $500,000 but less than $5.0 million; and (iii) an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing, if such Fair Market Value is equal to or exceeds $5.0
million. Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed, together with any
other documents required by this Indenture.
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to (i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2) with respect
to any other interest or participation in, or measured by, its profits, or (b)
pay any indebtedness owed to the Company or any of its Subsidiaries, (ii) make
loans or advances to the Company or any of its Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Subsidiaries.
However, the foregoing restrictions shall not apply to encumbrances or
restrictions existing under or by reason of (a) Existing Indebtedness as in
effect on the date of this Indenture, (b) this Indenture and the Notes, (c)
applicable law, (d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred, (e) customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (f) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired, (g) any
agreement for the sale or other disposition of a Subsidiary that restricts
distributions by that Subsidiary pending its sale or other disposition, (h)
Permitted Refinancing Indebtedness, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being refinanced, (i) Liens securing Indebtedness otherwise
permitted to be incurred pursuant to Section 4.12 that limit the right of the
Company or any of its Subsidiaries to dispose of the assets subject to such
Lien, (j) provisions with respect to the disposition or distribution of assets
or property in joint venture agreements and other similar agreements entered
into in the ordinary course of business and (k) restrictions on cash or other
deposits or net worth imposed by customers under contracts entered into in the
ordinary course of business.
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its
40
46
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock if the Company's Debt to Cash Flow Ratio at the time of
incurrence of such Indebtedness or the issuance of such Disqualified Stock,
after giving pro forma effect to such incurrence or issuance as of such date and
to the use of proceeds therefrom as if the same had occurred at the beginning of
the most recently ended two full fiscal quarter period of the Company for which
internal financial statements are available, would have been no greater than 5
to 1.
The provisions of the first paragraph of this Section 4.09 will
not apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt") so long as no Default shall have occurred and
be continuing or would be caused thereby:
(i) the incurrence by the Company of no more than $10.0 million in
connection with a Credit Facility at any one time outstanding; provided
that the amount of Indebtedness permitted to be incurred pursuant to this
clause (i) shall be reduced by the amount of all Net Proceeds of Asset
Sales applied to repay Indebtedness under a Credit Facility pursuant to
Section 4.10;
(ii) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the
Notes and the Exchange Notes;
(iv) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money or similar obligations, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
Permitted Business, in an aggregate principal amount not to exceed $10.0
million at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new
Subsidiary; provided that such Indebtedness was incurred by the prior
owner of such assets or such Subsidiary prior to such acquisition by the
Company or one of its Subsidiaries and was not incurred in connection
with, or in contemplation of, such acquisition by the Company or one of
its Subsidiaries; and provided further that the principal amount (or
accreted value, as applicable) of such Indebtedness, together with any
other outstanding Indebtedness incurred pursuant to this clause (v) and
any Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (v), does not
exceed $5.0 million;
(vi) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be
incurred under the first paragraph hereof or clauses (i), (ii), (v) or (x)
of this paragraph;
(vii) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Subsidiaries; provided, however, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (ii)(A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held
41
47
by a Person other than the Company or a Subsidiary thereof and (B) any
sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Wholly Owned Subsidiary thereof shall be deemed,
in each case, to constitute an incurrence of such Indebtedness by the
Company or such Subsidiary, as the case may be, that was not permitted by
this clause (vii);
(viii) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(ix) the guarantee by the Company or any of its Subsidiaries of
Indebtedness of the Company or a Subsidiary of the Company that was
permitted to be incurred by another provision of this Section 4.09; and
(x) the incurrence by the Company or any of its Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (x), not to exceed $5.0
million.
The Company shall not incur any Indebtedness (including Permitted
Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company unless such Indebtedness is also contractually
subordinated in right of payment to the Notes on substantially identical terms;
provided, however, that no Indebtedness of the Company shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in
the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in clauses (i) through (x)
above as of the date of incurrence thereof, or is entitled to be incurred
pursuant to the first paragraph of this Section 4.09 as of the date of
incurrence thereof, the Company shall, in its sole discretion, classify such
item of Indebtedness on the date of its incurrence in any manner that complies
with this Section 4.09 and may treat revolving credit Indebtedness incurred in
accordance with the first paragraph of this Section 4.09, as being incurred in
its entire committed (whether or not at the time drawn) amount at the date on
which the initial borrowing thereunder is made. Accrual of interest, accretion
or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09.
SECTION 4.10 ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Subsidiary, as the case may be) receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value (as determined in accordance with
Section 4.10(c) hereof) of the assets or Equity Interests issued or sold or
otherwise disposed of and (ii) at least 85% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash; provided that
the amount of (x) any liabilities (as shown on the Company's or such
Subsidiary's
42
48
most recent balance sheet), of the Company or any Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Company
or such Subsidiary from further liability and (y) any securities, notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are contemporaneously (subject to ordinary settlement periods) converted by
the Company or such Subsidiary into cash (to the extent of the cash received),
shall be deemed to be cash for purposes of this provision.
(b) Within 180 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds to (a) to repay Indebtedness
under a Credit Facility, (b) acquire all or substantially all of (1) the assets
of, or a majority of the Voting Stock of, a Person engaged in a
Telecommunications or Entertainment Business or (2) the assets of a line of
business of a Person engaged in the Telecommunications or Entertainment
Business; provided that such assets relate to the Telecommunications or
Entertainment Business; or (c) to make a capital expenditure or otherwise
acquire other long-term assets that are used or useful in a Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company
shall be required to make an Asset Sale Offer to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase, in accordance with the procedures set forth in Section 3.09 hereof.
To the extent that any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes tendered into such Asset Sale Offer surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.
(c) The determination of the Fair Market Value of any Asset Sale
shall be based upon: (i) an Officer's Certificate delivered to the Trustee if
such Fair Market Value is less than or equal to $500,000; (ii) the resolution of
a majority of the disinterested members of the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee, if such Fair
Market Value is greater than $500,000 but less than $5.0 million; and (iii) an
opinion or appraisal issued by an accounting, appraisal or investment banking
firm of national standing, if such Fair Market Value is equal to or exceeds $5.0
million. Not later than the date of making any Asset Sale, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Asset Sale is
permitted and setting forth the basis upon which the calculations required by
this Section 4.10 were computed, together with any other documents required by
this Indenture.
SECTION 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing,
43
49
an "Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the fairness
to the Holders of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing. Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions: (i) any employment agreement entered into by the
Company or any of its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Subsidiary, (ii)
transactions between or among the Company and/or its Subsidiaries, (iii) payment
of reasonable directors fees to Persons who are not otherwise Affiliates of the
Company, (iv) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company, and (v) Restricted Payments that are
permitted by Section 4.07.
SECTION 4.12 LIENS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens.
SECTION 4.13 LINE OF BUSINESS.
The Company shall not, and shall not permit any Subsidiary to,
engage in any business other than Permitted Businesses, except to such extent as
would not be material to the Company and its Subsidiaries taken as a whole.
SECTION 4.14 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to each Holder to repurchase all or
any part (equal to $1,000 or an integral
44
50
multiple thereof) of each Holder's Notes at an offer price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase (the "Change of
Control Payment"). Within ten days following any Change of Control, the Company
shall mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and stating: (1) that the Change of
Control Offer is being made pursuant to this Section 4.15 and that all Notes
tendered will be accepted for payment; (2) the purchase price and the purchase
date, which shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date"); (3) that any
Note not tendered will continue to accrue interest; (4) that, unless the Company
defaults in the payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date; (5) that Holders electing to have any
Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; (6) that Holders will be entitled
to withdraw their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(c) The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
45
51
SECTION 4.16 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Subsidiaries to, enter into any Sale and Leaseback Transaction; provided that
the Company or any of its Subsidiaries may enter into a Sale and Leaseback
Transaction if (i) the Company or such Subsidiary, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt relating to
such sale and leaseback transaction pursuant to either (1) the Debt to Cash Flow
test set forth in the first paragraph of Section 4.09 hereof or (2) clause (iv)
of the second paragraph of Section 4.09 hereof and (b) incurred a Lien to secure
such Indebtedness pursuant to Section 4.12 hereof, (ii) the gross cash proceeds
of such sale and leaseback transaction are at least equal to the Fair Market
Value of the property that is the subject of such sale and leaseback transaction
and (iii) the transfer of assets in such sale and leaseback transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
SECTION 4.17 LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN WHOLLY
OWNED SUBSIDIARIES.
The Company (i) shall not, and shall not permit any Subsidiary of
the Company to, transfer, convey, sell, lease or otherwise dispose of any Equity
Interests in any Wholly Owned Subsidiary of the Company to any Person (other
than the Company or a Wholly Owned Subsidiary of the Company), unless (a) such
transfer, conveyance, sale, lease or other disposition is of all the Equity
Interests in such Wholly Owned Subsidiary and (b) the cash Net Proceeds from
such transfer, conveyance, sale, lease or other disposition are applied in
accordance with Section 4.10 hereof and (ii) will not permit any Wholly Owned
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly Owned Subsidiary of
the Company; provided that the provisions of this Section 4.17 shall not apply
to Investments by the Company in Subsidiaries that are made in accordance with
clause (iv) of the Section 4.07 hereof.
SECTION 4.18 LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES.
The Company shall not permit any Subsidiary, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company ("Guaranteed Debt") unless each such Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for the Guarantee of the payment of the Notes by such Subsidiary,
which Guarantee shall be (i) if the Notes or the Guarantee of such Subsidiary is
subordinated in right of payment to the Guaranteed Debt, the Guarantee under the
supplemental indenture shall be subordinated to such Subsidiary's guarantee with
respect to the Guaranteed Debt substantially to the same extent as the Notes or
the Guarantee are subordinated to the Guaranteed Debt under this Indenture; or
(ii) if the Guaranteed Debt is by its express terms subordinated in right of
payment to the Notes or the Guarantee of such Subsidiary, any such guarantee of
such Subsidiary with respect to the Guaranteed Debt shall be subordinated in
right of payment to such Subsidiary's Guarantee with respect to the Notes
substantially to the same extent as the Guaranteed Debt is subordinated to the
Notes or the Guarantee of such Subsidiary. Notwithstanding the foregoing, any
such Guarantee by a Subsidiary of the Notes shall provide by its terms that it
shall be automatically and unconditionally released and discharged upon any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
all of the Company's stock in, or all or substantially all the assets of, such
Subsidiary, which sale, exchange or transfer is made in compliance
46
52
with the applicable provisions of this Indenture. The form of such Guarantee is
attached as Exhibit E hereto.
SECTION 4.19 LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company shall not, and shall not permit any of its
Subsidiaries to, conduct its business in a fashion that would cause the Company
to be required to register as an "investment company" (as that term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act")), or otherwise become subject to regulation under the Investment Company
Act. For purposes of establishing the Company's compliance with this provision,
any exemption which is or would become available under Section 3 (c) (1) or
Section 3 (c) (7) of the Investment Company Act will be disregarded.
SECTION 4.20 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.21 SUBSIDIARY GUARANTEES.
If the Company or any of its Subsidiaries shall acquire or create
another Subsidiary after the date of this Indenture, then such newly acquired or
created Subsidiary shall become a Guarantor by executing a Supplemental
Indenture in the form attached hereto as Exhibit F and deliver an Opinion of
Counsel to the Trustee to the effect that such Supplemental Indenture has been
duly authorized, executed and delivered by such Subsidiary and constitutes a
valid and binding obligation of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms (subject to customary exceptions).
SECTION 4.22 ESCROW AGREEMENT DEPOSIT.
