EXHIBIT 4.2
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FOX/LIBERTY NETWORKS, LLC,
and
FLN FINANCE, INC.
to
THE BANK OF NEW YORK
as Trustee
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Indenture
Dated as of August 25, 1997
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$500,000,000 8-7/8% Senior Notes due 2007, Series A
$500,000,000 8-7/8% Senior Notes due 2007, Series B
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions
of General Application............................ 2
SECTION 1.1 Definitions............................................... 2
Acquired Indebtedness............................................ 3
Act .......................................................... 3
Affiliate........................................................ 3
Asset Acquisition................................................ 3
Asset Sale....................................................... 3
Asset Sale Offer................................................. 4
Asset Sale Offer Price........................................... 4
Asset Sale Purchase Date......................................... 4
Attributable Value............................................... 4
Authenticating Agent............................................. 5
Average Life to Stated Maturity.................................. 5
Bank Credit Agreement............................................ 5
Board of Directors............................................... 5
Board Resolution................................................. 5
Business Day..................................................... 5
Capital Stock.................................................... 6
Capitalized Lease Obligation..................................... 6
Cash Equivalents................................................. 6
Cedel .......................................................... 7
Change of Control................................................ 7
Change of Control Offer.......................................... 8
Change of Control Purchase Date.................................. 8
Change of Control Purchase Price................................. 8
Code .......................................................... 8
Collateral....................................................... 8
Commission....................................................... 8
Common Stock..................................................... 8
Company.......................................................... 8
Company Request.................................................. 8
Company Order.................................................... 8
Consolidated Cash Flow........................................... 9
Consolidated Income Tax Expense.................................. 9
Consolidated Interest Expense.................................... 9
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
i
Page
Consolidated Net Income.......................................... 10
Consolidated Net Tangible Assets................................. 11
Consolidated Non-cash Charges.................................... 11
control.......................................................... 11
Corporate Trust Office........................................... 11
corporation...................................................... 11
Covenant Defeasance.............................................. 11
Default.......................................................... 11
Defeasance....................................................... 11
Deposit Account.................................................. 12
Deposit Agent.................................................... 12
Deposit Agreement................................................ 12
Deposit Event.................................................... 12
Deposit Funds.................................................... 12
Deposit Offer.................................................... 12
Depository....................................................... 12
Disinterested Member of the Board of Directors of the Company.... 12
Entertainment/Programming Business............................... 12
Euroclear........................................................ 12
Event of Default................................................. 13
Excess Proceeds.................................................. 13
Exchange Act..................................................... 13
Fair Market Value................................................ 13
GAAP .......................................................... 13
Global Securities................................................ 13
Government Securities............................................ 13
guarantee........................................................ 13
Holder .......................................................... 14
Indebtedness..................................................... 14
Indenture........................................................ 15
Independent Financial Advisor.................................... 15
Initial Purchasers............................................... 15
Initial Securities............................................... 16
Interest Payment Date............................................ 16
Interest Rate Protection Agreement............................... 16
Interest Rate Protection Obligations............................. 16
Investment....................................................... 16
Issue Date....................................................... 16
Lien .......................................................... 16
Marketable Securities............................................ 17
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
ii
Page
Xxxxxxx Xxxxx.................................................... 17
Xxxxx'x.......................................................... 17
Net Cash Proceeds................................................ 17
Non-U.S. Person.................................................. 17
Notice of Default................................................ 17
Offer .......................................................... 18
Offer to Purchase................................................ 18
Offering Memorandum.............................................. 21
Officers' Certificate............................................ 21
144A Global Security............................................. 21
Opinion of Counsel............................................... 21
Outstanding...................................................... 21
Paying Agent..................................................... 22
Permitted Holder................................................. 23
Permitted Indebtedness........................................... 23
Permitted Investments............................................ 26
Permitted Liens.................................................. 26
Person .......................................................... 29
Preferred Stock.................................................. 29
Private Exchange Securities...................................... 29
Private Placement Legend......................................... 29
Public Equity Offering........................................... 29
Purchase Date.................................................... 30
Qualified Equity Interest........................................ 30
Qualified Institutional Buyer.................................... 30
QIB .......................................................... 30
Rainbow Consummation............................................. 30
Record Expiration Date........................................... 30
Redeemable Capital Stock......................................... 30
Redemption Date.................................................. 30
Redemption Price................................................. 30
Registrable Securities........................................... 30
Registration Rights Agreement.................................... 30
Regular Record Date.............................................. 31
Regulation S..................................................... 31
Regulation S Global Security..................................... 31
Replacement Assets............................................... 31
Required Filing Dates............................................ 31
Responsible Officer.............................................. 31
Restricted Payments.............................................. 31
Restricted Period................................................ 31
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iii
Page
Restricted Security.............................................. 31
Restricted Subsidiary............................................ 32
Revocation....................................................... 32
Rule 144A........................................................ 32
Sale-Leaseback Transaction....................................... 32
S&P .......................................................... 32
Securities....................................................... 32
Securities Act................................................... 32
Security Register................................................ 32
Security Registrar............................................... 32
Senior Discount Notes............................................ 32
Significant Subsidiary........................................... 32
Special Purpose Vehicle.......................................... 33
Special Record Date.............................................. 33
Stated Maturity.................................................. 33
Strategic Equity Investor........................................ 33
Subordinated Indebtedness........................................ 33
Subsidiary....................................................... 33
Trustee.......................................................... 34
Trust Indenture Act.............................................. 34
Unrestricted Securities.......................................... 34
Unrestricted Subsidiary.......................................... 34
U.S. Government Obligation....................................... 35
Vice President................................................... 35
Voting Stock..................................................... 35
SECTION 1.2 Compliance Certificates and Opinions...................... 35
SECTION 1.3 Form of Documents Delivered to Trustee.................... 36
SECTION 1.4 Acts of Holders; Record Dates............................. 37
SECTION 1.5 Notices to Trustee and Company and Xxxxx.................. 40
SECTION 1.6 Notice to Holders; Waiver................................. 41
SECTION 1.7 Conflict with Trust Indenture Act......................... 41
SECTION 1.8 Effect of Headings and Table of Contents.................. 42
SECTION 1.9 Successors and Assigns.................................... 42
SECTION 1.10 Separability Clause....................................... 42
SECTION 1.11 Benefits of Indenture..................................... 42
SECTION 1.12 Governing Law............................................. 42
SECTION 1.13 Legal Holidays............................................ 42
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iv
Page
ARTICLE II
Security Forms................................ 43
SECTION 2.1 Forms Generally........................................... 43
ARTICLE III
The Securities................................ 43
SECTION 3.1 Title and Terms........................................... 43
SECTION 3.2 Denominations............................................. 44
SECTION 3.3 Execution, Authentication, Delivery and Dating............ 45
SECTION 3.4 Temporary Securities...................................... 46
SECTION 3.5 Registration, Registration of Transfer and Exchange....... 47
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.......... 49
SECTION 3.7 Payment of Interest; Rights Preserved..................... 50
SECTION 3.8 Persons Deemed Owners..................................... 51
SECTION 3.9 Cancellation.............................................. 52
SECTION 3.10 Computation of Interest................................... 52
SECTION 3.11 CUSIP and CINS Numbers.................................... 52
SECTION 3.12 Deposits of Monies........................................ 52
SECTION 3.13 Book-Entry Provision for Global Securities................ 53
SECTION 3.14 Special Transfer Provisions............................... 54
ARTICLE IV
Satisfaction and Discharge.......................... 58
SECTION 4.1 Satisfaction and Discharge of Indenture................... 58
SECTION 4.2 Application of Trust Money................................ 59
ARTICLE V
Remedies................................... 60
SECTION 5.1 Events of Default......................................... 60
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........ 63
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vi
Page
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee...................... 64
SECTION 5.4 Trustee May File Proofs of Claim..................................................... 66
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.......................... 66
SECTION 5.6 Application of Money Collected....................................................... 67
SECTION 5.7 Limitation on Suits.................................................................. 67
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest............ 68
SECTION 5.9 Restoration of Rights and Remedies................................................... 68
SECTION 5.10 Rights and Remedies Cumulative....................................................... 69
SECTION 5.11 Delay or Omission Not Waiver......................................................... 69
SECTION 5.12 Control by Holders................................................................... 69
SECTION 5.13 Waiver of Past Defaults.............................................................. 70
SECTION 5.14 Undertaking for Costs................................................................ 70
SECTION 5.15 Waiver of Stay or Extension Laws..................................................... 71
ARTICLE VI
The Trustee............................................................ 71
SECTION 6.1 Certain Duties and Responsibilities.................................................. 71
SECTION 6.2 Notice of Defaults................................................................... 73
SECTION 6.3 Certain Rights of Trustee............................................................ 73
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities............................... 75
SECTION 6.5 May Hold Securities.................................................................. 76
SECTION 6.6 Money Held in Trust.................................................................. 76
SECTION 6.7 Compensation and Reimbursement....................................................... 76
SECTION 6.8 Conflicting Interests................................................................ 77
SECTION 6.9 Corporate Trustee Required; Eligibility.............................................. 77
SECTION 6.10 Resignation and Removal; Appointment of Successor.................................... 78
SECTION 6.11 Acceptance of Appointment by Successor............................................... 80
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.................................................. 81
SECTION 6.13 Preferential Collection of Claims Against Company or
Xxxxx..................................................... 81
SECTION 6.14 Appointment of Authenticating Agent....................... 81
ARTICLE VII
Holders' Lists and Reports by Trustee and Company......... 83
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders. 83
SECTION 7.2 Preservation of Information; Communications to Holders.... 84
SECTION 7.3 Reports by Trustee........................................ 84
SECTION 7.4 Reports by Company........................................ 85
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease...... 85
SECTION 8.1 Company May Consolidate, Etc. Only on Certain Terms....... 85
SECTION 8.2 Successor Substituted..................................... 87
ARTICLE IX
Amendments; Waivers; Supplemental Indentures.............. 87
SECTION 9.1 Amendments, Waivers and Supplemental Indentures Without
Consent of Holders........................................ 87
SECTION 9.2 Modifications, Amendments and Supplemental Indentures with
Consent of Holders........................................ 88
SECTION 9.3 Execution of Supplemental Indentures...................... 90
SECTION 9.4 Effect of Supplemental Indentures......................... 90
SECTION 9.5 Conformity with Trust Indenture Act....................... 90
SECTION 9.6 Reference in Securities to Supplemental Indentures........ 91
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
ARTICLE X
Covenants................................................. 91
SECTION 10.1 Payment of Principal, Premium and Interest................ 91
SECTION 10.2 Maintenance of Office or Agency........................... 91
SECTION 10.3 Money for Security Payments to be Held in Trust........... 92
SECTION 10.4 Existence; Activities of Xxxxx............................ 94
SECTION 10.5 Maintenance of Properties................................. 94
SECTION 10.6 Payment of Taxes and Other Claims......................... 94
SECTION 10.7 Maintenance of Insurance.................................. 95
SECTION 10.8 Limitation on Indebtedness................................ 95
SECTION 10.9 Limitation on Restricted Payments......................... 96
SECTION 10.10 Limitation on Preferred Stock of Restricted Subsidiaries..100
SECTION 10.11 Limitation on Transactions with Affiliates................101
SECTION 10.12 Limitations on Liens......................................102
SECTION 10.13 Change of Control.........................................102
SECTION 10.14 Disposition of Proceeds of Asset Sales....................103
SECTION 10.15 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.........................106
SECTION 10.16 Limitation on Guarantees by Restricted Subsidiaries.......108
SECTION 10.17 Limitations on Sale-Leaseback Transactions................108
SECTION 10.18 Limitations on Designation of Unrestricted Subsidiaries...109
SECTION 10.19 Provision of Financial Information........................111
SECTION 10.20 Statement by Officers as to Default; Compliance
Certificates..............................................112
SECTION 10.21 Deposit of Funds with Deposit Agent: Offer to Purchase
upon a Deposit Event......................................112
SECTION 10.22 Waiver of Certain Covenants...............................115
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
ix
Page
ARTICLE XI
Redemption of Securities..................................115
SECTION 11.1 Right of Redemption.......................................115
SECTION 11.2 Applicability of Article..................................116
SECTION 11.3 Election to Redeem; Notice to Trustee.....................116
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.........116
SECTION 11.5 Notice of Redemption......................................117
SECTION 11.6 Deposit of Redemption Price...............................118
SECTION 11.7 Securities Payable on Redemption Date.....................118
SECTION 11.8 Securities Redeemed in Part...............................119
ARTICLE XII
Defeasance and Covenant Defeasance........................119
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance................................................119
SECTION 12.2 Defeasance and Discharge..................................119
SECTION 12.3 Covenant Defeasance.......................................120
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance...........121
SECTION 12.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions...................124
SECTION 12.6 Reinstatement.............................................125
ARTICLE XIII
COLLATERAL AND SECURITY...................................125
SECTION 13.1 Deposit Agreement.........................................125
SECTION 13.2 Recording and Opinions....................................127
SECTION 13.3 Release of Collateral.....................................127
SECTION 13.4 Certificates of the Company...............................128
SECTION 13.5 Authorization of Actions to be Taken by the Trustee Under
the Deposit Agreement.....................................128
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
SECTION 13.6 Authorization of Receipt of Funds by the Trustee
Under the Deposit Agreement...............................129
SECTION 13.7 Termination of Security Interest..........................129
Form of Reverse of Security...........................................B-1-4
Exhibit A Schedule of Indebtedness
Exhibit B-1 Form of Series A Security
Exhibit B-2 Form of Series B Security
Exhibit C Global Securities Legend
Exhibit D Transfer Letter
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
xi
INDENTURE, dated as of August 25, 1997, between Fox/Liberty Networks,
LLC, a limited liability company duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and FLN Finance, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called "Xxxxx"), as co-obligors, each having its principal office at
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and The Bank of
New York, a New York banking corporation, having its principal corporate trust
office located at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company and Xxxxx have duly authorized the creation of an
issue of 8-7/8% Senior Notes due 2007 (the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company and
Xxxxx have duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and Xxxxx and authenticated and delivered hereunder and duly issued by
the Company and Xxxxx the valid obligations of the Company and Xxxxx, and to
make this Indenture a valid agreement of the Company and Xxxxx, in accordance
with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.1 Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such
is indicated herein);
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case
may be, of this Indenture;
(5) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(6) each reference herein to a rule or form of the Commission
shall mean such rule or form and any rule or form successor thereto, in
each case as amended from time to time.
Certain terms, used principally in Article VI, are defined in
that Article.
Whenever this Indenture requires that a particular ratio or
amount be calculated with respect to a
2
specified period after giving effect to certain transactions or events on a pro
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forma basis, such calculation shall be made as if the transactions or events
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occurred on the first day of such period, unless otherwise specified.
"Acquired Indebtedness" means Indebtedness of a Person (a)
assumed in connection with an Asset Acquisition from such Person or (b) existing
at the time such Person becomes a Subsidiary of any other Person and not
incurred in connection with, or in contemplation of, such Asset Acquisition or
such Person becoming a Subsidiary.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person, (ii) any other Person
that owns, directly or indirectly, 10% or more of such specified Person's
Capital Stock, (iii) any officer or director of (A) any such specified Person,
(B) any Subsidiary of such specified Person or (C) any Person described in
clauses (i) or (ii) above or (iv) the spouse of any natural Person described in
clauses (i), (ii) or (iii) above or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such spouse.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person which
constitute all or substantially all of the assets of such Person, any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition by the Company or any Restricted Subsidiary of the
Company to any Person other than the Company or a Restricted Subsidiary of the
3
Company, in one or a series of related transactions, of (a) any Capital Stock of
any Subsidiary of the Company; (b) all or substantially all of the properties
and assets of any division or line of business of the Company or any Restricted
Subsidiary of the Company; or (c) any other properties or assets of the Company
or any Restricted Subsidiary of the Company other than in the ordinary course of
business in any individual or series of related transactions yielding proceeds
of more than $1,000,000. For the purposes of this definition, the term "Asset
Sale" shall not include any sale, issuance, conveyance, transfer, lease or other
disposition of properties or assets that is governed by the provisions described
under Article VIII.
"Asset Sale Offer" has the meaning specified in
Section 10.14.
"Asset Sale Offer Price" has the meaning speci-
fied in Section 10.14.
"Asset Sale Purchase Date" has the meaning
specified in Section 10.14.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capitalized Lease
Obligation, and at any date as of which the amount thereof is to be determined,
the total net amount of rent required to be paid by such Person under such lease
during the remaining term thereof (whether or not such lease is terminable at
the option of the lessee prior to the end of such term), including any period
for which such lease has been, or may, at the option of the lessor, be extended,
discounted from the last date of such term to the date of determination at a
rate per annum equal to the discount rate which would be applicable to a
Capitalized Lease Obligation with like term in accordance with GAAP. The net
amount of rent required to be paid under any lease for any such period shall be
the aggregate amount of rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges.
"Attributable Value" means, as to a Capitalized Lease Obligation under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the capitalized amount
4
thereof that would appear on the face of a balance sheet of such Person in
accordance with GAAP.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 hereof to act on behalf of the Trustee to authenticate
Securities.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness and (b) the
amount of each such principal payment by (ii) the sum of all such principal
payments.
"Bank Credit Agreement" means the Credit Agreement to be entered
into among the Company and certain of its Subsidiaries, the lenders named
therein, and The Chase Manhattan Bank N.A., as Agent, including any deferrals,
renewals, waivers, extensions, replacements, refinancings or refundings thereof
in accordance with this Indenture, including any amendments, modifications or
supplements thereto and including any related notes, guarantees, security
agreements, pledge agreements, mortgages and other collateral documents executed
in connection therewith.
"Board of Directors" means the board of directors of a company or
its equivalent, including managers of a limited liability company or members of
a member managed limited liability company, general partners of a partnership or
trustees of a business trust, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close.
5
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person's capital stock or equity participations, and any
rights (other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock and, including,
without limitation, with respect to partnerships, limited liability companies or
business trusts, ownership interests (whether general or limited) and 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, such partnerships,
limited liability companies or business trusts.
"Capitalized Lease Obligation" means any obligation under a lease
of (or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of one year or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit,
time deposits or bankers' acceptances with a maturity of 180 days or less of any
financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than
$500,000,000, whose commercial paper is rated at least A-1 by S&P or at least
P-1 by Xxxxx'x or at least an equivalent rating category of another nationally
recognized rating agency or, if such financial institution does not have issued
and outstanding commercial paper, whose debt is rated at least A by Xxxxx'x or
at least an equivalent rating category of another nationally recognized rating
agency; (iii) commercial paper with a maturity of 90 days or less issued by a
corporation that is not an Affiliate of the Company organized under the laws of
any state of the United States or the District of Columbia and rated at least
A-1 by S&P or at least P-1 by
6
Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; and (iv) repurchase agreements and reverse
repurchase agreements relating to (x) commercial paper that meets the
requirements of clause (iii) above or (y) any evidence of Indebtedness that
meets the requirements of clause (i) above; provided that the terms of such
--------
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
"Cedel" means Cedel Bank, Societe anonyme.
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"Change of Control" means the occurrence of any of the following
events: (a) (i) the Permitted Holders cease to own at least 50% of the total
Voting Stock of the Company or (ii) The News Corporation Limited and its
Affiliates cease to own at least 30% of the total Voting Stock of the Company;
or (b) the Company consolidates with, or merges with or into, another Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of the Company is converted
into or exchanged for Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation and (ii) the Permitted Holders own at least
50% of the total Voting Stock of the surviving or transferee corporation and
(iii) The News Corporation Limited and its Affiliates own at least 30% of the
total Voting Stock of the surviving or transferee corporation; or (c) during any
consecutive two-year period, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by a vote of 66-2/3% of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute at least 50% of the Board of
Directors of the Company then in office; or (d) the Company is liqui-
7
dated or dissolved or adopts a plan of liquidation or any order, judgment or
decree shall be entered against the Company decreeing the dissolution or splitup
of the Company and such order shall remain undischarged or unstayed for a period
in excess of 60 days.
"Change of Control Offer" has the meaning
specified in Section 10.13.
"Change of Control Purchase Date" has the mean-
ing specified in Section 10.13.
"Change of Control Purchase Price" has the
meaning specified in Section 10.13.
"Code" means the Internal Revenue Code, as amended from time to
time, and the rules and regulations thereunder.
"Collateral" has the meaning provided in Sec-
tion 6(a) of the Deposit Agreement.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of, such Person's common stock,
whether outstanding at the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Chief
Executive
8
Officer, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Cash Flow" means, with respect to any Person for
any period, (i) the sum of, without duplication, the amounts for such period,
taken as a single accounting period, of (a) Consolidated Net Income, (b)
Consolidated Non-cash Charges, (c) Consolidated Interest Expense, (d)
Consolidated Income Tax Expense (other than income tax expense (either positive
or negative) attributable to extraordinary and nonrecurring gains or losses),
(e) an amount equal to any extraordinary and nonrecurring losses (to the extent
such losses were deducted in computing Consolidated Net Income), and (f) the
amount of the one-time write down incurred by the Company in 1996 related to
additional amortization recorded with respect to long term sports programming
rights contracts with Major League Baseball and certain collegiate conferences,
less (ii) non-cash items increasing Consolidated Net Income; provided, however,
-------- -------
that if, during such period, such Person or any of its Restricted Subsidiaries
shall have made any Asset Sales or Asset Acquisitions or if the computation of
Consolidated Cash Flow is made in connection with any such Asset Sale or Asset
Acquisition, Consolidated Cash Flow for such Person and its Restricted
Subsidiaries for such period shall be adjusted to give pro forma effect to the
Consolidated Cash Flow directly attributable to the assets which are the subject
of such Asset Sales or Asset Acquisitions during such period.
"Consolidated Income Tax Expense" means, with respect to any
Person for any period, the provision for federal, state, local and foreign
income taxes of such Person and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred
9
payment obligation, (d) all commissions, discounts and other fees and charges
owed with respect to letters of credit, bankers' acceptance financing or similar
facilities and (e) all capitalized and accrued interest and (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period and (iii) the aggregate amount of dividends and other distributions paid
or accrued during such period in respect of Redeemable Capital Stock (other than
payments made in respect of the redemption of such Redeemable Capital Stock
(other than accrued and unpaid dividends thereon)) of such Person and its
Restricted Subsidiaries, in each case determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for
any period, the consolidated net income (or loss) of such Person and its
Restricted Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income, by excluding,
without duplication, (i) all extraordinary gains or losses (net of fees and
expenses relating to the transaction giving rise thereto), (ii) the portion of
net income of such Person and its Restricted Subsidiaries derived from or in
respect of Investments in Persons other than Restricted Subsidiaries, except to
the extent that cash dividends or distributions have actually been received by
such Person or one of its Restricted Subsidiaries, (iii) net income (or loss) of
any Person combined with such Person or one of its Restricted Subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (iv) gains or losses in respect of any Asset Sales by such Person
or one of its Restricted Subsidiaries (net of fees and expenses relating to the
transaction giving rise thereto), on an after-tax basis, (v) the net income of
any Restricted Subsidiary of such Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time permitted, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that Restricted Subsidiary or its
stockholders and (vi) any gain or loss realized as a result of the cumulative
effect of a change in accounting principles.
10
"Consolidated Net Tangible Assets" means, with respect to any
Person as of any date, (a) all amounts that would be shown as assets on a
consolidated balance sheet of such Person and its Restricted Subsidiaries
prepared in accordance with GAAP, less (b) the amount thereof constituting
goodwill and other intangible assets as calculated in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
charges constituting an extraordinary item or loss or any such charge which
requires an accrual of or a reserve for cash charges for any future period).
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which address as of the date of this Indenture is located at 000
Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention: Corporate
Trust, Trustee Administration.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified
in Section 12.3.
"Default" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"Defeasance" has the meaning specified in
Section 12.2.
11
"Deposit Account" has the meaning set forth in
Section 2 of the Deposit Agreement.
"Deposit Agent" has the meaning set forth in
the first paragraph of the Deposit Agreement.
"Deposit Agreement" means the Deposit Agreement for the Senior
Notes, dated as of August 25, 1997, among the Company, the Trustee and the
Deposit Agent, as amended and in effect from time to time.
"Deposit Event" means the non-occurrence of the Rainbow
Consummation on or prior to December 30, 1997.
"Deposit Funds" has the meaning set forth in
Section 1 of the Deposit Agreement.
"Deposit Offer" has the meaning specified in
Section 10.21 of this Indenture.
"Depository" means The Depository Trust Compa-
ny, or its successor.
"Disinterested Member of the Board of Directors of the Company"
means, with respect to any transaction or series of transactions, a member of
the Board of Directors of the Company other than a member who has any material
direct or indirect financial interest in or with respect to such transaction or
series of transactions or who is an officer, director or an employee of any
Person who has any direct or indirect financial interest in or with respect to
such transaction or series of transactions (other than the Company or a
Restricted Subsidiary of the Company).
"Entertainment/Programming Business" means a domestic business
engaged primarily in the ownership, operation, acquisition, development,
production or syndication of sports or general entertainment programming or any
other domestic business engaged in by the Company on the Issue Date.
"Euroclear" means Xxxxxx Guaranty Trust Company
of New York, Brussels Office, as operator of the
Euroclear System.
12
"Event of Default" has the meaning specified in
Section 5.1.
"Excess Proceeds" has the meaning specified in
Section 10.14.
"Exchange Act" means the Securities Exchange
Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset, the price
which could be negotiated in an arm's- length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction; provided, however, that, except with
respect to any Asset Sale which involves an asset or assets constituting less
than $25,000,000, the determination of the Fair Market Value of any asset or
assets shall be approved by the Board of Directors of the Company, whose good
faith determination shall be conclusive and shall be evidenced by resolutions of
the Board of Directors of the Company delivered to the Trustee.
"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 may be approved by a significant segment of
the accounting profession of the United States of America, which are applicable
at the date of the Indenture.
"Global Securities" means one or more Regulation S Global
Securities and 144A Global Securities.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agree-
13
ment, direct or indirect, contingent or otherwise, the practical effect of which
is to assure in any way the payment or performance (or payment of damages in the
event of nonperformance) of all or any part of such obligation, including,
without limiting the foregoing, the payment of amounts available to be drawn
down under letters of credit of another Person.