Upon consummation of the initial sale of the Notes offered hereby
on the date hereof, the Company will deposit $19,175,000 of the net proceeds
from the sale of the Notes, in the Escrow Account with the Trustee. The Escrow
Account shall be governed by the terms of the Escrow Agreement attached as
Exhibit G hereto.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
convey or otherwise dispose of all or substantially all of its properties or
assets, in one or more related transactions, to another Person unless (i) the
Company is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other
47
53
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, transfer,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Registration Rights Agreement, the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; (iii) immediately after such transaction no Default or Event of
Default exists; and (iv) except in the case of a merger of the Company with or
into a Wholly Owned Subsidiary of the Company, the Company or the Person formed
by or surviving any such consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other disposition shall
have been made (A) shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (B) shall, immediately after such
transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
two-quarter period on an annualized basis, be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Debt to Cash Flow test set forth in
the first paragraph of Section 4.09 hereof. This Indenture shall also provide
that the Company may not, directly or indirectly, lease all or substantially all
of its properties or assets, in one or more related transactions, to any other
Person. The provisions of this Section 5.01 shall not be applicable to a sale,
assignment, transfer, conveyance or other disposition of assets between or among
the Company and its Wholly Owned Subsidiaries.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets that meets the requirements of Section
5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes and such default
continues for a period of 30 days, other than as provided in clause (b);
48
54
(b) the Company defaults in payment pursuant to the Escrow Agreement
or defaults in payment when due of principal of or premium, if any, on the Notes
when the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise;
(c) the Company fails to comply with any of the provisions of Section
4.07, 4.09, 4.10 or 4.15 hereof;
(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture, or the Notes for
60 days after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding voting as a
single class;
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after the date
of this Indenture, which default (i) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (ii) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $3.0 million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its Subsidiaries and such judgment or judgments are not paid, discharged
or stayed for a period (during which execution shall not be effectively stayed)
of 60 days, provided that the aggregate of all such unpaid, undischarged or
unstayed judgments exceeds $3.0 million;
(g) the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
49
55
(i) is for relief against the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02 ACCELERATION.
If any Event of Default (other than an Event of Default specified
in clause (g) or (h) of Section 6.01 hereof with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (g) or (h) of Section
6.01 hereof occurs with respect to the Company, any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, all outstanding Notes shall be due and
payable immediately without further action or notice. The Holders of a majority
in aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.
If an Event of Default occurs on or after May 15, 2003 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to May 15, 2003 by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding the prohibition on redemption of
the Notes prior to such date, then, upon acceleration of the Notes, an
additional premium shall also become and be immediately due and payable in an
amount, for each of the years beginning on May 15 of the years set forth below,
as set forth below (expressed as a percentage of the amount that would otherwise
be due but for the provisions of this paragraph, plus accrued interest, if any,
to the date of payment):
YEAR PERCENTAGE
---- ----------
1998............................................13.000%
1999............................................11.375%
2000............................................ 9.750%
50
56
2001.............................................8.125%
2002.............................................6.500%
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
51
57
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or
52
58
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium and Liquidated Damages, if
any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
53
59
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not independently verify the contents of such
certificates and opinions.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject
to this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
54
60
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be
55
61
transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA ss. 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
56
62
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
57
63
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIAss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss.
310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest and Liquidated Damages on such
Notes when such payments are due, (b) the Company's obligations with respect to
such Notes under Article 2 and
58
64
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and 4.22 hereof
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and
the Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding 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
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(d) through 6.01(f) hereof shall not constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest and
Liquidated Damages on the outstanding Notes on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
59
65
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit) or
insofar as Sections 6.01(g) or 6.01(h) hereof is concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel (which may be subject to customary exceptions) to the effect
that after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
60
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in accordance
with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
61
66
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors, if any, and the Trustee may amend or supplement this Indenture,
the Subsidiary Guarantees, if any, or the Notes without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's or a
Guarantor's, if any, obligations to the Holders of the Notes by a successor to
the Company or a Guarantor, if any, pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to allow any Subsidiary to execute a supplemental indenture
and/or a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company and
the Guarantors, if any, in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture (including Section 3.09, 4.10
and 4.15 hereof), the Subsidiary Guarantees, if any, and the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a Default
or Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the
Subsidiary Guarantees, if any, or the Notes may be waived with
62
67
the consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for Notes).
Section 2.08 hereof shall determine which Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Indenture unless such amended or supplemental Indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the Notes except
as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
63
68
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 and 4.15 hereof);
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(i) release a Guarantor, if any, from any of its obligations under
its Subsidiary Guarantee or this Indenture, except in accordance with the terms
of this Indenture.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
64
69
ARTICLE 10.
COLLATERAL AND SECURITY
SECTION 10.01. ESCROW AGREEMENT.
The due and punctual payment of the principal of and interest
and Liquidated Damages, if any, on the Notes when and as the same shall be due
and payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest and Liquidated Damages (to the extent permitted by law), if any, on
the Notes and performance of or payment of all other obligations of the Company
to the Holders of Notes or to the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, shall be secured as provided in
the Escrow Agreement which the Company has entered into simultaneously with the
execution of this Indenture and which is attached as Exhibit G hereto. Each
Holder of Notes, by its acceptance thereof, consents and agrees to the terms of
the Escrow Agreement (including, without limitation, the provisions providing
for foreclosure and release of Escrow Proceeds) as the same may be in effect or
may be amended from time to time in accordance with its terms and authorizes and
directs the Escrow Agent to enter into the Escrow Agreement and to perform its
obligations and exercise its rights thereunder in accordance therewith. The
Company shall deliver to the Escrow Agent copies of all documents pursuant to
the Escrow Agreement, and shall do or cause to be done all such acts and things
as may be necessary or proper, or as may be required by the provisions of the
Escrow Agreement, to assure and confirm to the Escrow Agent the security
interest in the Escrow Proceeds contemplated hereby, by the Escrow Agreement or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purposes herein expressed. The
Company shall take, or shall cause its Subsidiaries to take, upon request of the
Escrow Agent, any and all actions reasonably required to cause the Escrow
Agreement to create and maintain, as security for the Obligations of the Company
hereunder, a valid and enforceable perfected first priority Lien in and on all
the Pledged Collateral, in favor of the Escrow Agent for the benefit of the
Holders of Notes and the Trustee, superior to and prior to the rights of all
third Persons and subject to no other Liens than Permitted Liens. Each Holder of
Notes, by its acceptance thereof, acknowledges and agrees that the Trustee may
also act as Escrow Agent pursuant to the terms of the Escrow Agreement.
SECTION 10.02. RECORDING AND OPINIONS.
(a) The Company shall furnish to the Escrow Agent and the
Trustee simultaneously with the execution and delivery of this Indenture an
Opinion of Counsel either (i) stating that in the opinion of such counsel all
action has been taken with respect to the recording, registering and filing of
this Indenture, financing statements or other instruments necessary to make
effective the Lien intended to be created by the Escrow Agreement, and reciting
with respect to the security interests in the Pledged Collateral, the details of
such action, or (ii) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Company shall furnish to the Escrow Agent and the
Trustee on May 27 in each year beginning with May 27, 1999, an Opinion of
Counsel, dated as of such date, either (i) (A) stating that, in the opinion of
such counsel, action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refiling of all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain
65
70
the Lien of the Escrow Agreement and reciting with respect to the security
interests in the Pledged Collateral the details of such action or referring to
prior Opinions of Counsel in which such details are given, (B) stating that,
based on relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the Escrow Agent
hereunder and under the Escrow Agreement with respect to the security interests
in the Pledged Collateral, or (ii) stating that, in the opinion of such counsel,
no such action is necessary to maintain such Lien and assignment.
(c) The Company shall otherwise comply with the provisions of
TIA ss.314(b).
SECTION 10.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this Section
10.03, Pledged Collateral may be released from the Lien and security interest
created by the Escrow Agreement at any time or from time to time in accordance
with the provisions of the Escrow Agreement or as provided hereby.
(b) No Pledged Collateral shall be released from the Lien and
security interest created by the Escrow Agreement pursuant to the provisions of
the Escrow Agreement unless there shall have been delivered to the Escrow Agent
and the Trustee the certificate required by this Section 10.03.
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise) and the Escrow Agent has
knowledge of such Default or Event of Default, no release of Pledged Collateral
pursuant to the provisions of the Escrow Agreement shall be effective as against
the Holders of Notes.
(d) The release of any Pledged Collateral from the terms of
this Indenture and the Escrow Agreement shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Pledged Collateral is released pursuant to the terms of the
Escrow Agreement. To the extent applicable, the Company shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the release of
property or securities from the Lien and security interest of the Escrow
Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Escrow
Agreement, to be complied with. Any certificate or opinion required by TIA ss.
314(d) may be made by an Officer of the Company except in cases where TIA ss.
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Escrow Agent in the exercise of reasonable care.
SECTION 10.04. CERTIFICATES OF THE COMPANY.
(a) The Company shall furnish to the Trustee and the Escrow
Agent, prior to each proposed release of Pledged Collateral pursuant to the
Escrow Agreement, (i) all documents required by TIA ss. 314(d) and (ii) an
Opinion of Counsel, which may be rendered by internal counsel to the Company, to
the effect that such accompanying documents constitute all documents required by
TIA ss. 314(d). The Trustee and the Escrow Agent may, to the extent permitted by
Sections 7.01 and 7.02
66
71
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
SECTION 10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE ESCROW AGENT UNDER
THE ESCROW AGREEMENT.
Subject to the provisions of Section 7.01 and 7.02 hereof, the
Escrow Agent may, in its sole discretion and without the consent of the Holders
of Notes, take, on behalf of the Holders of Notes, all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the Escrow
Agreement and (b) collect and receive any and all amounts payable in respect of
the Obligations of the Company hereunder. The Escrow Agent shall have power to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Pledged Collateral by any acts that may be
unlawful or in violation of the Escrow Agreement or this Indenture, and such
suits and proceedings as the Escrow Agent may deem expedient to preserve or
protect its interests and the interests of the Holders of Notes in the Pledged
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders of Notes or of the Escrow Agent).
SECTION 10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE ESCROW AGENT UNDER
THE ESCROW AGREEMENT.
The Escrow Agent is authorized to receive any funds for the
benefit of the Holders of Notes distributed under the Escrow Agreement, and to
make further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture.
SECTION 10.07. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all Obligations of the Company
under this Indenture and the Notes, or upon Legal Defeasance or Covenant
Defeasance, the Escrow Agent shall release the Liens pursuant to this Indenture
and the Escrow Agreement.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties shall
control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address
67
72
If to the Company and/or Guarantor:
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
Attention: Xxxxx X. X'Xxxxxxx, Esq.
If to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx
The Company, any Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
68
73
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
69
74
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company as such, shall have any liability for
any obligations of the Company under the Notes, this Indenture or the Escrow
Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES, IF
ANY, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.11. SEVERABILITY.
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 11.12. INTERPRETATION OF SECURITY INTERESTS.
For purposes of the Sections 4.10, 4.15 and Section 5.01 any
grant of a security interest by the Company that is otherwise permitted by this
Indenture (as opposed to any transfer as a result of the exercise of remedies
under any instrument or document creating such interest) will not be deemed to
be a sale, lease, transfer or other disposition of an asset.
SECTION 11.13. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
70
75
SECTION 11.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
71
76
SIGNATURES
Dated as of May 27, 1998
PARK`N VIEW, INC.