"Holder" means a Person in whose name a Securi-
ty is registered in the Security Register.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities and liabilities for sports or
entertainment programming incurred in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit, banker's acceptance or other
similar credit transaction, (b) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (c) all indebtedness
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all Indebtedness referred to in the
preceding clauses of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (f) all guarantees of Indebtedness referred to in
this definition by such Person, (g) all Redeemable Capital Stock of such Person
(other than, with respect to the Company, Common Stock of the Company held by
employees of the Company or its Subsidiaries which is Redeemable Capital stock
solely because it may be repurchased, or may be required to be repurchased, by
the Company upon the cessation of such employees' employment) valued at
14
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued dividends, (h) all obligations under or in respect of Interest Rate
Protection Obligations of such Person, and (i) any amendment, supplement,
modification, deferral, renewal, extension, refinancing or refunding of any
liability of the types referred to in clauses (a) through (h) above. For
purposes hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock, such fair
market value shall be approved in good faith by the Board of Directors of the
issuer of such Redeemable Capital Stock. In the case of Indebtedness of other
Persons, the payment of which is secured by a Lien on property owned by a Person
as referred to in clause (e) above, the amount of the Indebtedness of such
Person attributable to such Lien at any date shall be the lesser of the Fair
Market Value at such date of any asset subject to such Lien and the amount of
the Indebtedness secured.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Independent Financial Advisor" means a nationally recognized
accounting, appraisal or investment banking firm (i) which does not, and whose
directors, officers and employees or Affiliates do not have, a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchasers" means Xxxxxxx Xxxxx and
Bear Xxxxxxx & Co. Inc.
15
"Initial Securities" means the 8-7/8% Senior Notes due 2007,
Series A, of the Company and Xxxxx.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to any
Person, any arrangement with any other Person whereby, directly or indirectly,
such Person is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Protection Obligations" means
the obligations of any Person pursuant to any Interest
Rate Protection Agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person.
"Issue Date" means the original date of issu-
ance of the Securities.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any property
of any kind. A Person shall be deemed to own subject to a Lien any property
which such Person has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
16
"Marketable Securities" means Government Securities maturing no
later than 30 days after the date of acquisition.
"Xxxxxxx Xxxxx" means Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
"Moody's" means Xxxxx'x Investors Service, Inc.
and its successors.
"Net Cash Proceeds" with respect to an Asset Sale means the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary of the Company)
net of (i) brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary of the Company) owning a beneficial
interest in the assets subject to the Asset Sale, (iv) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
property the subject of such Asset Sale, and (v) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary of the Company, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an officers' certificate delivered to the Trustee.
"Non-U.S. Person" has the meaning assigned to
such term in Regulation S.
"Notice of Default" means a written notice of
the kind specified in Section 5.2.
17
"Offer" means a Change of Control Offer, an
Asset Sale Offer or a Deposit Offer.
"Offer to Purchase" means an Offer sent by or on behalf of the
Company by first-class mail, postage prepaid, to each Holder of Securities at
his address appearing in the register for the Securities on the date of the
Offer offering to purchase up to the principal amount of Securities specified in
such Offer at the purchase price specified in such Offer (as determined pursuant
to this Indenture). Unless otherwise provided in Section 10.13, 10.14 or 10.21
or otherwise required by applicable law, the Offer shall specify an expiration
date (the "Expiration Date") of the Offer to Purchase, which shall be not less
---------------
than 20 Business Days nor more than 60 days after the date of such Offer (or
such later date as may be necessary for the Company to comply with the Exchange
Act), and a settlement date (the "Purchase Date") for purchase of Securities to
-------------
occur no later than five Business Days after the Expiration Date. The Company
shall notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company; provided, however, that the Company may notify the
-------- -------
Trustee on the same Business Day as the mailing of the Offer of the Company's
obligation to make an Offer to Purchase pursuant to Section 10.21. The Offer
shall contain all the information required by applicable law to be included
therein. The Offer shall also contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the document
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate
18
pro forma financial information concerning the Offer to Purchase and the events
requiring the Company to make the Offer to Purchase and (iv) any other
information required by applicable law to be included therein). The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made:
(2) the Expiration Date and the Purchase Date:
(3) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for
payment (as specified pursuant to this Indenture) (the "Purchase
--------
Price"); and the amount of accrued and unpaid interest to be
-----
paid;
(4) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any
portion of a Security tendered must be tendered in an integral
multiple of $1,000 principal amount;
(5) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(6) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Offer to
Purchase will continue to accrue;
(7) that on the Purchase Date the Purchase Price will
become due and payable upon each Security being accepted for
payment pursuant to the Offer to Purchase and that interest
thereon shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to tender all or any portion
of a Security pursuant to the Offer to Purchase will be required
to sur-
19
render such Security at the place or places specified in the
Offer prior to the close of business on the Expiration Date (such
Security being, if the Company or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in
writing);
(9) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying
Agent) receives, not later than the close of business on the
fifth Business Day next preceding the Expiration Date, a
facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered,
the certificate number of the Security the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
(10) that (a) if Securities and Senior Discount Notes
purchasable at a Purchase Price less than or equal to the
Purchase Amount are duly tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase all such
Securities and Senior Discount Notes and (b) if Securities and
Senior Discount Notes purchasable at a Purchase Price in excess
of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities and
Senior Discount Notes on a pro rata basis based on the Purchase
Price therefor (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000
principal face amount or integral multiples thereof shall be
purchased);
(11) that in the case of a Holder whose Security is
purchased only in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any
authorized denomination as re-
20
quested by such Holder, in an aggregate principal amount equal to
and in exchange for the unpurchased portion of the Security so
tendered.
An Offer to Purchase shall be governed by and effected in accordance with the
provisions pertaining to the type of Offer to which it relates.
"Offering Memorandum" means the Offering Memorandum dated August
15, 1997 pursuant to which the Securities were offered, and any supplement
thereto.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 10.20 shall
be the principal executive, financial or accounting officer of the Company.
"144A Global Security" means a permanent global security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or Xxxxx) in trust or set aside and
segregated in trust by the Company or Xxxxx (if the Company or
21
Xxxxx shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice
--------
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company and Xxxxx; and
(iv) Securities as to which Defeasance has been effected pursuant
to Section 12.2;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company, Xxxxx or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company or
Xxxxx to pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company and Xxxxx.
22
"Permitted Holder" means The News Corporation Limited, Liberty
Media Corporation and their respective Affiliates.
"Permitted Indebtedness" means, without duplication:
(a) Indebtedness of the Company evidenced by
the Securities;
(b) Indebtedness of the Company and its Restricted Subsidiaries
under the Bank Credit Agreement in an aggregate principal amount at any
one time outstanding not to exceed $900 million, less any amounts
permanently repaid in accordance with Section 10.14;
(c) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issue Date and listed on Schedule A hereto;
(d) Indebtedness to third parties for the production of
television programming by one or more special-purpose partnerships,
corporations, joint ventures or similar structures (in which any
interest of the Company is held through a Special Purpose Vehicle), the
production decisions in respect of which are controlled by the Company
to the same extent as would be customary in the case of the production
of such programming by the Company;
(e) Indebtedness consisting of the liabilities and obligations,
contingent or otherwise, incurred by the Company or its Restricted
Subsidiaries in the ordinary course of business (other than for borrowed
money) to acquire, produce, license or distribute television
programming;
(f) Indebtedness of the Company or any Restricted Subsidiary of
the Company incurred in respect of performance bonds, bankers'
acceptances and letters of credit in the ordinary course of business,
including Indebtedness evidenced by letters of credit issued in the
ordinary course of business to support the insurance or self-insurance
obligations of the Company or any of its Restricted Subsidiaries
(including to secure workers' compensation and other
23
similar insurance coverages), in the aggregate amount not to exceed $15
million under this clause (f) at any time; but excluding letters of
credit issued in respect of or to secure money borrowed;
(g) (i) Interest Rate Protection Obligations of the Company
covering Indebtedness of the Company and (ii) Interest Rate Protection
Obligations of any Restricted Subsidiary of the Company covering
Indebtedness of such Restricted Subsidiary; provided that in the case of
--------
either clause (i) or (ii) (x) any Indebtedness to which any such
Interest Rate Protection Obligations correspond bears interest at
fluctuating interest rates and is otherwise permitted to be incurred
under this covenant and (y) the notional principal amount of any such
Interest Rate Protection Obligations that exceeds the principal amount
of the Indebtedness to which such Interest Rate Protection Obligations
relate does not constitute Permitted Indebtedness and may not be
incurred;
(h) Indebtedness of a Restricted Subsidiary owed to and held by
the Company or another Restricted Subsidiary, except that (i) any
transfer of such Indebtedness by the Company or a Restricted Subsidiary
(other than to the Company or another Restricted Subsidiary) and (ii)
the sale, transfer or other disposition by the Company or any Restricted
Subsidiary of the Company of Capital Stock of a Restricted Subsidiary
(other than to the Company or a Restricted Subsidiary) which is owed
Indebtedness of another Restricted Subsidiary shall, in each case, be an
incurrence of Indebtedness by such Restricted Subsidiary subject to the
other provisions of this Indenture;
(i) Indebtedness of the Company owed to and held by a Restricted
Subsidiary which is unsecured and subordinated in right of payment to
the payment and performance of the obligations of the Company under this
Indenture and the Notes, except that (i) any transfer of such
Indebtedness by the Company or a Restricted Subsidiary (other than to
another Restricted Subsidiary) and (ii) the sale, transfer or other
disposition by the Company or any Restricted Subsidiary of the Company
of Capital Stock of a Restricted Subsidiary (other than to the Company
or
24
a Restricted Subsidiary) which is owed Indebtedness of the Company
shall, in each case, be an incurrence of Indebtedness by the Company,
subject to the other provisions of this Indenture;
(j) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within three Business
Days of incurrence;
(k) Indebtedness of the Company, in addition to that described in
clauses (a) through (j) of this definition, in an aggregate principal
amount outstanding at any time not to exceed $150,000,000; and
(l) (i) Indebtedness of the Company the proceeds of which are
used solely to refinance (whether by amendment, renewal, extension or
refunding) Indebtedness of the Company or any of its Restricted
Subsidiaries and (ii) Indebtedness of any Restricted Subsidiary of the
Company the proceeds of which are used solely to refinance (whether by
amendment, renewal, extension or refunding) Indebtedness of any
Restricted Subsidiary (in each case other than the Indebtedness to be
refinanced, redeemed or retired as described under "Use of Proceeds" in
the Offering Memorandum); provided, however, that (x) the principal
-------- -------
amount of Indebtedness incurred pursuant to this clause (l) (or, if such
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof, the original issue price of such Indebtedness) shall
not exceed the sum of the principal amount of Indebtedness so refinanced
plus the amount of any premium required to be paid in connection with
such refinancing pursuant to the terms of such Indebtedness or the
amount of any premium reasonably determined by the Company as necessary
to accomplish such refinancing by means of a tender offer or privately
negotiated purchase, plus the amount of expenses in connection
therewith, and (y) in the case of Indebtedness incurred pursuant to this
clause (l) to refinance Subordinated
25
Indebtedness, such Indebtedness (A) has no scheduled principal payment
prior to the 121st day after the Maturity Date (B) has an Average Life
to Stated Maturity greater than the remaining Average Life to Stated
Maturity of the Securities and (C) is subordinated to the Securities in
the same manner and to the same extent that the Subordinated
Indebtedness being refinanced is subordinated to the Securities.
"Permitted Investments" means any of the following: (i)
Investments in the Company or in a Restricted Subsidiary; (ii) Investments in
another Person, if as a result of such Investment (A) such other Person becomes
a Restricted Subsidiary or (B) such other Person is merged or consolidated with
or into, or transfers or conveys all or substantially all of its assets to the
Company or a Restricted Subsidiary; (iii) Investments representing Capital Stock
or obligations issued to the Company or any of its Restricted Subsidiaries in
settlement of claims against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Company or such
Restricted Subsidiary; (iv) Investments in Interest Rate Protection Agreements
on commercially reasonable terms entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business in connection with
the operations of the business of the Company or its Restricted Subsidiaries to
hedge against fluctuations in interest rates on its outstanding Indebtedness;
(v) Investments in the Securities; (vi) Investments in Cash Equivalents; (vii)
Investments made in connection with the consummation of the Rainbow Transaction
(as defined in the Offering Memorandum); (viii) Investments acquired by the
Company or any Restricted Subsidiary in connection with an Asset Sale permitted
under Section 10.14 to the extent such Investments are non-cash proceeds as
permitted under such covenant; (ix) advances to employees or officers of the
Company in the ordinary course of business; (x) any Investment to the extent
that the consideration therefor is Capital Stock (other than Redeemable Capital
Stock) of the Company; and (xi) Investments in any Person (including
Unrestricted Subsidiaries) engaged in the Entertainment/Programming Business.
"Permitted Liens" means the following types of Liens:
26
(a) any Lien existing as of the date of this
Indenture;
(b) Liens on Capital Stock of Subsidiaries
securing Indebtedness under the Bank Credit Agree-
ment;
(c) any Lien securing Acquired Indebtedness created prior to (and
not created in connection with, or in contemplation of) the incurrence
of such Indebtedness by the Company or any Restricted Subsidiary, if
such Lien does not attach to any property or assets of the Company or
any Restricted Subsidiary other than the property or assets subject to
the Lien prior to such incurrence;
(d) Liens in favor of the Company or a Restricted Subsidiary;
(e) Liens on and pledges of the Capital Stock of any Unrestricted
Subsidiary securing any Indebtedness of such Unrestricted Subsidiary;
(f) Liens for taxes, assessments or governmental charges or
claims either (i) not delinquent or (ii) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(g) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(h) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and
27
other similar obligations (exclusive of obligations for the payment of
borrowed money);
(i) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(j) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(k) any interest or title of a lessor under any Capitalized Lease
Obligation;
(l) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the
ordinary course of business; provided, however, that (i) the related
purchase money Indebtedness shall not be secured by any property or
assets of the Company or any Restricted Subsidiary of the Company other
than the property and assets so acquired and (ii) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(m) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(n) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(o) Liens securing Interest Rate Protection
Obligations which Interest Rate Protection Obliga-
28
tions relate to Indebtedness that is secured by Liens otherwise
permitted under this Indenture;
(p) Liens on assets of Unrestricted Subsidiaries;
(q) Lines created in the ordinary course of business in favor of
a sports team over rights payments which are allocable to such team
under related rights agreements, or a producer or supplier of television
programming over distribution revenues and/or distribution rights which
are allocable to such producer or supplier under related distribution
agreements; and
(r) Liens securing other Indebtedness in an aggregate amount not
to exceed 10% of the Company's Consolidated Net Tangible Assets as of
the last day of the Company's most recently completed fiscal quarter for
which financial information is available.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock," as applied to any Person, means Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over
shares of Capital Stock of any other class of such Person.
"Private Exchange Securities" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" shall mean the legend initially set
forth on the Securities in the form set forth on Exhibit B-1.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Redeemable Capital Stock) for the Company pursuant to
a registration statement filed with the Commission in accordance with
29
the Securities Act, which public equity offering results in net cash proceeds to
the Company of not less than $100 million.
"Purchase Date" shall have the meaning set forth in the
definition of "Offer to Purchase."
"Qualified Equity Interest" in a Person means any interest in
Capital Stock of such Person, other than Redeemable Capital Stock.
"Qualified Institutional Buyer" or "QIB" has the meaning
specified in Rule 144A under the Securities Act.
"Rainbow Consummation" means the closing of the Rainbow
Transaction (as defined in the Offering Memorandum).
"Record Expiration Date" has the meaning specified in Section
1.4.
"Redeemable Capital Stock" means any class or series of Capital
Stock that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the Maturity Date or is redeemable at the option of the Holder thereof at any
time prior to the Maturity Date, or is convertible into or exchangeable for debt
securities at any time prior to the Maturity Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" has the meaning set
forth in the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of August 25, 1997 by and among the Company, Xxxxx and the
Initial Purchas-
30
ers, as the same may be amended,supplemented or otherwise modified from time to
time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the February 1 or August 1 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the
Securities Act.
"Regulation S Global Security" means a permanent global Security
in registered form representing the aggregate principal amount of Securities
sold in reliance on Regulation S under the Securities Act.
"Replacement Assets" has the meaning specified in Section 10.14.
"Required Filing Dates" has the meaning specified in Section
10.19.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Office, including, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
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 Payments" has the meaning specified
in Section 10.9.
"Restricted Period" has the meaning set forth
in Section 3.14.
"Restricted Security" means a Security that constitutes a
"restricted security" within the meaning of Rule 144(a)(3) under the Securities
Act; provided, however, that the Trustee shall be entitled to request and
-------- -------
conclusively rely on an Opinion of Counsel with respect
31
to whether any Security constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that
is not an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Sec-tion 10.18.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale-Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"S&P" means Standard & Poor's Ratings Group, and its successors.
"Securities" means securities designated in the first paragraph
of the RECITALS OF THE COMPANY.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Discount Notes" means the 9-3/4% Senior Discount Notes
due 2007 issued by the Company and Xxxxx pursuant to an indenture, dated as of
August 25, 1997.
"Significant Subsidiary" of any Person means a Restricted
Subsidiary of such Person which would be a significant subsidiary of such Person
as determined in
32
accordance with the definition in Section 210.1-02(w) of Regulation S-X
promulgated by the Commission and as in effect on the date of this Indenture.
"Special Purpose Vehicle" means a Person which is, or was,
established: (i) with separate legal identity and limited liability; (ii) as an
Affiliate of the Company; and (iii) for the sole purpose of a single
transaction, or series of related transactions, and which has no assets and
liabilities other than those directly acquired or incurred in connection with
such transaction(s).
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" means, when used with respect to any Security
or any installment of interest thereon, the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Strategic Equity Investor" means a corporation or entity with an
equity market capitalization, a net asset value or annual revenues of at least
$1.0 billion that primarily owns and operates businesses in the sports or
entertainment, cable television, programming or similar or related industries.
"Subordinated Indebtedness" means, with respect to the Company,
Indebtedness of the Company which is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means, with respect to any Person, (i) a corporation
at least 50% of whose Voting Stock is at the time, directly or indirectly, owned
by such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a partnership, limited liability
company, business trust or a joint venture, in which such
33
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least a 50% ownership interest entitled to vote in the election
of directors, managers or trustees thereof (or other Person performing similar
functions). For purposes of this definition, any directors' qualifying shares or
investments by foreign nationals mandated by applicable law shall be disregarded
in determining the ownership of a Subsidiary and LMC Southeast Sports, Inc. and
LMC Sunshine, Inc. shall be deemed to be Subsidiaries of Liberty/Fox Southeast
LLC and Liberty/Fox Sunshine LLC, respectively, as of the date of the Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-----------------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Securities" means one or more Securities that do
not and are not required to bear the Private Placement Legend in the form set
forth in Exhibit B-2, including, without limitation, the Exchange Securities.
-----------
"Unrestricted Subsidiary" means, as of the date of the Indenture,
Liberty/Fox Arizona LLC, Prime Ticket Networks, L.P., Liberty/Fox Distribution
L.P., Liberty/Fox Network Programming, LLC, Rocky Mountain Prime Sports Network,
SportsChannel Chicago Associates, SportsChannel Pacific Associates, Fox Sports
Detroit, LLC, Sunshine Network and each other Subsidiary of the Company
designated as such pursuant to and in compliance with Section 10.18. Any such
Designation may be revoked by Board Resolution of the Company delivered to the
Trustee, subject to the provisions of Section 10.18.
34
"U.S. Government Obligation" has the meaning specified in Section
12.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least 50% of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 1.2 Compliance Certificates and Opinions.
------------------------------------
Any action to be taken on behalf of Xxxxx under this Indenture
shall be taken on its behalf by the Company and any notice, request or other
information to be provided to Xxxxx shall be delivered to the Company on its
behalf. Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which
35
the statements or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or Xxxxx
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or
Xxxxx stating that the information with respect to such factual matters is in
the possession of the Company or Xxxxx, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents,
36
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
Xxxxx. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same
37
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company or
Xxxxx in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, provided that the Company may not set a record date for, and the
--------
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
--------
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on such
record date; and provided, further, that for the purpose of determining whether
-----------------
Holders of the requisite principal amount of such Securities have taken such
action, no Security shall be deemed to have been Outstanding on such record date
unless it is also Outstanding on the date such action is to become effective.
Nothing in this paragraph shall prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), nor shall anything
in this paragraph be construed to render ineffective any action taken pursuant
to or in accordance with any other provision of this Indenture by Holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Record Expiration Date to be given
to the Trustee in writing and to each Holder of Securities in the manner set
forth in Section 1.6.
38
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
--------
effective hereunder unless taken on or prior to the applicable Record Expiration
Date by Holders of the requisite principal amount of Outstanding Securities on
such record date; and provided, further, that for the purpose of determining
-------- -------
whether Holders of the requisite principal amount of such Securities have taken
such action, no Security shall be deemed to have been Outstanding on such record
date unless it is also Outstanding on the date such action is to become
effective. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action (whereupon the record date
previously set shall automatically and without any action by any Person be
cancelled and of no effect), nor shall anything in this paragraph be construed
to render ineffective any action taken pursuant to or in accordance with any
other provision of this Indenture by Holders of the requisite principal amount
of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to be submitted
for potential action by Holders and the applicable Record Expiration Date to be
given to the Company and Xxxxx in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Record
Expiration Date" and from time to time may change the Record Expiration Date to
any earlier or later day, provided that no such change shall be effective unless
--------
notice of the proposed new Record Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities in the
39
manner set forth in Section 1.6, on or before the existing Record Expiration
Date. If a Record Expiration Date is not designated with respect to any record
date set pursuant to this Section, the party hereto that set such record date
shall be deemed to have initially designated the 180th day after such record
date as the Record Expiration Date with respect thereto, subject to its right to
change the Record Expiration Date as provided in this paragraph. Notwithstanding
the foregoing, no Record Expiration Date shall be later than the 180th day after
the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5 Notices to Trustee and Company and Xxxxx.
----------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing and mailed, first-class postage pre-paid, to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration,
(2) the Company or Xxxxx by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, with a copy
to The News Corporation Limited at 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Esq., or at any
other address previ-
40
ously furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
41
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by each of the
Company and Xxxxx shall bind its successors and assigns, whether so expressed or
not.
SECTION 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
-------------
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
SECTION 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect (including with respect to the accrual of interest) as if
made on the Interest Payment Date,
42
Redemption Date or Purchase Date, or at the Stated Maturity.
ARTICLE II
Security Forms
SECTION 2.1 Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth or referenced in Exhibit B-1 and
Exhibit B-2 annexed hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
ARTICLE III
The Securities
SECTION 3.1 Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $500,000,000
principal amount of Initial Securities and up to $500,000,000 principal amount
of Securities exchanged therefor in accordance with the Registration Rights
Agreement, except for Securities authenticated and delivered upon registration
or transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.8
43
or in connection with an Offer pursuant to Sections 10.13, 10.14 or 10.21.
The Securities shall be known and designated as the "8-7/8%
Senior Notes due 2007" of the Company and Xxxxx. Their Stated Maturity shall be
August 15, 2007. Interest on the Securities shall accrue at the rate of 8-7/8%
per annum and shall be payable semi-annually on each February 15 and August 15,
commencing February 15, 1998, to the Holders of record of Securities at the
close of business on the February 1 and August 1 immediately preceding such
Interest Payment Date. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date of such Securities. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York maintained for such purpose and at
any other office or agency maintained by the Company for such purpose; provided,
--------
however, that, at the option of the Company, payment of interest may be made by
-------
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Company may be required to make a Change of Control Offer as
provided in Section 10.13, or an Asset Sale Offer as provided in Section 10.14
or a Deposit Offer as provided in Section 10.21.
The Securities shall be redeemable as provided in Article II and
Article XI.
The Securities shall be subject to Defeasance and/or Covenant
Defeasance as provided in Article XII.
SECTION 3.2 Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
44
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B-1 hereto. The
-----------
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B-2 hereto.
-----------
The terms and provisions contained in the Securities annexed
hereto as Exhibits B-1 and B-2 shall constitute, and are hereby expressly made,
------------ ---
a part of this Indenture and, to the extent applicable, the Company, Xxxxx and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A and
Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in Exhibit B-1, deposited with the Trustee, as custodian for the
-----------
Depository, duly executed by the Company and Xxxxx and authenticated by the
Trustee as hereinafter provided and shall bear the legend set forth in Exhibit
-------
C. The aggregate principal amount of the Global Securities may from time to time
-
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.
All Securities shall remain in the form of a Global Security,
except as provided herein.
The Securities shall be executed on behalf of each of the Company
and Xxxxx by its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or Xxxxx
shall bind the Company or Xxxxx, as the case may be, notwithstanding that such
individuals or any of them have ceased to hold such
45
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company and Xxxxx to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities as in this Indenture provided and not otherwise.
The Trustee shall have the right to decline to authenticate and
make available for delivery any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and made available for delivery hereunder.
SECTION 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company and
Xxxxx may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate inser-
46
tions, omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company and Xxxxx will
cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
10.2, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company and Xxxxx shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations and of a
like tenor. Until so exchanged the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 10.2 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as the Company may prescribe, the Company and
Xxxxx shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
Subject to Sections 3.13 and 3.14 of this Indenture, upon
surrender for registration of transfer of any Security at an office or agency of
the Company designated pursuant to Section 10.2 for such purpose, the Company
and Xxxxx shall execute, and the Trustee shall authenticate and make available
for delivery, in the name of the designated transferee or transferees, one more
or more new Securities of any authorized denominations and of a like aggregate
principal amount and tenor.
47
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company and Xxxxx shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company and Xxxxx,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6 or 11.8 or in accordance with any
Change of Control Offer pursuant to Section 10.13 or any Asset Sale Offer
pursuant to Section 10.14 or any Deposit Offer pursuant to Section 10.21, and in
any such case not involving any transfer.
The Company and Xxxxx shall not be required (i) to issue,
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 11.4 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
48
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company and Xxxxx shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, Xxxxx and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of each of them harmless, then, in the absence of
actual notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company and Xxxxx shall execute, and upon their
request the Trustee shall authenticate and make available for delivery, in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company and Xxxxx in its
discretion may, instead of, issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company and Xxxxx may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and Xxxxx, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other
49
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Rights Preserved.
-------------------------------------
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more predecessor securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company and Xxxxx, at their election
in each case, as provided in Clause (1) or (2) below:
(1) The Company and Xxxxx may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company and Xxxxx shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the
50
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to
each Holder in the manner specified in Section 1.6, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company and Xxxxx may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of
transfer, the Company, Xxxxx, the Trustee and any agent of the Company, Xxxxx or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 3.7) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, Xxxxx, the Trustee nor any agent of the Company, Xxxxx, or
the Trustee shall be affected by notice to the contrary.
51
SECTION 3.9 Cancellation.