BY: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO, COO
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
72
77
EXHIBIT A
(Face of Note)
===============================================================================
(a) CUSIP __________
13% [Series A] [Series B] Senior Notes due 2008
$
----------
PARK `N VIEW, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
Dollars on May 15, 2008
----------------------------------------
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
DATED: __________, 1998
PARK `N VIEW, INC.
BY:
-------------------------------------
Name:
Title:
This is one of the
Notes referred to in the
within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
------------------------------------
===============================================================================
A-1
78
(Back of Note)
13% [Series A] [Series B] Senior Notes due 2008
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.](1)
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (c) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE OR THE
WARRANT AGENT, AS APPLICABLE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE OR THE WARRANT AGENT, AS APPLICABLE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN
$250,000, AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE
WITH SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE
OF CLAUSE (b), (c) or (d) BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE
-----------------------
(1) This paragraph should be included only if Note is issued in global
form.
A-2
79
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF
AN ISSUANCE OF UNITS, EACH OF WHICH CONSIST OF $1,000 PRINCIPAL AMOUNT
OF THE NOTES AND ONE (1) WARRANT (THE "WARRANTS") INITIALLY ENTITLING
THE HOLDER THEREOF TO PURCHASE 6.73833 SHARES, PAR VALUE $.001 PER
SHARE, OF THE COMPANY. PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST
TO OCCUR OF (I) 180 DAYS FOLLOWING THE CLOSING DATE, (II) THE DATE ON
WHICH THE EXCHANGE OFFER REGISTRATION STATEMENT IS DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (III) THE DATE ON WHICH THE SHELF
REGISTRATION STATEMENT IS DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(IV) SUCH DATE AS THE INITIAL PURCHASER SHALL DETERMINE AND (V) IN THE
EVENT A CHANGE OF CONTROL OCCURS, THE DATE THE COMPANY MAILS THE
REQUIRED NOTICE TO THE NOTE HOLDERS, THE NOTES EVIDENCED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT
MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER,
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH
$1,000 PRINCIPAL AMOUNT OF THIS SECURITY, (1) THE ISSUE PRICE IS
$938.007; (2) THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS $61.993; (3)
THE ISSUE DATE IS MAY 27, 1998; AND (4) THE YIELD TO MATURITY
(COMPOUNDED SEMI-ANNUALLY) IS 14.17766%.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Park `N View, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 13% per annum from the Closing Date until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on May 15 and November 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 1998 The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in
A-3
80
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on
the Notes (except defaulted interest) and Liquidated Damages to the Persons who
are registered Holders of Notes at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium and Liquidated
Damages, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and
Liquidated Damages on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, State Street
Bank and Trust Company, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. INDENTURE AND ESCROW AGREEMENT. The Company issued
the Notes under an Indenture dated as of May 27, 1998 ("Indenture") between the
Company and the Trustee. 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 xx.xx. 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. 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 secured obligations of
the Company limited to $75.0 million in aggregate principal amount. The Notes
are secured by a pledge of U.S. Government Obligations pursuant to the Escrow
Agreement referred to in the Indenture.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this
Paragraph 5, the Notes will not be redeemable at the Company's option prior to
May 15, 2003. Thereafter, the Notes will be subject to redemption at any time at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on May 15 of the years
indicated below:
A-4
81
YEAR PERCENTAGE
2003...................................................................106.500%
2004...................................................................104.333%
2005...................................................................102.167%
2006 and thereafter 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, any time after the Issue Date and prior to May 15, 2001, the
Company, at its option, may redeem up to 35% of the then outstanding Notes with
the net proceeds of an Initial Public Equity Offering of the Company at a
redemption price of 113.0% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the date of
redemption; provided that at least 65% in aggregate principal amount of Notes
originally issued remain outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company, its subsidiaries and its
Affiliates); and provided, further, that such redemption shall occur within 60
days of the date of the closing of such Initial Public Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDERS.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
an offer price in cash equal 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase. Within ten days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset
Sales, within five days of each date on which the aggregate amount of Excess
Proceeds exceeds $5 million, the Company shall commence an offer to all Holders
of Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Subsidiary) may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in
A-5
82
whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a
Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantees, if any, or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, voting as a single
class, and any existing default or compliance with any provision of the
Indenture, the Subsidiary Guarantees, if any, or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes, voting as a single class. Without the consent of any Holder
of a Note, the Indenture, the Subsidiary Guarantees, if any, or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or Guarantor's, if any,
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act, or to allow any Subsidiary to execute a
supplemental indenture to the Indenture and/or a Subsidiary Guarantee with
respect to the Notes.
12. DEFAULTS AND REMEDIES. Events of Default include:
(i) default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes, other than as provided in clause (ii); (ii) default in
payment pursuant to the Escrow Agreement or a default in payment when due of
principal of or premium, if any, on the Notes; (iii) failure by the Company to
comply with Section 4.07, 4.09, 4.10 or 4.15 of the Indenture; (iv) failure by
the Company or any of its Subsidiaries for 60 days after notice to the Company
by the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding voting as a single class to comply with certain other
covenants, representations, warranties or other agreements in the Indenture or
the Notes; (v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after the date
of this Indenture, which default (A) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (B) results in
A-6
83
the acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $3.0
million or more; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days, provided that the aggregate of all
such undischarged judgments exceeds $3.0 million; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder, of the Company, as such, shall not have
any liability for any obligations of the Company under the Notes, the Indenture
or the Escrow Agreement for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the A/B
Exchange Registration Rights Agreement dated as of May 27, 1998, between the
Company and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
X-0
00
00. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
A-8
85
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
A-9
86
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:
--------------
Your Signature:__________________________
(Sign exactly as your name appears on the
face of this Note)
SIGNATURE GUARANTEE.
A-10
87
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $________
Date: __________
Your Signature:
-------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No:
------------------------
SIGNATURE GUARANTEE.
A-11
88
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
Amount of Amount of increase of
decrease in in Principal this Global Note Signature of
Principal Amount Amount following such authorized officer
of of decrease (or of Trustee or
Date of Exchange this Global Note this Global Note increase) Note Custodian
-------------------------------------------------------------------------------------------------------------
A-12
89
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 13% Senior Notes due 2008 of Park `N View, Inc.
Reference is hereby made to the Indenture, dated as of May 27,
1998 (the "Indenture"), between Park `N View, Inc., as issuer (the "Company"),
and State Street Bank and Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the
B-1
90
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the Indenture and (2) if
such Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Notes and in the Indenture and the
Securities Act.
3. [ ] Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
B-2
91
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------------------
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ___________, _____
B-3
92
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
(ii) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
(ii) [ ] Unrestricted Global Note (CUSIP ); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
93
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 13% Senior Notes due 2008 of Park `N View, Inc.
(CUSIP____________)
Reference is hereby made to the Indenture, dated as of May 27, 1998
(the "Indenture"), between Park `N View, Inc., as issuer (the "Company"), and
State Street Bank and Trust Company, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
C-1
94
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the 144A Global Note with an equal principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
95
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Owner]
By:
--------------------------------
Name:
Title:
Dated: ________________, ____
C-3
96
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 13% Senior Notes due 2008 of Park `N View, Inc.
Reference is hereby made to the Indenture, dated as of May 27, 1998
(the "Indenture"), between Park `N View, Inc., as issuer (the "Company"), and
State Street Bank and Trust Company, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (c) 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 and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to
D-1
97
the effect that such transfer is in compliance with the Securities Act, (D)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (D) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications, 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. We further understand that any
subsequent transfer by us of the Notes or beneficial interest therein acquired
by us must be effected through one of the Placement Agents.
4. 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 its investment.
5. We are acquiring the Notes or beneficial interest
therein 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 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.
------------------------------------------
[Insert Name of Accredited Investor]
By:
---------------------------------------
Name:
Title:
Dated: __________________, ____
D-2
98
EXHIBIT E
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Each Guarantor (as defined in the Indenture) has jointly and severally
unconditionally guaranteed (a) the due and punctual payment of the principal of,
premium, if any, and interest on the Notes, whether at maturity or an Interest
Payment Date, by acceleration, call for redemption or otherwise, (b) the due and
punctual payment of interest on the overdue principal and premium of, and
interest, to the extent lawful, on the Notes and (c) that in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due in accordance with
the terms of the extension of renewal, whether at stated maturity, by
acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Subsidiary
Guarantee would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantor under its Subsidiary Guarantee shall be limited to such amount as will
not, after giving effect thereto, and to all other liabilities of the Guarantor,
result in such amount constituting a fraudulent transfer or conveyance.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers.
Dated:_____________, _____ [GUARANTOR]
By:
--------------------------------------
Name:
Title:
X-0
00
XXXXXXX X
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guarantor"), a subsidiary of
Park `N View, Inc. (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and State Street Bank and Trust Company, as trustee under
the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of May 27, 1998 providing for
the issuance of an aggregate principal amount of up to $75.0 million of 13%
Senior Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings as signed to them in the Indenture.
2. INDENTURE PROVISION PURSUANT TO WHICH GUARANTEE IS GIVEN. This
Supplemental Indenture is being executed and delivered pursuant to Section 4.21
of the Indenture.
3. AGREEMENTS TO GUARANTEE. The Guarantor hereby agrees as
follows:
(a) The Guarantor, jointly and severally with all other
Guarantors, if any, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, regardless of the validity and enforceability of the Indenture, the
Notes and the obligations of the Company under the Indenture and the Notes,
that:
(i) the principal of, premium, if any, and
interest on the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of, premium, if any, and interest on the Notes, to the extent lawful,
and all other obligations of the Company to the Holders or the Trustee
thereunder shall be promptly paid in full, all in accordance with the terms
thereof; and
F-1
100
(ii) in case of any extension of time for payment
or renewal of any Notes or any of such other obligations, that the same shall be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantor under this Supplemental Indenture and its Subsidiary Guarantee shall
be limited to such amount as will not, after giving effect thereto, and to all
other liabilities of the Guarantor, result in such amount constituting a
fraudulent transfer or conveyance.
4. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
(a) To evidence its Subsidiary Guarantee set forth in
this Supplemental Indenture, the Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Annex A hereto shall be
endorsed by an officer of such Guarantor on each Note authenticated and
delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, the Guarantor hereby
agrees that its Subsidiary Guarantee set forth herein shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guarantee.
(c) If an officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds that office at the time
the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed,
the Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of the Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Supplemental Indenture on behalf of the
Guarantor.
(e) The Guarantor hereby agrees that its obligations
hereunder shall be unconditional, regardless of the validity, regularity or
enforceability of the Notes or the 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.
(f) The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Subsidiary Guarantee made pursuant to this Supplemental Indenture will not be
discharged except by complete performance of the obligations contained in the
Notes and the Indenture or pursuant to Section 5(b) of this Supplemental
Indenture.
(g) If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Supplemental 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,
F-2
101
subject to any determination in such proceeding, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Guarantor, the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
(h) The Guarantor hereby waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Guarantor as a result of any payment by such Guarantor under its
Subsidiary Guarantee. The Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture for the
purposes of the Subsidiary Guarantee made pursuant to this Supplemental
Indenture, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby; and
(ii) in the event of any declaration of
acceleration of such obligations as provided in Article Six, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purpose of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture.
(i) The Guarantor shall have the right to seek contribution from
any other non-paying Guarantor, if any, so long as the exercise of such right
does not impair the rights of the Holders under the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
(j) The Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of the Indenture or this Subsidiary
Guarantee; and the Guarantor (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.
5. SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
(a) Except as set forth in Articles Four and Five of the
Indenture, nothing contained in the Indenture, this Supplemental Indenture or in
the Notes shall prevent any consolidation or merger of the Guarantor with or
into the Company or any other Guarantor or shall prevent any transfer, sale or
conveyance of the property of the Guarantor as an entirety or substantially as
an entirety, to the Company or any other Guarantor.
(b) Except as set forth in Article Five of the Indenture,
upon the sale or disposition of all of the Capital Stock of the Guarantor by the
Company or the Subsidiary of the Company, or upon the consolidation or merger of
the Guarantor with or into any Person, or the sale of all or substantially all
of the assets of the Guarantor (in each case, other than to an Affiliate of the
Company), such Guarantor shall be deemed automatically and unconditionally
released and discharged from all obligations under this
F-3
102
Subsidiary Guarantee without any further action required on the part of the
Trustee or any Holder if no Default shall have occurred and be continuing;
provided, that in the event of an Asset Sale, the Net Cash Proceeds therefrom
are treated in accordance with Section 4.10 of the Indenture. Except with
respect to transactions set forth in the preceding sentence, the Company and the
Guarantor covenant and agree that upon any such consolidation, merger or
transfer of assets, the performance of all covenants and conditions of this
Supplemental Indenture to be performed by such Guarantor shall be expressly
assumed by supplemental indenture satisfactory in form to the Trustee, by the
corporation formed by such consolidation, or into which the Guarantor shall have
merged, or by the corporation which shall have acquired such property. Upon
receipt of an Officer's Certificate of the Company or the Guarantor, as the case
may be, to the effect that the Company or such Guarantor has complied with the
first sentence of this Section 5(b), the Trustee shall execute any documents
reasonably requested by the Company or the Guarantor, at the cost of the Company
or such Guarantor, as the case may be, in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Notes and
under the Indenture and this Supplemental Indenture.
6. NEW YORK LAW TO GOVERN. The internal law of the State of New
York shall govern and be used to construe this Supplemental Indenture.
7. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction hereof.
F-4
103
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, ____
[GUARANTOR]
By:
----------------------------------------
Name:
Title:
PARK `N VIEW, INC.
By:
----------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
----------------------------------------
Name:
Title
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
----------------------------------------
Name:
Title:
104
EXHIBIT G
FORM OF ESCROW AGREEMENT
===============================================================================
PLEDGE, ESCROW AND DISBURSEMENT AGREEMENT
by and among
PARK `N VIEW, INC.
STATE STREET BANK AND TRUST COMPANY
as Trustee
and
STATE STREET BANK AND TRUST COMPANY
as Escrow Agent
May 27, 1998
===============================================================================
105
PLEDGE, ESCROW AND DISBURSEMENT AGREEMENT
THIS PLEDGE, ESCROW AND DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
May 27, 1998, is by and among PARK `N VIEW, INC. (the "Company"), STATE STREET
BANK AND TRUST COMPANY, as trustee under the Indenture referred to below (the
"Trustee"), AND STATE STREET BANK AND TRUST COMPANY, in its capacity as
collateral agent for the Trustee and the Holders of the Notes hereinafter
described (the "Escrow Agent").
RECITALS
A. The Notes. Pursuant to that certain Indenture (the "Indenture") dated
as of May 27, 1998, by and between the Company and the Trustee, the Company will
issue $75,000,000 in aggregate principal amount of 13% Senior Notes due 2008
(collectively, the "Notes"). Immediately after receipt of payment for the Notes
(the "Deposit Time"), the Company will deposit $19,175,000 of the net proceeds
from the sale of the Notes (the "Escrow Proceeds") into a segregated cash
collateral trust account with the Escrow Agent at its office at 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 in the name of State Street Bank and Trust Company, as
Escrow Agent, "Collateral Account for Park `N View, Inc." (the "Escrow
Account"). The Escrow Account and all balances and investments from time to time
therein shall be under the sole dominion and control of the Escrow Agent for the
benefit of the Holders of the Notes. Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Indenture.
B. Purpose. The parties hereto desire to set forth their agreement with
regard to the administration of the Escrow Account, the creation of a security
interest in the Collateral (as defined herein) and the conditions upon which
funds will be released from the Escrow Account and the conditions upon which the
security interest and Lien described herein will be released.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. SECURITY INTEREST.
1.1. PLEDGE AND ASSIGNMENT. THE COMPANY HEREBY IRREVOCABLY PLEDGES, ASSIGNS
AND SETS OVER TO THE TRUSTEE, AND GRANTS TO THE TRUSTEE, FOR THE BENEFIT OF THE
HOLDERS OF THE NOTES, A FIRST PRIORITY CONTINUING SECURITY INTEREST IN ALL OF
THE COMPANY'S RIGHT, TITLE AND INTEREST TO ALL OF THE FOLLOWING, WHETHER NOW
OWNED OR EXISTING OR HEREAFTER ACQUIRED OR CREATED (COLLECTIVELY, THE
"COLLATERAL"):
1.1.1. the Escrow Account;
1.1.2. all funds from time to time held in the Escrow Account,
including, without limitation, the Escrow Proceeds and all certificates and
instruments, if any, from time to time, representing or evidencing the Escrow
Account or the Escrow Proceeds;
1.1.3. all Pledged Securities (as defined herein), whether the same
shall constitute certificated securities, uncertificated securities, investment
property, instruments, general intangibles or otherwise held by or registered in
the name of the Escrow Agent or the Trustee and all certificates and
instruments, if any, from time to time representing or evidencing the Pledged
Securities;
1
106
1.1.4. all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Trustee or the Escrow Agent for or on behalf of the Company in
substitution for or in addition to any or all of the then existing Collateral;
1.1.5. all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Collateral; and
1.1.6. all proceeds of the foregoing including, without limitation,
cash proceeds.
The Company and the Trustee hereby appoint the Escrow Agent to act as the
Trustee's agent, on behalf of the Holders of the Notes, for purposes of
perfecting the foregoing pledge, assignment and security interest in the
Collateral, and the Escrow Agent hereby accepts such appointment. The Escrow
Agent hereby acknowledges the security interest in the Collateral granted by the
Company in favor of the Trustee hereunder. The Escrow Agent further acknowledges
that it is holding the Collateral for the benefit of the Holders of the Notes
subject to the pledge and security interest granted to the Trustee hereunder.
Without prejudice to the Trustee's rights under Section 7.07 of the Indenture,
for so long as the foregoing pledge, assignment and security interest remains in
effect, the Escrow Agent hereby waives any right of setoff or banker's lien that
it, in its individual capacity, may have with respect to any or all of the
Collateral.
1.2. SECURED OBLIGATIONS. THIS AGREEMENT SECURES THE DUE AND PUNCTUAL
PAYMENT AND PERFORMANCE OF ALL OBLIGATIONS AND INDEBTEDNESS OF THE COMPANY,
WHETHER NOW OR HEREAFTER EXISTING, UNDER THE NOTES AND THE INDENTURE INCLUDING,
WITHOUT LIMITATION, INTEREST ACCRUED THEREON AFTER THE COMMENCEMENT OF A
BANKRUPTCY, REORGANIZATION OR SIMILAR PROCEEDING INVOLVING THE COMPANY TO THE
EXTENT PERMITTED BY APPLICABLE LAW (COLLECTIVELY, THE "SECURED OBLIGATIONS").
1.3. DELIVERY OF COLLATERAL. ALL CERTIFICATES OR INSTRUMENTS, IF ANY,
REPRESENTING OR EVIDENCING THE COLLATERAL SHALL BE HELD BY OR ON BEHALF OF THE
ESCROW AGENT PURSUANT HERETO AND SHALL BE IN SUITABLE FORM FOR TRANSFER BY
DELIVERY, OR SHALL BE ACCOMPANIED BY DULY EXECUTED INSTRUMENTS OF TRANSFER OR
ASSIGNMENTS IN BLANK, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
TRUSTEE AND THE ESCROW AGENT. ALL SECURITIES IN UNCERTIFICATED OR BOOK-ENTRY
FORM, IF ANY, REPRESENTING OR EVIDENCING THE COLLATERAL SHALL BE REGISTERED IN
THE NAME OF THE TRUSTEE OR ANY OF ITS NOMINEES BY BOOK-ENTRY OR AS OTHERWISE
APPROPRIATE SO AS TO PROPERLY IDENTIFY THE INTEREST OF THE TRUSTEE THEREIN. IN
ADDITION, THE TRUSTEE SHALL HAVE THE RIGHT, AT ANY TIME FOLLOWING THE OCCURRENCE
OF AN EVENT OF DEFAULT, AND ONLY FOR SO LONG AS SUCH EVENT OF DEFAULT IS
CONTINUING, TO INSTRUCT THE ESCROW AGENT TO RELEASE THE COLLATERAL AND TO
TRANSFER TO OR TO REGISTER IN THE NAME OF THE TRUSTEE OR ANY OF ITS NOMINEES ANY
OR ALL OTHER COLLATERAL. EXCEPT AS OTHERWISE PROVIDED HEREIN, ALL COLLATERAL
SHALL BE DEPOSITED AND HELD IN THE ESCROW ACCOUNT. THE TRUSTEE SHALL HAVE THE
RIGHT AT ANY TIME TO EXCHANGE CERTIFICATES OR INSTRUMENTS REPRESENTING OR
EVIDENCING ALL OR ANY PORTION OF THE COLLATERAL FOR CERTIFICATES OR INSTRUMENTS
OF SMALLER OR LARGER DENOMINATIONS IN THE SAME AGGREGATE AMOUNT.
1.4. FURTHER ASSURANCES. PRIOR TO, CONTEMPORANEOUSLY HEREWITH, AND AT ANY
TIME AND FROM TIME TO TIME HEREAFTER, THE COMPANY SHALL, AT THE COMPANY'S
EXPENSE, EXECUTE AND DELIVER TO THE TRUSTEE OR THE ESCROW AGENT SUCH OTHER
INSTRUMENTS AND DOCUMENTS,
2
107
AND SHALL TAKE ALL FURTHER ACTION AS IT DEEMS REASONABLY NECESSARY OR ADVISABLE
OR AS THE TRUSTEE OR THE ESCROW AGENT MAY REASONABLY REQUEST, INCLUDING, WITHOUT
LIMITATION, AN OPINION OF COUNSEL, UPON WHICH THE TRUSTEE OR THE ESCROW AGENT,
AS THE CASE MAY BE, MAY CONCLUSIVELY RELY, TO CONFIRM OR PERFECT THE SECURITY
INTEREST OF THE TRUSTEE GRANTED OR PURPORTED TO BE GRANTED HEREBY OR TO ENABLE
THE TRUSTEE TO EXERCISE AND ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER WITH
RESPECT TO ANY COLLATERAL, AND THE COMPANY SHALL TAKE ALL NECESSARY ACTION TO
PRESERVE AND PROTECT THE SECURITY INTEREST CREATED HEREBY AS A FIRST PRIORITY,
PERFECTED LIEN AND ENCUMBRANCE UPON THE COLLATERAL. THE COMPANY SHALL PAY ALL
COSTS INCURRED IN CONNECTION WITH ANY OF THE FOREGOING.
1.5. MAINTAINING THE ESCROW ACCOUNT. SO LONG AS THIS AGREEMENT IS IN FULL
FORCE AND EFFECT:
1.5.1. the Company shall establish and maintain the Escrow Account
with the Escrow Agent in New York, New York, and the Escrow Account and the
Collateral shall at all times remain under the exclusive dominion and control of
the Escrow Agent for the benefit of the Holders of the Notes; and
1.5.2. it shall be a term and condition of the Escrow Account,
notwithstanding any term or condition to the contrary in any other agreement
relating to the Escrow Account and except as otherwise provided by the
provisions of Article 3 of this Agreement, that no amount (including, without
limitation, interest on or other proceeds of the Escrow Account or on any
Pledged Securities held therein) shall be paid or released to or for the account
of, or withdrawn by or for the account of, the Company or any other person or
entity other than the Trustee from the Escrow Account.