------------
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any Change of Control Offer
pursuant to Section 10.13 or any Asset Sale Offer pursuant to Section 10.14
shall, if surrendered to any Person other than the Trustee, be made available
for delivery to the Trustee and shall be promptly cancelled by it. The Company
or Xxxxx may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and made available for delivery hereunder which the
Company or Xxxxx may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required to destroy
-----------------
cancelled Securities.
SECTION 3.10 Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.11 CUSIP and CINS Numbers.
----------------------
The Company in issuing the Securities may use "CUSIP" and "CINS"
numbers (if then generally in use), and, if so, the Trustee shall use the CUSIP
or CINS numbers in notices of redemption or repurchase as a convenience to
Holders; provided that any such notice may state that no representation is made
--------
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption or repurchase shall not be affected by any defect in or
omission of such numbers.
SECTION 3.12 Deposits of Monies.
------------------
(a) The Company may from time to time appoint one or more Paying
Agents under this Indenture and the Securities.
52
(b) Unless the Company or Xxxxx shall be acting as Paying Agent
as provided in Section 10.3 hereof, prior to 1:00 p.m. New York City
time on each Interest Payment Date, Redemption Date, Stated Maturity,
and Purchase Date, the Company or Xxxxx shall deposit with the Paying
Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Redemption Date,
Stated Maturity and Purchase Date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date, Redemption Date, Stated Maturity, and
Purchase Date, as the case may be.
SECTION 3.13 Book-Entry Provisions
for Global Securities.
---------------------
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Exhibit C hereto.
---------
Members of, or participants in, the Depository ("Agent Members")
-------------
shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under any Global Security, and the Depository may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Securities for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, Xxxxx, the Trustee or any agent of the Company, Xxxxx or
the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfer of Global Securities shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global
Securities may not be transferred or exchanged for physical securities,
except that physi-
53
cal securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Security, or that it will cease to
be a "Clearing Agency" under the Exchange Act, and in either case a
successor Depository is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a written request from the Depository to
issue physical securities.
(c) the Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
SECTION 3.14 Special Transfer Provisions.
---------------------------
(a) Transfers to Non-U.S. Persons. The following additional
-----------------------------
provisions shall apply with respect to the registration of any proposed
transfer of an Initial Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that
neither the Company, Xxxxx nor any Affiliate of the Company or
Xxxxx has held any beneficial interest in such Security, or
portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such
Initial Security thereunder or (y) the proposed transferor has
delivered to the Registrar a certificate substantially in the
form of Exhibit D hereto;
---------
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a 144A Global Security, upon receipt by
the Reg-
54
istrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of
paragraph (i) above, together with any required legal opinions
and certifications, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in
the principal amount of the 144A Global Security from which such
interests are to be transferred in an amount equal to the
principal amount of the Securities to be transferred and (B) an
increase in the principal amount of the Regulation S Global
Security in an amount equal to the principal amount of the Global
Security to be transferred; and
(iii) subject to Section 3.14(b), until the 41st day after the
Issue Date (the "Restricted Period"), an owner of a beneficial
---------- ------
interest in the Regulation S Global Security may not transfer
such interest to a transferee that is a U.S. Person or for the
account or benefit of a U.S. Person within the meaning of Rule
902(o) of the Securities Act. Subject to Section 3.14(b), during
the Restricted Period, all beneficial interests in the Regulation
S Global Security shall be transferred only through Cedel or
Euroclear, either directly if the transferor and transferee are
participants in such systems, or indirectly through organizations
that are participants therein.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of an Initial
Security to a QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that
neither the Company, Xxxxx nor any Affiliate of the Company or
Xxxxx has held any beneficial interest in such Security, or
portion thereof, at any time on or prior to the
55
second anniversary of the Issue Date and such transfer can
otherwise be lawfully made under the Securities Act without
registering such Initial Security thereunder or (y) such transfer
is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the
form of Security stating, or has otherwise advised the Company
and the Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by
Rule 144A; and
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Regulation S Global Security, upon
receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures,
the Registrar shall register the transfer and reflect on its
books and records the date and (A) a decrease in the principal
amount of the Regulation S Global Security from which interests
are to be transferred in an amount equal to the principal amount
of the Securities to be transferred and (B) an increase in the
principal amount of the 144A Global Security in an amount equal
to the principal amount of the Global Security to be transferred.
(c) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of
56
Securities not bearing the Private Placement Legend, the Registrar shall
deliver Securities that do not bear the Private Placement Legend. Upon
the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the
circumstances contemplated by paragraph (a)(i)(x) of this Section 3.14
exists, (ii) there is delivered to the Registrar an Opinion of counsel
reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Security has been sold pursuant to an
effective registration statement under the Securities Act.
(d) Other Transfers. If a Holder proposes to transfer a Security
---------------
constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided
for by Section 3.14(a), (b) and (c), the Registrar shall only register
such transfer or exchange if such transferor delivers an Opinion of
Counsel satisfactory to the Company and the Registrar that such transfer
is in compliance with the Securities Act and the terms of this
Indenture.
(e) General. By its acceptance of any Security bearing the
-------
Private Placement Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this
Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.13 or this Section
3.14. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Registrar.
57
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(l) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or repaid as provided in
Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company or Xxxxx and thereafter repaid to the
Company or Xxxxx or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation (other than Securities which have been
destroyed, lost or stolen and which have been replaced or repaid
as provided in Section 3.6),
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
58
and the Company or Xxxxx, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire Indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest on
the Securities to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be, together with
irrevocable instructions from the Company directing the Trustee
to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(2) the Company or Xxxxx has paid or caused to be paid all other
sums payable hereunder by the Company or Xxxxx; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article IV, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Company to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the
59
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE V
Remedies
SECTION 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of or premium, if
any, when due and payable, on any of the Securities (at Stated Maturity,
upon optional redemption, required purchase or otherwise); or
(2) default in the payment of an installment of interest on any
of the Securities, when due and payable, for 30 days; or
(3) (a) default in the performance, or breach, of any covenant or
agreement of the Company under the Indenture (other than a default in
the performance or breach of a covenant or agreement which is
specifically dealt with in clauses (1) or (2) or subclauses (b), (c) or
(d) of this clause (3)) and such default or breach shall continue for a
period of 30 days after written notice has been given, by certified
mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities; (b) there shall be a default in the
performance or breach of the provisions of Article VIII; (c) the Company
shall have failed to make or consummate a Change of Control Offer in
accordance with the provisions of the Indenture described under Section
10.13; (d) the Company shall have failed to make or consummate an Asset
Sale Offer in accordance with the provisions of the Indenture described
under Section 10.14; or (e) the
60
Company shall have failed to make or consummate a Deposit Offer in
accordance with the provisions of the Indenture described under Section
10.21; or
(4) default or defaults under one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Company or any Restricted Subsidiary of the
Company then has outstanding Indebtedness in excess of $15,000,000,
individually or in the aggregate, and either (a) such Indebtedness is
already due and payable in full or (b) such default or defaults have
resulted in the acceleration of the maturity of such Indebtedness; or
(5) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $15,000,000 either individually or in the
aggregate, shall be entered against the Company or any Restricted
Subsidiary of the Company or any of their respective properties and
shall not be discharged and there shall have been a period of 60 days
after the date on which any period for appeal has expired and during
which a stay of enforcement of such judgment, order or decree, shall not
be in effect; or
(6) either (i) the agent or lenders under the Bank Credit
Agreement or (ii) any holder of at least $15,000,000, in aggregate
principal amount of Indebtedness of the Company or any of its Restricted
Subsidiaries shall commence judicial proceedings, or take any action, to
foreclose upon assets of the Company or any of its Restricted
Subsidiaries having an aggregate Fair Market Value, individually or in
the aggregate, in excess of $15,000,000 or shall have exercised any
right under applicable law or applicable security documents to take
ownership of any such assets in lieu of foreclosure and there shall have
been a period of five Business Days, in the case of a current asset, or
30 days, in the case of any other asset, during which such proceedings
or other actions have not been stayed; or
(7) the entry of a decree or order by a court having jurisdiction
in the premises (A) for relief
61
in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under the Federal Bankruptcy Code or any
other federal, state or foreign bankruptcy, insolvency, reorganization
or similar law or (B) adjudging the Company or any Significant
Subsidiary bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any Significant Subsidiary under the Federal Bankruptcy Code or any
other similar federal, state or foreign law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of any of their properties, or ordering the winding up
or liquidation of any of their affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(8) the institution by the Company or any Significant Subsidiary
of a voluntary case or proceeding under the Federal Bankruptcy Code or
any other similar federal, state or foreign law or any other case or
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
the Company or any Significant Subsidiary to the entry of a decree or
order for relief in respect of the Company or any Significant Subsidiary
in any involuntary case or proceeding under the Federal Bankruptcy Code
or any other similar federal, state or foreign law or to the institution
of bankruptcy or insolvency proceedings against the Company or any
Significant Subsidiary, or the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other similar federal,
state or foreign law, or the consent by it to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of any of the Company or any Significant Subsidiary or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
or the taking of corporate
62
action by the Company or any Significant Subsidiary in furtherance of
any such action; or
(9) failure to perform or comply with any of the provisions of
Section 10.21 hereof or of the Deposit Agreement; or
(10) the Deposit Funds become subject to any Lien (other than the
Lien under the Deposit Agreement securing the Securities) of any
creditor of the Company or Xxxxx as a result of any act or failure to
act on the part of the Company or Xxxxx; or
(11) the Company challenges the Lien on the Deposit Funds in
favor of the Holders prior to such time as the Deposit Funds are to be
released to the Company.
SECTION 5.2 Acceleration of Maturity;
Rescission and Annulment.
------------------------
If an Event of Default (other than those covered by clause (7) or
(8) of Section 5.1 with respect to the Company) shall occur and be continuing,
the Trustee, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding, by notice to the
Trustee and the Company, may declare the principal of, premium, if any, and
accrued and unpaid interest, if any, on all of the outstanding Securities due
and payable immediately, upon which declaration, all amounts payable in respect
of the Securities shall be immediately due and payable. If an Event of Default
specified in clause (7) or (8) of Section 5.1 with respect to the Company occurs
and is continuing, then the principal of, premium, if any, and accrued and
unpaid interest, if any, on all the Outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of Securities.
After a declaration of acceleration under the Indenture, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration if
63
(1) the Company or Xxxxx has paid or deposited
with the Trustee a sum sufficient to pay
(A) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel,
(B) all overdue interest on all Securities,
(C) the principal of and premium, if any, on any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities, and
(D) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate
borne by the Securities which has become due otherwise than by
such declaration of acceleration;
(2) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and
(3) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Securities that has
become due solely by such declaration of acceleration, have been cured
or waived.
No such rescission shall affect any subsequent default or impair
any right consequent thereto.
SECTION 5.3 Collection of Indebtedness
and Suits for Enforcement by Trustee.
------------------------------------
Each of the Company and Xxxxx covenants that if
(l) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
64
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to
a Change of Control Offer or an Asset Sale Offer made by the Company, at
the purchase date thereof,
the Company or Xxxxx will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate provided by the Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
In addition to the rights and powers set forth in Section 317(a)
of the Trust Indenture Act, the Trustee shall be entitled to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and of the Holders of the Securities allowed in any judicial
proceeding relative to the Company or other obligor upon the Securities, its
creditors, or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
Holders to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for compensation and expenses, including counsel
fees incurred by it up to the date of such distribution.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such
65
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company or
Xxxxx (or any other obligor upon the Securities), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5 Trustee May Enforce Claims
Without Possession of Securities.
---------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relat-
66
ing thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
distributions and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 5.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(l) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
insti-
67
tute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, ex-
penses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 15 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 15-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of a Change of Control Offer or an Asset Sale Offer made by
the Company and required to be accepted as to such Security, on the relevant
purchase date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
68
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, Xxxxx, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to
69
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to a Change of Control Offer or an Asset
Sale Offer which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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 5.14 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party liti-
70
xxxx, including reasonable attorneys' fees and expenses, in the manner and to
the extent provided in the Trust Indenture Act; provided, that neither this
--------
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or Xxxxx, in any suit instituted by the Trustee, in any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or in any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the Stated Maturity
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date or, in the case of a Change of Control Offer or an Asset Sale
Offer, made by the Company and required to be accepted as to such Security, on
the Change of Control Purchase Date or the Asset Sale Offer date, as the case
may be).
SECTION 5.15 Waiver of Stay or Extension Laws.
--------------------------------
The Company and Xxxxx each covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
Xxxxx each (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VI
The Trustee
SECTION 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event
of Default,
71
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
the provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent misconduct, except that
(1) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(2) this Subsection (c) shall not be construed to limit the
effect of Subsection (a) of this Section 6.1;
(3) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsi-
72
ble Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(4) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount at maturity
of the Outstanding Securities determined as provided in Sections 1.1,
1.4 and 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section 6.1.
SECTION 6.2 Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders and provided, further, that in the case of any Default
-----------------
of the character specified in Section 5.1(4), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
SECTION 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely as to the truth of the
statements and correctness of the
73
opinions expressed therein and shall be fully protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
74
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to reasonable
confidentiality arrangements as may be proposed by the Company) to
examine the books, records and premises of the Company, personally or by
agent or attorney at the sole expense of the Company and, in the absence
of negligence and bad faith, shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys or custodians or nominees and the Trustee shall not be
responsible for the supervision of, or any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(i) In the event that the Trustee is also acting as
Authenticating Agent, Paying Agent or Security Registrar hereunder, the
rights and protections afforded to the Trustee pursuant to this Article
VI shall also be afforded to such Authenticating Agent, Paying Agent and
Security Registrar; and
(j) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is
in fact such a Default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities.
SECTION 6.4 Not Responsible for Recitals
or Issuance of Securities.
-------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company,
75
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or Xxxxx, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
76
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor trustee,
its directors, officers, agents and employees for, and to hold them
harmless against, any and all loss, damage, claim, liability or expense
incurred without negligence or bad faith on its part, including taxes
(other than taxes based upon, measured by or determined by the revenue
or income of the Trustee), arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
Except with respect to the Collateral, the Trustee shall have a
lien prior to the Securities as to all property and funds held by it hereunder
for any amount owing to it or any predecessor trustee pursuant to this Section
6.7, except with respect to funds held in trust for the benefit of the Holders
of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(8) or Section
5.1(9), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive any termination of
this Indenture.
SECTION 6.8 Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $100,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal;
Appointment of Successor.
------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee in accordance with the applicable requirements of Section 6.11
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, at the expense of the Company the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount at Stated Maturity of the Outstanding
Securities, delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee in accordance with the
applicable requirements of
78
Section 6.11 shall not have been delivered to the Trustee within 30 days
after the giving of notice of such removal, at the expense of the
Company, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal
amount at Stated Maturity of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of
79
such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment
in accordance with the applicable requirements of Section 6.11, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
(g) The resignation or removal of the Trustee pursuant to this
Section 6.10 shall not affect the obligation of the Company to indemnify
the Trustee pursuant to Section 6.7(3) in connection with the exercise
or performance by the Trustee prior to its resignation or removal of any
of its powers or duties hereunder.
(h) No Trustee under this Indenture shall be liable for any
action or omission of any successor Trustee.
SECTION 6.11 Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and
80
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 Preferential Collection of
Claims Against Company or Xxxxx.
-------------------------------
If and when the Trustee shall be or become a creditor of the
Company or Xxxxx (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company or Xxxxx (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of
81
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption or partial purchase or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
82
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
As Trustee
By__________________________
As Authenticating Agent
By___________________________
Authorized Signatory
83
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.1 Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each February 15
and August 15, commencing February 15, 1998, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.2 Preservation of Information;
Communications to Holders.
-------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any
84
agent of either of them shall be held accountable by reason of any disclosure of
information as to the names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 7.3 Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing May 15,
1998, the Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture to the extent required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange.
SECTION 7.4 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
85
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1 Company May Consolidate,
Etc. Only on Certain Terms.
--------------------------
The Company (x) shall not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and (y) shall
not permit any of its Restricted Subsidiaries to enter into any such transaction
or series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
the Company or the Company and its Restricted Subsidiaries, taken as a whole, to
any other Person or Persons, unless, in each case (x) or (y), at the time and
after giving effect thereto
(1) either:
(A) if the transaction or transactions is a merger or
consolidation, the Company or such Restricted Subsidiary, as the
case may be, shall be the surviving Person of such merger or
consolidation, or
(B) the Person formed by such consolidation or into which the
Company or such Restricted Subsidiary, as the case may be, is
merged or to which the properties and assets of the Company or
such Restricted Subsidiary, as the case may be, substantially as
an entirety, are transferred (any such surviving Person or
transferee Person being the "Surviving Entity") shall be a
corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia
and shall expressly assume by a supplemental indenture executed
and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company, under the Securities
and this Indenture and the Registration Rights
86
Agreement, and in each case, this Indenture shall remain in full
force and effect;
(2) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including,
---------
without limitation, any Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction or series
of transactions), no Default or Event of Default shall have occurred and
be continuing; and
(3) the Company or the Surviving Entity, as the case may be, after
giving effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 10.8
(assuming a market rate of interest with respect to such additional
Indebtedness).
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions of this Section 8.1, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposition and the indenture supplemental hereto in respect thereof
(required under clause (1)(B) of this Section 8.1) comply with the requirements
of this Indenture. Each such Officers' Certificate shall set forth the manner of
determination of the ability to Incur Debt in accordance with clause (3) of this
Section 8.1.
SECTION 8.2 Successor Substituted.
---------------------
Upon any transaction or series of transactions that are of the
type described in clause (x) or (y) of, and are effected in accordance with,
Section 8.1, the Surviving Entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if
87
such Surviving Entity had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
Amendments; Waivers; Supplemental Indentures
SECTION 9.1 Amendments, Waivers and Supplemental
Indentures Without Consent of Holders.
-------------------------------------
Without the consent of any Holders, each of the Company and
Xxxxx, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may amend, waive or supplement this Indenture, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company or Xxxxx for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or Xxxxx; or
(3) to secure the Securities pursuant to the requirements of
Section 10.12 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture,
88
provided that the Company shall have delivered to the Trustee an Opinion of
--------
Counsel stating that such action pursuant to clauses (1), (2), (3), (4) or (5)
above does not adversely affect the rights of any Holder of Securities.
SECTION 9.2 Modifications, Amendments and Supplemental Indentures with
Consent of Holders.
----------------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company, Xxxxx and the Trustee, each of the Company and Xxxxx, when
authorized by a Board Resolution, and the Trustee may modify, amend or
supplement this Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such modification, amendment or supplemental
-----------------
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) reduce the principal amount of, extend the Stated Maturity of
or alter the Redemption provisions of, the Securities,
(2) change the currency in which any Securities or any premium or
the interest thereon is payable,
(3) reduce the percentage in principal amount of Outstanding
Securities that must consent to an amendment, supplement or waiver or
consent to take any action under the Indenture or the Securities,
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities,
(5) waive a default in payment with respect to the Securities,
(6) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control or make and consummate the offer with respect to any
89
Asset Sale or modify any of the provisions or definitions with respect
thereto,
(7) reduce or change the rate or time for payment of interest on
the Securities,
(8) modify or change any provision of this Indenture affecting
the ranking of the Securities in a manner adverse to the Holders of the
Securities, or
(9) modify the provisions of the Deposit Agreement or Section
10.21 in any manner adverse to the Holders (provided that any Amendment
to the definition of Rainbow Consummation need be approved only by
Holders of not less than a majority in principal amount of the
Outstanding Securities) or release any of the Collateral from the Lien
securing the Securities (unless the Rainbow Consummation shall have
occurred or the Company has purchased at the Purchase Price all
Securities tendered pursuant to a Deposit Offer made pursuant to Section
10.21) or permit any other Indebtedness or other obligation to be
secured by the Deposit Funds.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof. The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto in accordance with Section 1.4 hereof.
SECTION 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's
90
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Securities
to Supplemental Indentures.
--------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X
Covenants
SECTION 10.1 Payment of Principal,
Premium and Interest.
--------------------
The Company or Xxxxx will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
91
SECTION 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. In the event any such notice or
demands are so made or served on the Trustee, the Trustee will promptly forward
copies thereof to the Company.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
--------
however, that no such designation or rescission shall in any manner relieve the
-------
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Security Payments
to be Held in Trust.
-------------------
If the Company or Xxxxx shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of (and premium, if
any) or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
92
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company or Xxxxx shall have one or more Paying
Agents, the Company or Xxxxx will, prior to 1:00 p.m. New York City time on each
due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company and Xxxxx will promptly notify the Trustee of its action or
failure so to act.
The Company or Xxxxx will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will: (i) comply with the provisions of the Trust
Indenture Act applicable to it as Paying Agent and (ii) during the continuance
of any default by the Company and Xxxxx (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.
The Company or Xxxxx may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by such Paying
Agent; and, upon such payment by any Paying Agent (other than the Company or
Xxxxx) to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company or Xxxxx, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company or Xxxxx) shall be discharged from such
93
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company and Xxxxx 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 or Xxxxx as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-----------------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company
or Xxxxx.
SECTION 10.4 Existence; Activities of Xxxxx.
------------------------------
Subject to Article VIII, each of the Company or Xxxxx will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
-----------------
right or franchise if the Board of Directors in good faith shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders. So long as any of the Securities shall remain
outstanding, the Company shall maintain ownership of 100% of the outstanding
securities of Xxxxx, other than the Securities, and Xxxxx shall engage in no
business activities, shall not borrow money and shall not own any property or
assets.
SECTION 10.5 Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in
the conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be prop-
94
erly and advantageously conducted at all times; provided, however, that nothing
--------
in this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such material properties if such discontinuance is
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 10.6 Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Restricted Subsidiaries or upon the income, profits or property of the Company
or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Restricted Subsidiaries; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
-------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.7 Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Restricted Subsidiaries
to, keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause its
Restricted Subsidiaries to, use the proceeds from any such insurance policy to
repair, replace or otherwise restore all material properties to which such
proceeds relate, provided, however, that the Company shall not be required to
-----------------
repair, replace or otherwise restore any such material property if such inaction
is desirable in the conduct of the business of the Company or any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
95
SECTION 10.8 Limitation on Indebtedness.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or in any manner become directly or indirectly liable, contingently or otherwise
(in each case, to "incur"), for the payment of any Indebtedness (including any
Acquired Indebtedness) other than Permitted Indebtedness unless the ratio of (i)
the aggregate consolidated principal amount of Indebtedness of the Company and
its Restricted Subsidiaries outstanding as reflected on the most recent
available quarterly or annual balance sheet, after giving pro forma effect to
the incurrence of such Indebtedness and any other Indebtedness incurred since
such balance sheet date and the receipt and application of the proceeds thereof,
to (ii) Consolidated Cash Flow of the Company and its Restricted Subsidiaries
for the four full fiscal quarters next preceding the incurrence of such
Indebtedness for which consolidated financial statements are available,
determined on a pro forma basis as if any such Indebtedness had been incurred
and the proceeds thereof had been applied at the beginning of such four fiscal
quarters, would be less then 6.0 to 1.
SECTION 10.9 Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any of its
Restricted Subsidiaries or make any payment to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company or
any of its Restricted Subsidiaries (other than dividends or
distributions payable solely in Capital Stock of the Company (other than
Redeemable Capital Stock) or in options, warrants or other rights to
purchase Capital Stock of the Company (other than Redeemable Capital
Stock)) (other than the declaration or payment of dividends or other
distributions to the extent declared or paid to the Company or any
Restricted Subsidiary),
96
(2) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock (other than Redeemable Capital Stock) of the
Company (or of any of its Restricted Subsidiaries if such Capital Stock
is owned by an Affiliate of the Company) or any options, warrants, or
other rights to purchase any such Capital Stock (other than any such
securities owned by a Restricted Subsidiary),
(3) make any principal payments on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior to
any scheduled maturity, scheduled repayment, scheduled sinking fund
payment or other Stated Maturity, any Redeemable Capital Stock or
Subordinated Indebtedness of the Company (other than any such Redeemable
Capital Stock or Subordinated Indebtedness owned by the Company or a
Restricted Subsidiary), or
(4) make any Investment (other than any Permitted Investment) in
any Person
(such payments or Investments described in the preceding clauses (1), (2), (3)
and (4) are collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to the proposed Restricted Payment (the amount
of any such Restricted Payment, if other than cash, shall be the Fair Market
Value of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment),
(A) no Default or Event of Default shall have occurred and be continuing, (B)
immediately prior to and after giving effect to such Restricted Payment, the
Company would be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 10.8 above (assuming a market rate
of interest with respect to such additional Indebtedness) and (C) the aggregate
amount of all Restricted Payments declared or made from and after the Issue Date
would not exceed the sum of:
(i) the excess of the aggregate Consolidated Cash Flow of the
Company minus the product of (x) 1.75 times the Consolidated Interest
Expense of the Company from the Issue Date to August 31, 1999 and (y)
1.5 times the Consolidated Interest Expense of the Company from
September 1, 1999 to August 15,
97
2007, in each case accrued on a cumulative basis during the period
beginning on the Issue Date (or, in the case of clause (y), on September
1, 1999) and ending on the last day of the fiscal quarter of the Company
immediately preceding the date of such proposed Restricted Payment;
(ii) the aggregate net cash proceeds received by the Company as
capital contributions to the Company after the Issue Date and which
constitute shareholders' equity of the Company in accordance with GAAP;
(iii) the aggregate net cash proceeds received by the Company
from the issuance or sale of Capital Stock (excluding Redeemable Capital
Stock) of the Company to any Person (other than to a Subsidiary of
the Company) after the Issue Date;
(iv) the aggregate net cash proceeds received by the Company from
any Person (other than a Subsidiary of the Company) upon the exercise of
any options, warrants or rights to purchase shares of Capital Stock
(other than Redeemable Capital Stock) of the Company after the Issue
Date;
(v) the aggregate net cash proceeds received after the Issue Date
by the Company from any Person (other than a Subsidiary of the Company)
for debt securities that have been converted or exchanged into or for
Capital Stock of the Company (other than Redeemable Capital Stock) (to
the extent such debt securities were originally sold for cash) plus the
aggregate amount of cash received by the Company (other than from a
Subsidiary of the Company) in connection with such conversion or
exchange;
(vi) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment after the Issue Date, an
amount equal to the lesser of the return of capital with respect to such
Investment and the initial amount of such Investment, in either case,
less the cost of the disposition of such Investment; and
(vii) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue
98
Date, with respect to any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary after the Issue Date in
accordance with Section 10.18 of this Indenture, the Fair Market Value
of the Company's interest in such Subsidiary calculated in accordance
with GAAP, provided that such amount shall not in any case exceed the
Designation Amount with respect to such Restricted Subsidiary upon its
Designation,
minus:
the Designation Amount (measured as of the date of Designation) with
respect to any Subsidiary of the Company which has been designated as an
Unrestricted Subsidiary after the Issue Date in accordance with Section
10.18 of this Indenture.