1.5.3. the Escrow Agent shall have full and exclusive control over
the Collateral and no act or consent by the Company shall be required for the
Trustee to effect its duties hereunder. In the event that inconsistent
provisions are taken by the Trustee and the Company, the Trustee's instructions
shall govern.
1.6. TRANSFERS AND OTHER LIENS. UNTIL TERMINATION OF THIS AGREEMENT PURSUANT
TO SECTION 8, THE COMPANY AGREES THAT IT SHALL NOT (I) SELL, ASSIGN (BY
OPERATION OF LAW OR OTHERWISE) OR OTHERWISE DISPOSE OF, OR GRANT ANY OPTION WITH
RESPECT TO, ANY OF THE COLLATERAL OR (II) CREATE OR PERMIT TO EXIST ANY LIEN
UPON OR WITH RESPECT TO ANY OF THE COLLATERAL, EXCEPT FOR THE SECURITY INTEREST
UNDER THIS AGREEMENT.
1.7. ATTORNEYS-IN-FACT. IN ADDITION TO ALL OF THE POWERS GRANTED TO THE
TRUSTEE PURSUANT TO ARTICLE 6 OF THE INDENTURE, THE COMPANY HEREBY IRREVOCABLY
APPOINTS EACH OF THE TRUSTEE AND THE ESCROW AGENT AS THE COMPANY'S
ATTORNEY-IN-FACT, COUPLED WITH AN INTEREST, WITH FULL AUTHORITY IN THE PLACE AND
STEAD OF THE COMPANY AND IN THE NAME OF THE COMPANY OR OTHERWISE, FROM TIME TO
TIME IN THE TRUSTEE'S OR THE ESCROW AGENT'S DISCRETION TO, SO LONG AS ANY EVENT
OF DEFAULT HAS OCCURRED AND IS CONTINUING, TAKE ANY ACTION AND TO EXECUTE ANY
INSTRUMENT WHICH THE TRUSTEE OR THE ESCROW AGENT MAY DEEM REASONABLY NECESSARY
OR ADVISABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, TO RECEIVE, ENDORSE AND COLLECT ALL INSTRUMENTS MADE PAYABLE TO THE
COMPANY REPRESENTING ANY INTEREST PAYMENT, DIVIDEND OR OTHER DISTRIBUTION IN
RESPECT OF THE COLLATERAL OR ANY PART THEREOF AND TO GIVE FULL DISCHARGE FOR THE
SAME, AND THE EXPENSES OF THE TRUSTEE (INCLUDING REASONABLE FEES OF
3
108
ITS AGENTS AND COUNSEL) INCURRED IN CONNECTION THEREWITH SHALL BE PAYABLE BY THE
COMPANY.
1.8. TRUSTEE OR ESCROW AGENT MAY PERFORM. WITHOUT LIMITING THE AUTHORITY
GRANTED UNDER SECTION 1.7 AND EXCEPT WITH RESPECT TO THE FAILURE OF THE COMPANY
TO DELIVER INVESTMENT INSTRUCTIONS, WHICH SHALL BE GOVERNED BY THE SECOND
PARAGRAPH OF SECTION 2.1 HEREOF, IF THE COMPANY FAILS TO PERFORM ANY AGREEMENT
CONTAINED HEREIN, THE TRUSTEE OR THE ESCROW AGENT MAY, BUT SHALL NOT BE
OBLIGATED TO, ITSELF PERFORM, OR CAUSE PERFORMANCE OF, SUCH AGREEMENT, AND THE
EXPENSES OF THE TRUSTEE OR THE ESCROW AGENT INCURRED IN CONNECTION THEREWITH
SHALL BE PAYABLE BY THE COMPANY. IN THE EVENT THAT THE TRUSTEE OR THE ESCROW
AGENT PERFORM PURSUANT TO THIS SECTION 1.8, THE COMPANY SHALL COMPENSATE,
REIMBURSE AND INDEMNIFY THE TRUSTEE OR THE ESCROW AGENT, AS THE CASE MAY BE, IN
THE MANNER PROVIDED IN SECTION 7.07 OF THE INDENTURE.
1.9. ESCROW ACCOUNT STATEMENT. EACH MONTH, THE ESCROW
AGENT SHALL DELIVER TO THE COMPANY AND THE TRUSTEE A STATEMENT IN A FORM
SATISFACTORY TO THE COMPANY AND THE TRUSTEE SETTING FORTH WITH REASONABLE
PARTICULARITY THE BALANCE OF FUNDS THEN IN THE ESCROW ACCOUNT AND THE MANNER IN
WHICH SUCH FUNDS ARE INVESTED. THE PARTIES HERETO IRREVOCABLY INSTRUCT THE
ESCROW AGENT THAT ON THE FIRST DATE UPON WHICH THE BALANCE IN THE ESCROW ACCOUNT
IS REDUCED TO ZERO, THE ESCROW AGENT SHALL DELIVER TO THE COMPANY AND TO THE
TRUSTEE A NOTICE THAT THE BALANCE IN THE ESCROW ACCOUNT HAS BEEN REDUCED TO
ZERO.
2. INVESTMENT AND LIQUIDATION OF FUNDS IN ESCROW ACCOUNT. FUNDS DEPOSITED
IN THE ESCROW ACCOUNT SHALL BE INVESTED AND REINVESTED BY THE ESCROW AGENT ON
THE FOLLOWING TERMS AND CONDITIONS:
2.1. PLEDGED SECURITIES. SUBJECT TO THE PROVISIONS OF ARTICLES 2 AND 3,
FUNDS HELD BY THE ESCROW AGENT IN THE ESCROW ACCOUNT MAY, AT THE WRITTEN
DIRECTION OF THE COMPANY, BE INVESTED AND REINVESTED SOLELY IN THE FOLLOWING
("PLEDGED SECURITIES"): (X) SECURITIES THAT ARE (I) DIRECT OBLIGATIONS 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) OBLIGATIONS OF A PERSON
CONTROLLED OR SUPERVISED BY AND ACTING AS AN AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OF AMERICA THE PAYMENT OF WHICH IS UNCONDITIONALLY GUARANTEED AS A
FULL FAITH AND CREDIT OBLIGATION BY THE UNITED STATES OF AMERICA, WHICH IN
EITHER CASE, ARE NOT CALLABLE OR REDEEMABLE AT THE OPTION OF THE ISSUER THEREOF,
AND (Y) DEPOSITORY RECEIPTS 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 DEPOSITORY RECEIPT, OR WITH RESPECT TO ANY SPECIFIC PAYMENT
OF PRINCIPAL 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
DEPOSITORY RECEIPT FROM ANY AMOUNT RECEIVED BY THE CUSTODIAN IN RESPECT OF THE
U.S. GOVERNMENT OBLIGATION OR THE SPECIFIC PAYMENT OF PRINCIPAL OR INTEREST OF
THE U.S. GOVERNMENT OBLIGATION EVIDENCED BY SUCH DEPOSITORY RECEIPT ("U.S.
GOVERNMENT OBLIGATIONS"), IN EACH CASE, HAVING A MATURITY DATE ON OR BEFORE THE
DATE ON WHICH THE PAYMENTS OF INTEREST ON THE NOTES TO WHICH SUCH U.S.
GOVERNMENT OBLIGATIONS ARE PLEDGED TO SECURE OCCUR.
4
109
If the Company fails to give written investment instructions
to the Escrow Agent by 10:00 a.m. (New York time) on any Business Day (other
than the Closing Date) on which there is uninvested cash and/or maturing Pledged
Securities in the Escrow Account, the Trustee is hereby authorized and directed
to direct the Escrow Agent to, and the Escrow Agent shall, invest any such cash
or the proceeds of any maturing Pledged Securities in Pledged Securities
maturing on the next Business Day. On the Closing Date, the Company may direct
the Trustee, who shall direct the Escrow Agent, to invest the proceeds in the
Escrow Account in Pledged Securities until 2:00 p.m., which instructions shall
be executed no later than 12:00 noon on the Business Day immediately following
the Closing Date. The Company's failure to give such investment instructions
shall not constitute a default or an event of default hereunder.
2.2. INTEREST. ALL INTEREST EARNED ON FUNDS INVESTED IN PLEDGED SECURITIES
SHALL BE HELD IN THE ESCROW ACCOUNT AND REINVESTED IN ACCORDANCE WITH THE TERMS
HEREOF AND SHALL BE SUBJECT TO THE SECURITY INTEREST GRANTED HEREUNDER TO THE
TRUSTEE.
2.3. LIMITATION OF TRUSTEE'S AND ESCROW AGENT'S LIABILITY. SUBJECT TO
SECTION 9.12, IN NO EVENT SHALL THE TRUSTEE OR THE ESCROW AGENT HAVE ANY
LIABILITY TO THE COMPANY OR ANY OTHER PERSON FOR INVESTING THE FUNDS FROM TIME
TO TIME IN THE ESCROW ACCOUNT IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE
2, REGARDLESS OF WHETHER GREATER INCOME OR A HIGHER YIELD COULD HAVE BEEN
OBTAINED HAD THE ESCROW AGENT INVESTED SUCH FUNDS IN DIFFERENT PLEDGED
SECURITIES, OR FOR ANY LOSS (INCLUDING BREAKAGE COSTS OR LOSS OF PRINCIPAL)
ASSOCIATED WITH THE SALE OR LIQUIDATION OF PLEDGED SECURITIES IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT.
2.4. LIQUIDATION OF FUNDS. IN LIQUIDATING ANY PLEDGED SECURITIES IN
ACCORDANCE WITH ARTICLE 3 OF THIS AGREEMENT, THE COMPANY SHALL DIRECT THE
TRUSTEE OR THE ESCROW AGENT AS TO WHICH PLEDGED SECURITIES SHALL BE LIQUIDATED.
3. INTEREST PAYMENTS.
3.1. NOT LATER THAN FIVE (5) BUSINESS DAYS PRIOR TO THE DATE OF EACH OF THE
FIRST FOUR SCHEDULED INTEREST PAYMENTS DUE ON THE NOTES, THE COMPANY SHALL, IN
WRITING, DIRECT THE ESCROW AGENT TO TRANSFER FROM THE ESCROW ACCOUNT TO THE
PAYING AGENT FUNDS NECESSARY TO PROVIDE FOR PAYMENT IN FULL OR ANY PORTION OF
THE NEXT SCHEDULED INTEREST PAYMENT ON THE NOTES (OR, IF A PORTION OF THE NOTES
HAS BEEN RETIRED BY THE COMPANY, FUNDS REPRESENTING THE LESSER OF (I) THE AMOUNT
SUFFICIENT TO PAY INTEREST THROUGH AND INCLUDING MAY 15, 2000, ON THE NOTES NOT
SO RETIRED AND (II) THE INTEREST PAYMENTS WHICH HAVE NOT PREVIOUSLY BEEN MADE ON
SUCH RETIRED NOTES FOR EACH SCHEDULED INTEREST PAYMENT DATE THROUGH AND
INCLUDING THE SCHEDULED INTEREST PAYMENT DATE) OR, IF THE COMPANY DOES NOT
INTEND TO UTILIZE THE FUNDS IN THE ESCROW ACCOUNT FOR SUCH PAYMENT OF INTEREST,
THEN THE COMPANY SHALL COMPLY WITH SECTION 3.2 BELOW. UPON RECEIPT OF SUCH
WRITTEN REQUEST, THE ESCROW AGENT SHALL TAKE ANY ACTION NECESSARY TO PROVIDE FOR
THE PAYMENT OF SUCH INTEREST PAYMENT ON THE NOTES DIRECTLY TO THE HOLDERS OF
NOTES FROM PROCEEDS OF THE COLLATERAL IN THE ESCROW ACCOUNT. CONCURRENTLY WITH
ANY RELEASE OF FUNDS TO THE PAYING AGENT PURSUANT TO THIS SECTION 3.1, THE
COMPANY SHALL DELIVER TO THE TRUSTEE A CERTIFICATE SUBSTANTIALLY IN THE FORM OF
EXHIBIT A HERETO.
3.2. IF THE COMPANY MAKES ANY INTEREST PAYMENT OR PORTION OF AN INTEREST
PAYMENT FROM A SOURCE OF FUNDS OTHER THAN THE ESCROW ACCOUNT ("COMPANY FUNDS"),
THE
5
110
COMPANY MAY, AFTER PAYMENT IN FULL OF SUCH INTEREST PAYMENT, DIRECT THE TRUSTEE
IN WRITING TO DIRECT THE ESCROW AGENT TO RELEASE TO THE COMPANY OR AT THE
DIRECTION OF THE COMPANY AN AMOUNT OF FUNDS FROM THE ESCROW ACCOUNT EQUAL TO THE
LESSER OF (I) THE AMOUNT OF COMPANY FUNDS SO EXPENDED AND (II) THE AMOUNT OF
FUNDS IN THE ESCROW ACCOUNT WHICH EXCEEDS THE AMOUNT SUFFICIENT, IN THE
REASONABLE OPINION OF THE TRUSTEE, TO PROVIDE FOR PAYMENT IN FULL OF THE FIRST
FOUR SCHEDULED INTEREST PAYMENTS ON THE NOTES. UPON RECEIPT OF THE CERTIFICATE
DESCRIBED IN THE FOLLOWING SENTENCE, THE TRUSTEE SHALL DIRECT THE ESCROW AGENT
TO PAY OVER TO THE COMPANY THE REQUESTED AMOUNT. CONCURRENTLY WITH ANY RELEASE
OF FUNDS TO THE COMPANY PURSUANT TO THIS SECTION 3.2, THE COMPANY SHALL DELIVER
TO THE TRUSTEE A CERTIFICATE SUBSTANTIALLY IN THE FORM OF EXHIBIT A HERETO.
3.3. UPON PAYMENT IN FULL OF THE FIRST FOUR SCHEDULED INTEREST PAYMENTS ON
THE NOTES, THE SECURITY INTEREST IN THE COLLATERAL EVIDENCED BY THIS AGREEMENT
SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT. FURTHERMORE, UPON THE
RELEASE OF ANY COLLATERAL FROM THE ESCROW ACCOUNT IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT, WHETHER UPON RELEASE OF COLLATERAL TO HOLDERS AS PAYMENT OF
INTEREST, TO THE COMPANY OR OTHERWISE, THE SECURITY INTEREST EVIDENCED BY THIS
AGREEMENT IN THE COLLATERAL SO RELEASED SHALL TERMINATE AND BE OF NO FURTHER
FORCE AND EFFECT.
4. REPRESENTATIONS AND WARRANTIES. THE COMPANY HEREBY REPRESENTS AND
WARRANTS THAT:
4.1. THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF THIS
AGREEMENT ARE WITHIN THE COMPANY'S CORPORATE POWERS, HAVE BEEN DULY AUTHORIZED
BY ALL NECESSARY CORPORATE ACTION, AND DO NOT CONTRAVENE, OR CONSTITUTE A
DEFAULT UNDER, ANY PROVISION OF APPLICABLE LAW OR REGULATION OR OF THE
CERTIFICATE OF INCORPORATION OF THE COMPANY OR OF ANY AGREEMENT, JUDGMENT,
INJUNCTION, ORDER, DECREE OR OTHER INSTRUMENT BINDING UPON THE COMPANY OR RESULT
IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSETS OF THE COMPANY, EXCEPT
FOR THE SECURITY INTERESTS GRANTED UNDER THIS AGREEMENT.
4.2. THE COMPANY IS THE RECORD AND BENEFICIAL OWNER OF THE COLLATERAL, FREE
AND CLEAR OF ANY AND ALL LIENS OR CLAIMS OF ANY PERSON OR ENTITY (EXCEPT FOR THE
SECURITY INTERESTS GRANTED UNDER THIS AGREEMENT). NO FINANCING STATEMENT
COVERING THE COLLATERAL IS ON FILE IN ANY PUBLIC OFFICE OTHER THAN THE FINANCING
STATEMENTS FILED PURSUANT TO THIS AGREEMENT.
4.3. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND
CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY THE EFFECT OF ANY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY OR GENERAL PRINCIPLES OF EQUITY AND COMMERCIAL REASONABLENESS.
4.4. UPON THE FILING OF FINANCING STATEMENTS REQUIRED BY THE UNIFORM
COMMERCIAL CODE (THE "UCC"), THE PLEDGE OF THE COLLATERAL PURSUANT TO THIS
AGREEMENT CREATES A VALID AND PERFECTED FIRST PRIORITY SECURITY INTEREST IN AND
TO THE COLLATERAL, SECURING THE PAYMENT OF THE SECURED OBLIGATIONS FOR THE
BENEFIT OF THE TRUSTEE AND THE RATABLE BENEFIT OF THE HOLDERS OF NOTES,
ENFORCEABLE AS SUCH AGAINST ALL CREDITORS OF THE
6
111
COMPANY AND ANY PERSONS PURPORTING TO PURCHASE ANY OF THE COLLATERAL FROM THE
COMPANY OTHER THAN AS PERMITTED BY THE INDENTURE.
4.5. NO CONSENT OF ANY OTHER PERSON AND NO CONSENT, AUTHORIZATION, APPROVAL,
OR OTHER ACTION BY, AND NO NOTICE TO OR FILING WITH, ANY GOVERNMENTAL AUTHORITY
OR REGULATORY BODY IS REQUIRED EITHER (1) FOR THE PLEDGE BY THE COMPANY OF THE
COLLATERAL PURSUANT TO THIS AGREEMENT OR FOR THE EXECUTION, DELIVERY OR
PERFORMANCE OF THIS AGREEMENT BY THE COMPANY (EXCEPT FOR ANY FILINGS NECESSARY
TO PERFECT LIENS ON THE COLLATERAL) OR (2) FOR THE EXERCISE BY THE TRUSTEE OF
THE RIGHTS PROVIDED FOR IN THIS AGREEMENT OR THE REMEDIES IN RESPECT OF THE
COLLATERAL PURSUANT TO THIS AGREEMENT.
4.6. NO LITIGATION, INVESTIGATION OR PROCEEDING OF OR BEFORE ANY ARBITRATOR
OR GOVERNMENTAL AUTHORITY IS PENDING OR, TO THE KNOWLEDGE OF THE COMPANY,
THREATENED BY OR AGAINST THE COMPANY WITH RESPECT TO THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
4.7. THE PLEDGE OF THE COLLATERAL PURSUANT TO THIS AGREEMENT IS NOT
PROHIBITED BY ANY APPLICABLE LAW OR GOVERNMENTAL REGULATION, RELEASE,
INTERPRETATION OR OPINION OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM OR OTHER REGULATORY AGENCY (INCLUDING, WITHOUT LIMITATION, REGULATIONS G,
T, U AND X OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM).
4.8. THE MATURITY DATES OF THE U.S. GOVERNMENT OBLIGATIONS IN WHICH THE
ESCROW ACCOUNT ARE INVESTED AND REINVESTED SO AS TO ENSURE THAT SUFFICIENT FUNDS
(OR, IF A PORTION OF THE NOTES HAS BEEN RETIRED BY THE COMPANY, FUNDS
REPRESENTING THE LESSER OF (I) THE AMOUNT SUFFICIENT TO PAY INTEREST THROUGH AND
INCLUDING MAY 15, 2000, ON THE NOTES NOT SO RETIRED AND (II) THE INTEREST
PAYMENTS WHICH HAVE NOT PREVIOUSLY BEEN MADE ON SUCH RETIRED NOTES FOR EACH
SCHEDULED INTEREST PAYMENT DATE THROUGH AND INCLUDING THE SCHEDULED INTEREST
PAYMENT DATE) ARE AVAILABLE TO MAKE THE FULL PAYMENTS OF THE FIRST FOUR
SCHEDULED INTEREST PAYMENTS ON THE NOTES.
5. COVENANTS
The Company covenants and agrees with the Escrow Agent, the Trustee and
the Holders of Notes from and after the date of this Agreement until the earlier
of payment in full in cash of (A) each of the first four scheduled interest
payments due on the Notes under the terms of the Indenture or (B) all
obligations (including, but not limited to all Obligations) due and owing under
the Indenture and the Notes in the event such obligations (including, but not
limited to all Obligations) become due and payable prior to the payment of the
first four scheduled interest payments on the Notes:
(i) The Company agrees that it shall not (a) sell or otherwise dispose of,
or grant any option or warrant with respect to, any of the Collateral or (b)
create or permit to exist any Lien upon or with respect to any of the Collateral
(except for the lien created pursuant to this Agreement) and, except as
otherwise provided in this Agreement, at all times shall be the sole beneficial
owner of the Collateral.
(ii) The Company agrees that it shall not (a) enter into any agreement or
understanding that purports to or may restrict or inhibit the Escrow Agent's or
the Trustee's rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the
7
112
Collateral in accordance with the terms of this Agreement or (b) fail to pay or
discharge any tax, assessment or levy of any nature not later than five days
prior to the date of any proposed sale under any judgment, writ or warrant of
attachment with regard to the Collateral.
6. REMEDIES UPON DEFAULT. IF ANY EVENT OF DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING:
(i) The Trustee may, without notice to the Company except as required by
law and at any time or from time to time, direct the Escrow Agent to liquidate
all Pledged Securities and transfer all funds in the Escrow Account to the
Trustee or the Paying Agent to apply such funds in accordance with the
provisions of the Indenture.
(ii) The Escrow Agent and/or the Trustee may also exercise in respect of the
Collateral, in addition to the other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code in effect at that time in the State of
New York (the "Code") (whether or not the Code applies to the affected
Collateral), and may also, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any of the Trustee's or the Escrow Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Trustee may deem
commercially reasonable. The Company agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to the Company of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Trustee and the Escrow Agent
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Trustee or the Escrow Agent may adjourn any public
or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(iii) Any cash held by the Escrow Agent as Collateral and all net cash
proceeds received by the Trustee or the Escrow Agent in respect of any sale or
liquidation of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Trustee, be held by the Trustee or
the Escrow Agent as collateral for, and/or then or at any time thereafter be
applied (after payment of any costs and expenses incurred in connection with any
sale, liquidation or disposition of or realization upon the Collateral and the
payment of any amounts payable to the Trustee or the Escrow Agent) in whole or
in part by the Trustee or the Escrow Agent for the ratable benefit of the
Holders of the Notes against, all or any part of the Secured Obligations in such
order as the Trustee shall elect. Any surplus of such cash or cash proceeds held
by the Trustee or the Escrow Agent and remaining after payment in full of all
the Secured Obligations and the costs and expenses incurred by and amounts
payable to the Trustee or the Escrow Agent hereunder or under the Indenture
shall be paid over to the Company or to whomsoever shall be lawfully entitled to
receive such surplus.