For purposes of the preceding clause (C)(iv), the value of the
aggregate net proceeds received by the Company upon the issuance of Capital
Stock upon the exercise of options, warrants or rights will be the net cash
proceeds received upon the issuance of such options, warrants or rights plus the
incremental amount received by the Company upon the exercise thereof.
None of the foregoing provisions in this Section 10.9 will
prohibit, so long, in the case of clauses (2) to (5) and (7) below, as there is
no Default or Event of Default continuing, (1) the payment of any dividend or
distribution within 60 days after the date of its declaration, if at the date of
declaration such payment would be permitted by the foregoing paragraph; (2) the
redemption, repurchase or other acquisition or retirement of any shares of any
class of Capital Stock of the Company in exchange for, or out of the net cash
proceeds of, a substantially concurrent issue and sale of other shares of
Capital Stock (other than Redeemable Capital Stock) of the Company to any Person
(other than to a Subsidiary of the Company); provided, however, that such net
-------- -------
cash proceeds are excluded from clause (C) of the second preceding paragraph;
(3) any redemption, repurchase or other acquisition or retirement of
Subordinated Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of (A) Capital Stock (other than
Redeemable Capital Stock) of the Company to any Person (other than to a
Subsidiary of
99
the Company); provided, however, that any such net cash proceeds are excluded
-----------------
from clause (C) of the second preceding paragraph; or (B) Indebtedness of the
Company so long as such Indebtedness is Subordinated Indebtedness which (w) has
no Stated Maturity earlier than the 91st day after the Maturity Date, (x) has an
Average Life to Stated Maturity greater than the remaining Average Life to
Stated Maturity of the Securities and (y) is subordinated to the Securities in
the same manner and to the same extent as the Subordinated Indebtedness so
purchased, exchanged, redeemed, acquired or retired; (4) Investments
constituting Restricted Payments made as a result of the receipt of non-cash
consideration from any Asset Sale made pursuant to and in compliance with this
Indenture; (5) the payment of pro rata dividends to holders of Capital Stock of
Restricted Subsidiaries; (6) distributions by the Company to the holders of its
equity interests to the extent necessary to enable such holders to pay federal
and state income tax liabilities arising from income of the Company (other than
income arising from the conversion of the Company into a corporation) and
attributable to them solely by virtue of the fact that the Company is an entity
taxed as a partnership (the amount of any such distribution to be calculated at
the highest applicable marginal income tax rate for a corporation without giving
effect to the tax attributes of any holder of common equity interests), and (7)
payments by the Company to purchase Capital Stock from management or employees
of the Company or any of its Subsidiaries, or their authorized representatives,
upon the death, disability or termination of employment of such employees, in
aggregate amounts under this clause (7) not to exceed $5,000,000 in any fiscal
year of the Company. Any payments made pursuant to clauses (1), (4) and (7) of
this paragraph shall, without duplication, be taken into account in calculating
the amount of Restricted Payments made from and after the Issue Date.
SECTION 10.10 Limitation on Preferred Stock
of Restricted Subsidiaries.
-----------------------------
The Company shall not permit any Restricted Subsidiary to issue
any Preferred Stock other than Preferred Stock issued to the Company or a
Restricted Subsidiary. The Company shall not sell, transfer or otherwise dispose
of Preferred Stock issued by a Restricted Subsidiary of the Company or permit a
Restricted Sub
100
sidiary to sell, transfer or otherwise dispose of Preferred Stock issued by a
Restricted Subsidiary, other than to the Company or a Restricted Subsidiary.
Notwithstanding the foregoing, nothing in such covenant will prohibit the
ownership of Preferred Stock issued by a Person prior to the time (A) such
Person becomes a Restricted Subsidiary of the Company, (B) such Person merges
with or into a Restricted Subsidiary of the Company or (C) a Restricted
Subsidiary of the Company merges with or into such Person; provided, further,
-------- -------
that such Preferred Stock was not issued or incurred by such Person in
anticipation of a transaction contemplated by subclause (A), (B), or (C) above.
SECTION 10.11 Limitation on Transactions
with Affiliates.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, transfer,
disposition, purchase, exchange or lease of assets, property or services) with,
or for the benefit of, any of its Affiliates (other than Restricted
Subsidiaries), except (a) on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those which could have been
obtained in a comparable transaction at such time from Persons who are not
Affiliates of the Company, (b) with respect to a transaction or series of
related transactions involving aggregate payments or value equal to or greater
than $25,000,000, the Company shall have delivered an Officers' Certificate to
the Trustee certifying that such transaction or transactions comply with the
preceding clause (a) and that such transaction or transactions have been
approved by a majority of the Disinterested Members of the Board of Directors of
the Company and (c) with respect to a transaction or series of related
transactions involving aggregate payments or value equal to or greater than
$50,000,000 (other than agreements whereby the Company or a Restricted
Subsidiary of the Company obtains or grants a license or other rights to
broadcast sporting events or syndicated entertainment programs in the ordinary
course of business), the Company shall have obtained a written opinion from an
Independent Financial Advisor stating that the terms of such transaction or
series of transactions are fair, from a financial point of view, to
101
the Company or the Restricted Subsidiary involved, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to (i) transactions with or among the Company and the
Restricted Subsidiaries of the Company, (ii) customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Company
or any Restricted Subsidiary entered into in the ordinary course of business,
(iii) any Restricted Payments paid in compliance with Section 10.9 of this
Indenture, (iv) Permitted Investments, (v) loans and advances to officers,
directors and employees of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made in the
ordinary course of business, (vi) transactions pursuant to agreements existing
on the date of this Indenture or (vii) the incurrence of intercompany
Indebtedness which constitutes Permitted Indebtedness.
SECTION 10.12 Limitations on Liens.
--------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens of any kind
against or upon any of its property or assets, or any proceeds therefrom, unless
the Securities are equally and ratably secured (except that Liens securing
Subordinated Indebtedness shall not be permitted in any circumstances), except
for (a) Liens securing the Securities; (b) Liens securing Indebtedness which is
incurred to refinance Indebtedness which has been secured by a Lien permitted
under this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens do not extend
-----------------
to or cover any property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so refinanced; and (c) Permitted
Liens.
SECTION 10.13 Change of Control.
-----------------
On or before the 30th day after the date of the occurrence of a
Change of Control (the "Change of Control
102
Date"), the Company shall make an Offer to Purchase (a "Change of Control
Offer") on a date not more than 60 nor less than 30 days following the
commencement of the Change of Control Offer, (the "Change of Control Purchase
Date") all of the then Outstanding Securities tendered at a purchase price (the
"Change of Control Purchase Price") equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date. The Company shall be required to purchase all Securities tendered
into the Change of Control Offer and not withdrawn.
On the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money, in immediately available funds, sufficient to pay the purchase price of
all Securities or portions thereof so tendered and accepted and (iii) deliver to
the Trustee the Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof tendered to and accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and make available for
delivery to such Holders a new Security of like tenor equal in principal amount
to any unpurchased portion of the Security surrendered. Any Securities 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 Change of
Control Offer not later than the first Business Day following the Change of
Control Purchase Date.
The Company shall 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 applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
The Company shall comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder, to the extent such
laws or regula-
103
tions are applicable, in the event that a Change of Control occurs and the
Company is required to purchase Securities as described above.
SECTION 10.14 Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any Asset Sale unless (a) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the shares or assets sold or
otherwise disposed of and (b) at least 75% of such consideration consists of
cash or Cash Equivalents or properties or assets that will be used in the
business of the Company and its Restricted Subsidiaries. To the extent that the
Net Cash Proceeds of any Asset Sale are not required to be applied to repay, and
permanently reduce the commitments under, the Bank Credit Agreement or are not
so applied, the Company or such Restricted Subsidiary, as the case may be, may
apply the Net Cash Proceeds from such Asset Sale, within 365 days of such Asset
Sale, (i) to repay Indebtedness incurred not more than 90 days before such Asset
Sale to purchase, or (ii) to the purchase price for an acquisition consummated
not more than 90 days before such Asset Sale of, or (iii) within 365 days after
such Asset Sale to, an investment in properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in properties
and assets that will be used in the business of the Company and its Restricted
Subsidiaries existing on the Issue Date or in businesses reasonably related
thereto ("Replacement Assets"). Any Net Cash Proceeds from any Asset Sale that
are neither used to repay, and permanently reduce the commitments under, the
Bank Credit Agreement nor invested in Replacement Assets within such periods
constitute "Excess Proceeds" subject to disposition as provided below.
When the aggregate amount of Excess Proceeds equals or exceeds
$15,000,000, the Company shall within 20 days thereof make an Offer to Purchase
(an "Asset Sale Offer"), on a pro rata basis from all Holders of the Securities
and all holders of the Company's Senior Discount Notes, an aggregate principal
amount of Securities and Senior Discount Notes at their accreted value
(determined as provided in the Senior Discount Notes) equal to such Excess
Proceeds, at a price in cash for the Securi-
104
ties equal to 100% of the outstanding principal amount thereof (the "Asset Sale
Offer Price") plus accrued and unpaid interest, if any, to the Purchase Date
(and at a price in cash for the Senior Discount Notes as provided in the Senior
Discount Notes). To the extent that the aggregate purchase price for the
Securities and Senior Discount Notes tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company may use such deficiency for general
corporate purposes. The Securities shall be purchased by the Company, at the
option of the Holder thereof, in whole or in part in integral multiples of
$1,000. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds
shall be reset to zero.
On the Asset Sale Offer Purchase Date, the Company shall (i)
accept for payment (subject to pro ration as described in the Offer to Purchase)
Securities or portions thereof tendered pursuant to the Asset Sale Offer, (ii)
deposit with the Paying Agent money, in immediately available funds, sufficient
to pay the purchase price of all Securities or portions thereof so tendered and
accepted and (iii) deliver to the Trustee the Securities so accepted together
with an Officers' Certificate setting forth the Securities or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and make available for delivery to such Holders a new Security of like tenor
equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities 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 not later than the first business
Day following the Asset Sale Offer Purchase Date.
Whenever the aggregate amount of Excess Proceeds received by the
Company and its Restricted Subsidiaries exceeds $15,000,000, such Excess
Proceeds shall, prior to the purchase of Securities, be set aside by the Company
or such Restricted Subsidiary, as the case may be, in a separate account pending
(i) deposit with the Trustee of the amount required to purchase the Securities
tendered in an Asset Sale Offer or (ii) delivery by the Company of the Asset
Sale Offer Price to the Holders of
105
the Securities validly tendered and not withdrawn pursuant to an Asset Sale
Offer. Such Excess Proceeds may be invested in Cash Equivalents, as directed by
the Company, having a maturity date which is not later than the earliest
possible date for purchase of Securities pursuant to the Asset Sale Offer. The
Company will be entitled to any interest or dividends accrued, earned or paid on
such Cash Equivalents.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, create or permit to exist or become effective any
restriction (other than restrictions existing under Indebtedness outstanding on
the date of this Indenture and in the Bank Credit Agreement as of the date of
its execution) that would materially impair the ability of the Company to make
an Asset Sale Offer or, if such an offer is made, to pay for the Securities
tendered for purchase.
The Company shall comply with 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 the event that an Asset Sale occurs and
the Company is required to purchase Securities as described above.
SECTION 10.15 Limitation on Dividends and
Other Payment Restrictions
Affecting Restricted Subsidiaries.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to
(1) pay dividends, in cash or otherwise, or make any other distributions
on or in respect of its Capital Stock or any other interest or
participation in, or measured by, its profits,
(2) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary of the Company,
(3) make loans or advances to the Company or any other Restricted
Subsidiary of the Company,
106
(4) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary of the Company or
(5) guarantee any Indebtedness of the Company or any other Restricted
Subsidiary of the Company,
except for such encumbrances or restrictions existing
under or by reason of
(A) applicable law,
(B) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of the Company or any Restricted
Subsidiary of the Company,
(C) customary restrictions on transfers of property subject to a Lien
permitted under the Indenture,
(D) the Bank Credit Agreement, but only if the Bank Credit Agreement
permits payments to the Company by its Restricted Subsidiaries in
amounts sufficient to make interest payments on the Securities unless
there is a continuing default under the Bank Credit Agreement or the
making of any such interest payment would (with or without the giving of
notice or passage of time or both) result in a default under the Bank
Credit Agreement,
(E) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary of the Company in existence at the
time of such acquisition (but not created in contemplation thereof),
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,
(F) an agreement entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of a Restricted
Subsidiary or an agreement entered into for the sale of specified assets
(in either case, so long as such encumbrance or restriction, by its
terms, terminates on the earlier of the termination of such agreement or
the consummation of such agreement and so long as
107
such restriction applies only to the Capital Stock or assets to be
sold), and
(G) any agreement that amends, extends, refinances, renews or replaces
any agreement described in the foregoing clauses, provided that the
--------
terms and conditions of any such agreement are not materially less
favorable to the Holders of the Securities than those under or pursuant
to the agreement amended, extended, refinanced, renewed or replaced.
SECTION 10.16 Limitation on Guarantees
by Restricted Subsidiaries.