7. INDEMNITY AND AUTHORITY OF THE ESCROW AGENT.
7.1. THE ESCROW AGENT SHALL HAVE AND BE ENTITLED TO EXERCISE ALL POWERS
HEREUNDER THAT ARE SPECIFICALLY GRANTED TO THE ESCROW AGENT BY THE TERMS HEREOF,
TOGETHER WITH SUCH POWERS AS ARE REASONABLY INCIDENT THERETO. THE ESCROW AGENT
MAY PERFORM ANY OF ITS DUTIES HEREUNDER OR IN CONNECTION WITH THE ESCROW ACCOUNT
BY OR THROUGH AGENTS OR EMPLOYEES AND SHALL BE ENTITLED TO RETAIN COUNSEL OF ITS
CHOICE AND TO ACT IN RELIANCE UPON THE ADVICE OF SUCH COUNSEL CONCERNING ALL
SUCH MATTERS. NEITHER THE
8
113
ESCROW AGENT, THE TRUSTEE NOR ANY DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT
OF THE ESCROW AGENT OR THE TRUSTEE (EACH, AN "INDEMNIFIED PERSON") SHALL BE
RESPONSIBLE FOR THE VALIDITY, EFFECTIVENESS OR SUFFICIENCY HEREOF OR OF ANY
DOCUMENT OR SECURITY FURNISHED PURSUANT HERETO. THE ESCROW AGENT AND THE TRUSTEE
AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS AND AGENTS SHALL BE ENTITLED
TO RELY ON ANY COMMUNICATION, INSTRUMENT OR DOCUMENT REASONABLY BELIEVED BY IT
OR THEM TO BE GENUINE AND CORRECT AND TO HAVE BEEN SIGNED OR SENT BY THE PROPER
PERSON OR PERSONS. THE COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS THE ESCROW
AGENT AND THE TRUSTEE AND EACH INDEMNIFIED PERSON FROM AND AGAINST ANY AND ALL
COSTS, EXPENSES (INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
(INCLUDING THE REASONABLY ALLOCATED COSTS OF INSIDE COUNSEL)), CLAIMS AND
LIABILITIES INCURRED BY THE ESCROW AGENT OR SUCH INDEMNIFIED PERSON HEREUNDER
ARISING OUT OF OR INCURRED IN CONNECTION WITH SUCH PERSONS OR IN CONNECTION WITH
THE PERFORMANCE OF ITS DUTIES OR OBLIGATIONS HEREUNDER OR IN THE INDENTURE OR
EXERCISING ANY RIGHTS PROVIDED FOR HEREUNDER OR IN THE INDENTURE OR EXERCISING
ANY RIGHTS PROVIDED FOR HEREUNDER OR IN THE INDENTURE, UNLESS SUCH CLAIM OR
LIABILITY SHALL BE ATTRIBUTABLE TO BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF THE ESCROW AGENT OR THE TRUSTEE OR SUCH INDEMNIFIED
PERSON.
7.2. THE COMPANY ACKNOWLEDGES THAT THE RIGHTS AND RESPONSIBILITIES OF THE
ESCROW AGENT UNDER THIS AGREEMENT WITH RESPECT TO ANY ACTION TAKEN BY THE ESCROW
AGENT OR THE EXERCISE OR NON-EXERCISE BY THE ESCROW AGENT OF ANY OPTION, RIGHT,
REQUEST, JUDGMENT OR OTHER RIGHT OR REMEDY PROVIDED FOR HEREIN OR RESULTING OR
ARISING OUT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INDENTURE AND, AS BETWEEN
THE ESCROW AGENT AND THE COMPANY, THE ESCROW AGENT SHALL BE CONCLUSIVELY
PRESUMED TO BE ACTING AS AGENT FOR THE TRUSTEE WITH FULL AND VALID AUTHORITY SO
TO ACT OR REFRAIN FROM ACTING, AND THE COMPANY SHALL NOT BE OBLIGATED OR
ENTITLED TO MAKE ANY INQUIRY RESPECTING SUCH AUTHORITY.
7.3. NO PROVISION OF THIS AGREEMENT SHALL REQUIRE THE ESCROW AGENT OR THE
TRUSTEE TO EXPEND OR RISK ITS OWN FUNDS OR INCUR ANY LIABILITY. THE TRUSTEE
SHALL BE UNDER NO OBLIGATION TO EXERCISE ANY OF ITS RIGHTS AND POWERS UNDER THIS
AGREEMENT AT THE REQUEST OF ANY HOLDERS, UNLESS SUCH HOLDER SHALL HAVE OFFERED
TO THE TRUSTEE SECURITY AND INDEMNITY SATISFACTORY TO IT AGAINST ANY LOSS,
LIABILITY OR EXPENSE.
7.4. THE OBLIGATIONS OF THE COMPANY UNDER THIS SECTION 7 SHALL SURVIVE THE
SATISFACTION AND DISCHARGE OF THIS AGREEMENT.
To secure the Company's payment obligations in this Section 7,
the Trustee or Escrow Agent shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee or the Escrow Agent, except that held
in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Agreement.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) of the Indenture occurs,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
9
114
8. TERMINATION.
8.1. THIS AGREEMENT SHALL CREATE A CONTINUING SECURITY INTEREST IN AND TO
THE COLLATERAL AND SUCH SECURITY INTEREST SHALL, UNLESS OTHERWISE PROVIDED IN
THE INDENTURE OR IN THIS AGREEMENT, REMAIN IN FULL FORCE AND EFFECT UNTIL THE
EARLIER OF PAYMENT IN FULL IN CASH OF (A) EACH OF THE FIRST FOUR SCHEDULED
INTEREST PAYMENTS DUE ON THE NOTES UNDER THE TERMS OF THE INDENTURE OR (B) ALL
OBLIGATIONS (INCLUDING, BUT NOT LIMITED TO, ALL OBLIGATIONS) DUE AND OWING UNDER
THE INDENTURE AND THE NOTES IN THE EVENT SUCH OBLIGATIONS BECOME PAYABLE PRIOR
TO THE PAYMENT OF THE FIRST FOUR SCHEDULED INTEREST PAYMENTS ON THE NOTES. THIS
AGREEMENT SHALL BE BINDING UPON THE COMPANY, ITS SUCCESSORS AND ASSIGNS, AND
SHALL INURE, TOGETHER WITH THE RIGHTS AND REMEDIES OF THE TRUSTEE HEREUNDER, TO
THE BENEFIT OF THE TRUSTEE, THE ESCROW AGENT, THE HOLDERS OF NOTES AND THEIR
RESPECTIVE SUCCESSORS, TRANSFEREES AND ASSIGNS.
8.2. SUBJECT TO THE PROVISIONS OF SECTION 9.3 HEREOF, THIS AGREEMENT SHALL
TERMINATE UPON THE EARLIER OF PAYMENT IN FULL IN CASH OF (A) EACH OF THE FIRST
FOUR SCHEDULED INTEREST PAYMENTS DUE ON THE NOTES UNDER THE TERMS OF THE
INDENTURE OR (B) ALL OBLIGATIONS (INCLUDING, BUT NOT LIMITED TO, ALL
OBLIGATIONS) DUE AND OWING UNDER THE INDENTURE AND THE NOTES IN THE EVENT SUCH
OBLIGATIONS (INCLUDING, BUT NOT LIMITED TO ALL OBLIGATIONS) BECOME PAYABLE PRIOR
TO THE PAYMENT OF THE FIRST FOUR SCHEDULED INTEREST PAYMENTS ON THE NOTES. AT
SUCH TIME, THE TRUSTEE SHALL, AT THE WRITTEN REQUEST OF THE COMPANY, REASSIGN
AND REDELIVER TO THE COMPANY ALL OF THE COLLATERAL HEREUNDER THAT HAS NOT BEEN
SOLD, DISPOSED OF, RETAINED OR APPLIED BY THE TRUSTEE IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT AND THE INDENTURE. SUCH REASSIGNMENT AND REDELIVERY
SHALL BE WITHOUT WARRANTY (EITHER EXPRESS OR IMPLIED) BY OR RECOURSE TO THE
TRUSTEE, EXCEPT AS TO THE ABSENCE OF ANY PRIOR ASSIGNMENTS BY OR ENCUMBRANCES
CREATED BY THE TRUSTEE ON ITS INTEREST IN THE COLLATERAL, AND SHALL BE AT THE
EXPENSE OF THE COMPANY.
9. MISCELLANEOUS.
9.1. WAIVER. EITHER PARTY HERETO MAY SPECIFICALLY WAIVE ANY BREACH OF THIS
AGREEMENT BY ANY OTHER PARTY, BUT NO SUCH WAIVER SHALL BE DEEMED TO HAVE BEEN
GIVEN UNLESS SUCH WAIVER IS IN WRITING, SIGNED BY THE WAIVING PARTY, AND
SPECIFICALLY DESIGNATES THE BREACH WAIVED, NOR SHALL ANY SUCH WAIVER CONSTITUTE
A CONTINUING WAIVER OF SIMILAR OR OTHER BREACHES.
9.2. INVALIDITY. IF, FOR ANY REASON WHATSOEVER, ANY ONE OR MORE OF THE
PROVISIONS OF THIS AGREEMENT SHALL BE HELD OR DEEMED TO BE INOPERATIVE,
UNENFORCEABLE OR INVALID IN A PARTICULAR CASE OR IN ALL CASES, SUCH
CIRCUMSTANCES SHALL NOT HAVE THE EFFECT OF RENDERING ANY OF THE OTHER PROVISIONS
OF THIS AGREEMENT INOPERATIVE, UNENFORCEABLE OR INVALID, AND THE INOPERATIVE,
UNENFORCEABLE OR INVALID PROVISION SHALL BE CONSTRUED AS IF IT WERE WRITTEN SO
AS TO EFFECTUATE, TO THE MAXIMUM EXTENT POSSIBLE, THE PARTIES' INTENT.
9.3. SURVIVAL OF PROVISIONS. ALL REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE COMPANY CONTAINED HEREIN SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, AND SHALL TERMINATE ONLY UPON THE TERMINATION OF THIS AGREEMENT;
PROVIDED, HOWEVER, THAT THE COMPANY'S OBLIGATIONS PURSUANT TO SECTION 7 HEREOF
SHALL SURVIVE THE
10
115
TERMINATION OF THIS AGREEMENT (INCLUDING ANY TERMINATION UNDER APPLICABLE
BANKRUPTCY LAWS) OR THE RESIGNATION OR REMOVAL OF THE TRUSTEE OR THE ESCROW
AGENT.
9.4. ASSIGNMENT. THIS AGREEMENT SHALL INURE TO AND BE BINDING UPON THE
PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS; PROVIDED,
HOWEVER, THAT THE COMPANY MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF THE TRUSTEE, ACTING AT THE
DIRECTION OF THE HOLDERS AS PROVIDED IN THE INDENTURE.
9.5. ENTIRE AGREEMENT AMENDMENTS. THIS AGREEMENT AND THE INDENTURE CONTAIN
THE ENTIRE AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY AND ALL PRIOR AGREEMENTS, UNDERSTANDINGS AND COMMITMENTS WITH
RESPECT THERETO, WHETHER ORAL OR WRITTEN; PROVIDED, HOWEVER, THAT THIS AGREEMENT
IS EXECUTED AND ACCEPTED BY THE TRUSTEE AND THE ESCROW AGENT SUBJECT TO ALL
TERMS AND CONDITIONS OF ITS ACCEPTANCE OF THE TRUST UNDER THE INDENTURE, AS
FULLY AS IF SAID TERMS AND CONDITIONS WERE SET FORTH AT LENGTH HEREIN. THIS
AGREEMENT MAY BE AMENDED ONLY BY A WRITING SIGNED BY DULY AUTHORIZED
REPRESENTATIVES OF ALL PARTIES. THE TRUSTEE AND THE ESCROW AGENT MAY EXECUTE AN
AMENDMENT TO THIS AGREEMENT ONLY IF THE REQUISITE CONSENT OF THE HOLDERS OF THE
NOTES REQUIRED BY SECTION 9.02 OF THE INDENTURE HAS BEEN OBTAINED, UNLESS NO
SUCH CONSENT IS REQUIRED BY SUCH SECTION 9.02 OF THE INDENTURE.
9.6. NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO
BE GIVEN OR MADE UNDER THIS AGREEMENT TO ANY PARTY HERETO SHALL BE DELIVERED IN
WRITING BY HAND DELIVERY OR OVERNIGHT DELIVERY, OR SHALL BE DELIVERED BY
FACSIMILE OR TELEPHONICALLY WITH CONFIRMATION IN WRITING NOT MORE THAN
TWENTY-FOUR HOURS FOLLOWING SUCH TELEPHONIC NOTICE. A NOTICE GIVEN IN ACCORDANCE
WITH THE PRECEDING SENTENCE SHALL BE DEEMED TO HAVE BEEN DULY GIVEN UPON THE
SENDING THEREOF, EXCEPT FOR NOTICE TO THE TRUSTEE OR THE ESCROW AGENT, WHICH
SHALL BE DEEMED GIVEN ONLY WHEN RECEIVED. NOTICES SHOULD BE ADDRESSED AS
FOLLOWS:
To the Company:
Park `N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile number:(000) 000-0000
Telephone number:(000) 000-0000
With copies to:
Xxxxxxxxxx Xxxxxxxx, LLP
Suite 400
4101 Lake Xxxxx Trial
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. X'Xxxxxxx, Esq.
Facsimile number.: (000) 000-0000
Telephone number: (000) 000-0000
11
116
To the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
To the Escrow Agent:
State Street Bank and Trust Company
Xxxxxxx Square, 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
or at such other address, facsimile number or phone number as the specified
entity most recently may have designated in writing in accordance with this
paragraph to the other parties.
12
117
9.7. EXPENSES. THE COMPANY SHALL FROM TIME TO TIME PAY TO THE TRUSTEE AND
THE ESCROW AGENT THEIR REASONABLE FEES AND EXPENSES AND ANY REASONABLE FEES AND
EXPENSES OF THEIR COUNSEL, THAT THE TRUSTEE AND ESCROW AGENT MAY INCUR IN
CONNECTION WITH (A) THE ADMINISTRATION OF THIS AGREEMENT; (B) THE CUSTODY OR
PRESERVATION OF, OR THE SALE OF, COLLECTION FROM, OR OTHER REALIZATION UPON, ANY
OF THE COLLATERAL; (C) THE EXERCISE OR ENFORCEMENT OF ANY OF THE RIGHTS OF THE
TRUSTEE AND ESCROW AGENT AND THE HOLDERS OF NOTES HEREUNDER; OR (D) THE FAILURE
BY THE COMPANY TO PERFORM OR OBSERVE ANY OF THE PROVISIONS HEREOF, IN EACH CASE
OTHER THAN ANY SUCH EXPENSES THAT ARISE FROM THE BAD FAITH, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE TRUSTEE OR ESCROW AGENT.
9.8. SECURITY INTEREST ABSOLUTE. ALL RIGHTS OF THE TRUSTEE AND THE HOLDERS
OF NOTES AND SECURITY INTERESTS HEREUNDER, AND ALL OBLIGATIONS OF THE COMPANY
HEREUNDER, SHALL BE ABSOLUTE AND UNCONDITIONAL IRRESPECTIVE OF (A) ANY LACK OF
VALIDITY OR ENFORCEABILITY OF THE INDENTURE OR ANY OTHER AGREEMENT OR INSTRUMENT
RELATING THERETO; (B) ANY CHANGE IN THE TIME, MANNER OR PLACE OF PAYMENT OF, OR
IN ANY OTHER TERM OF, ALL OR ANY OF THE SECURED OBLIGATIONS, OR ANY OTHER
AMENDMENT OR WAIVER OF OR ANY CONSENT TO ANY DEPARTURE FROM THE INDENTURE; (C)
ANY EXCHANGE, SURRENDER, RELEASE OR NON-PERFECTION OF ANY LIENS ON ANY OTHER
COLLATERAL FOR ALL OR ANY OF THE SECURED OBLIGATIONS; OR (D) TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY OTHER CIRCUMSTANCE WHICH MIGHT OTHERWISE
CONSTITUTE A DEFENSE AVAILABLE TO, OR A DISCHARGE OF, THE COMPANY IN RESPECT OF
THE SECURED OBLIGATIONS OR OF THIS AGREEMENT.
9.9. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. DELIVERY OF AN EXECUTED
COUNTERPART OF A SIGNATURE PAGE TO THIS AGREEMENT BY FACSIMILE SHALL BE
EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS AGREEMENT.
9.10. LIMITATION BY LAW. ALL RIGHTS, REMEDIES AND POWERS PROVIDED HEREIN MAY
BE EXERCISED ONLY TO THE EXTENT THAT THEY SHALL NOT RENDER THIS AGREEMENT NOT
ENTITLED TO BE RECORDED, REGISTERED OR FILED UNDER PROVISIONS OF ANY APPLICABLE
LAW.
9.11. RIGHTS OF HOLDERS OF NOTES. NO HOLDER OF NOTES SHALL HAVE ANY
INDEPENDENT RIGHTS HEREUNDER OTHER THAN THOSE RIGHTS GRANTED TO INDIVIDUAL
HOLDERS OF NOTES PURSUANT TO SECTION 6.06 OF THE INDENTURE; PROVIDED THAT
NOTHING IN THIS SUBSECTION SHALL LIMIT ANY RIGHTS GRANTED TO THE TRUSTEE UNDER
THE INDENTURE.
9.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF DAMAGES.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER THE LAWS OF
THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH. RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY, THE
TRUSTEE, THE ESCROW AGENT AND THE HOLDERS OF NOTES IN CONNECTION WITH THIS
AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAWS PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
13
118
(ii) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH AND IN PARAGRAPH (vi) BELOW,
THE COMPANY, THE TRUSTEE, THE ESCROW AGENT AND THE HOLDERS OF NOTES AGREE THAT
ALL DISPUTES BETWEEN OR AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK,
BUT THE COMPANY, THE TRUSTEE, THE ESCROW AGENT AND THE HOLDERS OF NOTES
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF NEW YORK, NEW YORK. THE COMPANY WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS.
(iii) THE COMPANY AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS TRUSTEE
OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE COMPANY OR ITS
PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND
HAVING PERSONAL OR IN REM JURISDICTION OVER THE COMPANY OR ITS PROPERTY, AS THE
CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE COMPANY
AGREES THAT IT SHALL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSS CLAIMS IN
ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH
COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH
PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE COMPANY WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE TRUSTEE HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS.
(iv) THE COMPANY, THE TRUSTEE AND THE ESCROW AGENT EACH WAIVE ANY AND ALL
RIGHTS TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, OR RELATING OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM PURSUANT TO, UNDER OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ALL DISPUTES RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(v) THE COMPANY HEREBY IRREVOCABLY DESIGNATES CT CORPORATION AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE COMPANY TO RECEIVE, FOR AND ON BEHALF OF
THE COMPANY, SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT. IT IS UNDERSTOOD THAT NOTICE AND A COPY OF SUCH PROCESS
SERVED ON SUCH AGENT WILL BE FORWARDED PROMPTLY TO THE COMPANY, BUT THE FAILURE
OF THE COMPANY
14
119
TO RECEIVE SUCH NOTICE AND COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
COMPANY AT ITS ADDRESS SET FORTH IN SECTION 11.02 OF THE INDENTURE, SUCH SERVICE
TO BECOME EFFECTIVE FIVE (5) BUSINESS DAYS AFTER SUCH MAILING.
(vi) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ESCROW AGENT, THE TRUSTEE
OR ANY HOLDER OF NOTES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY
OTHER JURISDICTION.
(vii) THE COMPANY AGREES THAT NEITHER THE TRUSTEE, THE ESCROW AGENT NOR ANY
HOLDER OF NOTES SHALL HAVE ANY LIABILITY TO THE COMPANY (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE COMPANY IN CONNECTION
WITH, ARISING OUT OF, OR IN ANY WAY RELATING OR INCIDENTAL TO, THE TRANSACTIONS
CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY
A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE,
THE ESCROW AGENT OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES
WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE TRUSTEE, THE ESCROW
AGENT OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, CONSTITUTING BAD FAITH, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(viii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, THE COMPANY WAIVES ALL RIGHTS OF NOTICE AND HEARING
OF ANY KIND PRIOR TO THE EXERCISE BY THE TRUSTEE, THE ESCROW AGENT OR ANY HOLDER
OF NOTES OF ITS RIGHTS DURING THE CONTINUANCE OF AN EVENT OF DEFAULT TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL OR OTHER SECURITY FOR THE SECURED OBLIGATIONS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE COMPANY WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE TRUSTEE, THE ESCROW AGENT OR ANY HOLDER OF NOTES IN
CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF,
REPLEVY. ATTACH OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE SECURED
OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE TRUSTEE, THE ESCROW AGENT OR ANY HOLDER OF NOTES, OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION,
THIS AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE COMPANY ON THE ONE
HAND AND THE TRUSTEE, THE ESCROW AGENT AND/OR THE HOLDERS OF NOTES ON THE OTHER
HAND.
15
120
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Pledge, Escrow and Disbursement Agreement as of the day first written above.
COMPANY: PARK `N VIEW, INC.
By
---------------------------------------
Name:
Title:
TRUSTEE: STATE STREET BANK AND TRUST COMPANY
By
---------------------------------------
Name:
Title:
ESCROW AGENT: STATE STREET BANK AND TRUST COMPANY
By
---------------------------------------
Name:
Title:
16
121
EXHIBIT A
[Form of Certificate for Release of Funds to [Company] [Paying Agent]]
PARK `N VIEW, INC.
Date:
-------
The undersigned officer of Park `N View, Inc., a Delaware corporation (the
"Company"), hereby certifies, pursuant to Section [3.l][3.2] of the Pledge,
Escrow and Disbursement Agreement dated as of May 27, 1998 (the "Escrow and
Disbursement Agreement") by and among the Company, State Street Bank and Trust
Company, as trustee (the "Trustee"), and State Street Bank and Trust Company as
escrow agent (the "Escrow Agent"), under the Indenture dated as of May 27, 1998
(the "Indenture"), between the Company and the Trustee, that:
The release of funds has been duly authorized by all necessary
corporation action and does not contravene, or constitute a default
under, any provision of applicable law or regulation or the certificate
of incorporation of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company
or result in the creation or imposition of any Lien on any assets of
the Company.
The Company hereby requests the Trustee to direct the Escrow
Agent to liquidate $_________ worth of Pledged Securities in the Escrow Account
by not later than 12:00 noon (New York time) on _________ , 199 and to transfer
$________ in immediately available funds to [the Company] [the Paying Agent].
Capitalized terms used herein without definition shall have
the meanings set forth in the Escrow and Disbursement Agreement.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