--------------------------
The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, to assume, guarantee or in any other manner become
liable with respect to any Indebtedness of the Company (other than Indebtedness
under the Bank Credit Agreement) unless (A) such Restricted Subsidiary is
permitted to incur such Indebtedness under Section 10.8 of this Indenture, or
(B) (i) such Restricted Subsidiary simultaneously executes and delivers a
guarantee and becomes a guarantor of the Securities and (ii) such Restricted
Subsidiary 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 Restricted Subsidiary of the
Company as a result of any payment by such Restricted Subsidiary under its
guarantee.
SECTION 10.17 Limitations on
Sale-Leaseback Transactions.
---------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale- Leaseback Transaction with respect to any
property of the Company or any of its Restricted Subsidiaries. Notwithstanding
the foregoing, the Company and its Restricted Subsidiaries may enter into
Sale-Leaseback Transactions, provided, that (a) the Attributable Value of such
--------
Sale- Leaseback Transaction shall be deemed to be Indebtedness of the Company or
such Restricted Subsidiary and (b) after giving pro forma effect to any such
--- -----
Sale-Leaseback Transaction and the foregoing clause (a), the Company or such
Restricted Subsidiary would be able to incur $1.00 of additional Indebtedness
(other than Permitted Indebt
108
edness) pursuant to Section 10.8 of this Indenture (assuming a market rate of
interest with respect to such additional Indebtedness).
SECTION 10.18 Limitations on Designation
of Unrestricted Subsidiaries.
----------------------------
(a) The Company may designate after the Issue Date any Subsidiary
as an "Unrestricted Subsidiary" under this Indenture (a "Designation")
-----------
only if:
(i) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming
the effectiveness of such Designation) pursuant to the first
paragraph of Section 10.9 in an amount (the "Designation Amount")
------------------
equal to the Fair Market Value of the Company's interest in such
Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to incur
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 10.8 at the time of such
Designation (assuming the effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to Section
10.9 for all purposes of this Indenture in the Designation Amount.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, at any time (x) provide credit support for or subject
any of its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be
109
directly or indirectly liable for any Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary), except any
non-recourse guarantee given solely to support the pledge by the Company or any
Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary. No
Unrestricted Subsidiary shall at any time guarantee or otherwise provide credit
support for any obligation of the Company or any Restricted Subsidiary, except
as provided in the Bank Credit Agreement. All Subsidiaries of Unrestricted
Subsidiaries shall automatically be deemed to be Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
----------
(i) no Default shall have occurred and be continuing at the time
of and after giving effect to such Revocation;
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if
incurred at such time by a Restricted Subsidiary, have been
permitted to be incurred for all purposes of this Indenture; and
(iii) any transaction (or series of related transactions) between
such Subsidiary and any of its Affiliates that occurred on or
after the Issue Date while such Subsidiary was an Unrestricted
Subsidiary would be permitted by Section 10.11 as if such
transaction (or series of related transactions) had occurred at
the time of such Revocation; provided, however, that this clause
-------- -------
(iii) shall not apply to the revocation of the Designation as an
Unrestricted Subsidiary of an Unrestricted Subsidiary on the
Issue Date.
110
(c) In the event the Company or a Restricted Subsidiary makes any
Investment in any Person which was not previously a Subsidiary and such
Person thereby becomes a Subsidiary, such Person shall automatically be
an Unrestricted Subsidiary and the Company may designate such Subsidiary
as a Restricted Subsidiary only if it meets the foregoing requirements
of clauses (i) and (ii) of paragraph (b).
(d) All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying
compliance with the foregoing provisions.
SECTION 10.19 Provision of Financial Information.
----------------------------------
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission (if
permitted by Commission practice and applicable law and regulations) pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the Company
were subject thereto, such documents to be filed with the Commission on or prior
to the respective dates (the "Required Filing Dates") by which the Company would
have been required to file them. The Company shall also in any event (a) within
15 days after each Required Filing Date (i) transmit, or cause to be
transmitted, by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company is required to file with the Commission pursuant to the preceding
sentence or, if such filing is not so permitted, information of a similar nature
and (b) if filing such documents by the Company with the Commission is not
permitted by Commission practice and applicable law and regulations, promptly
upon written request supply copies of such documents to any prospective Holder;
provided, however, that the Company may omit to provide to the Holders any
-------- -------
exhibit filed with any such reports and documents to the extent the Company
determines that such exhibit does not contain information that is material to
the Holders. In addition, for so long as any Securities remain outstanding, the
Company will
111
furnish to the Holders of Securities 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, and, to any beneficial Holder of
Securities, if not obtainable from the Commission, information of the type that
would be filed with the Commission pursuant to the foregoing provisions upon the
request of any such Holder.
SECTION 10.20 Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(a) The Company shall deliver to the Trustee, prior to March 31
in each year, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within five days after the Company becomes aware of the
occurrence of a Default or an Event of Default, an Officers' Certificate setting
forth the details of such Default or Event of Default, and the action which the
Company proposes to take with respect thereto.
SECTION 10.21 Deposit of Funds with Deposit Agent:
Offer to Purchase upon a Deposit Event.
--------------------------------------
(a) On the Issue Date, the Company shall deposit with the Deposit
Agent the net proceeds of the offering of the Securities after deducting
offering expenses. All Collateral shall be held in the Deposit Account until
permitted to be disbursed pursuant to the Deposit Agreement and then shall be
disbursed strictly in accordance with the terms thereof.
(b) In order to secure the payment and performance of the
Company's obligation to repurchase the Securities tendered in connection with an
Offer to Purchase made upon a Deposit Event, the Company hereby grants to the
Trustee, for the benefit of the Holders, a
112
continuing security interest in and to the Collateral, whether now owned or
existing or hereafter acquired or arising. The Trustee shall have no obligation
to file any financing statement or otherwise take any action to maintain or
perfect any such security interest. The Company covenants and agrees that such
security interest shall be a first priority security interest and that the
Deposit Funds shall not be subject to any other Lien. The Company will not seek
to remove any Deposit Funds held in the Deposit Account prior to the later of
(i) the Rainbow Consummation or (ii) so long as the Company shall have purchased
at the Purchase Price all Securities tendered pursuant to the Offer to Purchase
required upon an Deposit Event, the day after the Purchase Date related to such
Offer to Purchase (or the day after acceptance and set-aside as described in
Section 10.21(g)), other than to fund any Offer to Purchase made pursuant to
paragraph (d) below of this Section 10.21.
(c)(i) In the event of the occurrence of a Deposit Event, the
Company shall notify the Holders of the Securities, in the manner prescribed by
this Indenture, of such occurrence and shall make an Offer to Purchase all
outstanding Securities at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the Purchase Date.
The Expiration Date and Purchase Date of such Offer to Purchase shall be no
later than March 31, 1998. The Company shall not extend the Expiration Date and
Purchase Date of such Offer to Purchase unless required by applicable tender
offer laws or regulations. The Company shall, to the extent that it is required
to make, or as permitted by this Section 10.21 makes, an Offer to Purchase
described in the first sentence of this paragraph (c), fund any shortfall of the
Deposit Funds in the Deposit Account to purchase all Securities tendered
pursuant to such Offer to Purchase.
(ii) If, at any time prior to December 30, 1997, the Company
determines that there is no reasonable likelihood that the Rainbow Consummation
will occur by December 30, 1997, the Company shall have the right, but not the
obligation, prior to December 30, 1997, to make an Offer to Purchase all
Outstanding Securities, at the same price, and on the same terms, as the Offer
to Purchase required by paragraph (c)(i) above of this Section 10.21 provided
that the Company makes a concurrent Offer
113
with respect to the Senior Discount Notes, and, in such event, on the Purchase
Date for such Offer to Purchase, the Trustee shall direct the Deposit Agent to
transfer the Deposit Funds and other Collateral to the Trustee (acting as Paying
Agent for the Company) to fund the purchase of Securities pursuant thereto. If
the Company makes such an Offer to Purchase, then, notwithstanding anything to
the contrary contained herein, the Company shall not be obligated to make an
Offer to Purchase upon the occurrence of a Deposit Event, provided that the
Company purchases all Securities tendered pursuant to such earlier Offer to
Purchase on or before March 31, 1998.
(d) If a Deposit Event occurs, the Deposit Agent will transfer
the Deposit Funds and other Collateral to the Trustee (acting as Paying Agent
for the Company) in accordance with the Deposit Agreement to fund the repurchase
of Securities pursuant to an Offer to Purchase required by section 10.21(c)(i).
The Company shall direct the Trustee to, within five Business Days of the
receipt thereof, transfer all such Deposit Funds and other Collateral, into an
irrevocable trust for the sole and exclusive benefit of the Holders of
Securities with the Company only entitled to any residual after all Securities
that are tendered are purchased at the Purchase Price.
(e) If, on or before December 30, 1997, the Company delivers to
the Trustee an Officers' Certificate certifying that the Rainbow Consummation
has occurred or will occur immediately upon release of the Deposit Funds, the
Trustee shall authorize the Deposit Agent to release all Deposit Funds and other
Collateral in the Deposit Account to the Company.
(f) Pending release of the Deposit Funds as provided in the
Deposit Agreement, the Deposit Funds will be invested in Marketable Securities
(as defined in the Deposit Agreement) as specifically directed in writing by the
Company. Any interest or other profit resulting from such investment will be
deposited in the Deposit Account.
(g) Upon the purchase by the Company of all Securities tendered
pursuant to an Offer to Purchase made pursuant to Section 10.21(c), or the
setting aside after acceptance by the Company of all Securities tendered
114
pursuant to such Offer to Purchase by the Trustee, as applicable, of all Deposit
Funds and other Collateral in the Deposit Account necessary to purchase such
Securities and pay any related expenses pursuant to an irrevocable trust for the
sole and exclusive benefit of the Holders, any amounts remaining in the Deposit
Account and not so set aside shall promptly be released to the Company.
SECTION 10.22 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 8.1, provided pursuant to Section
9.1(2) and set forth in Sections 10.4 to 10.12 and 10.15 to 10.18, inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer as to which an
-----------------
Offer to Purchase has been mailed, no such waiver may be made or shall be
effective against any Holder tendering Securities pursuant to such Offer, and
the Company may not omit to comply with the terms of such Offer as to such
Holder.
Notwithstanding anything set forth in this Indenture to the
contrary, if no Default shall have occurred and be continuing on any day when
the Securities are rated by both Xxxxx'x and S&P in one of its generic rating
categories which signifies investment grade (which at the date of this Indenture
are the four highest rating categories (within which there are sub-categories
indicating relative standing)), the limitations set forth in Sections 10.4 to
10.11 and 10.14 to 10.18, inclusive and clause (c) in Section 8.1 shall no
longer be applicable.
115
ARTICLE XI
Redemption of Securities
SECTION 11.1 Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, in
the amounts, at the times, at the Redemption Prices (together with any
applicable accrued and unpaid interest to the Redemption Date), and subject to
the conditions specified in the form of Security hereinafter set forth.
SECTION 11.2 Applicability of Article.
------------------------
Redemption of Securities at the election of the Company, as
permitted by this Indenture and the provisions of the Securities, shall be made
in accordance with such provisions and this Article.
SECTION 11.3 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 11.1, shall be evidenced by a Board Resolution. In the event of any
redemption at the election of the Company pursuant to Section 11.1, the Company
shall notify the Trustee, in case of a redemption of less than all the
Securities, at least 60 days, and in the case of a redemption of all the
Securities, at least 40 days, prior to the Redemption Date fixed by the Company
(in each case, unless a shorter notice shall be satisfactory to the Trustee)of
such Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
In the event that less than all of the Securities are to be
redeemed at any time, selection of such Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed or, if the
Securities are not then listed on a national securities exchange, on a pro rata
--------
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that Securities shall
-------- -------
116
only be redeemable in amounts of $1,000 or an integral multiple of $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture and of the Securities, unless
the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 11.5 Notice of Redemption.
--------------------
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including, if used, CUSIP or CINS numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after such Redemption Date,
117
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) if the redemption is being made pursuant to the provisions of
the Securities regarding a Public Equity Offering or a sale of Qualified
Equity Interests of the Company to Strategic Equity Investors, a brief
description of the transaction or transactions giving rise to such
redemption, the nature and amount of Qualified Equity Interests sold
by the Company thereto in such transaction or transactions, the
aggregate purchase price thereof and the net cash proceeds therefrom
available for such redemption, the date or dates on which such
transaction or transactions were completed and the percentage of the
aggregate principal amount of Outstanding Securities being redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.
SECTION 11.6 Deposit of Redemption Price.
---------------------------
Prior to 1:00 p.m., New York City time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any applicable accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 11.7 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and any
applicable accrued interest) such Securities shall not bear interest. Upon
surrender of any such Security for redemption in accordance with
118
said notice, such Security shall be paid by the Company at the Redemption Price,
together with any applicable accrued and unpaid interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
-----------------
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more predecessor securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption in accordance with the
election of the Company made pursuant to Section 11.1 shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 11.8 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company and Xxxxx shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount at
Stated Maturity equal to and in exchange for the unredeemed portion of the
principal amount at Stated Maturity of the Security so surrendered.
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.1 Company's Option to Effect
Defeasance or Covenant Defeasance.
---------------------------------
The Company may elect, at its option at any time, to have Section
12.2 or Section 12.3 applied to the Outstanding Securities (as a whole and not
in part) upon
119
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution.
SECTION 12.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), each of the
Company and Xxxxx shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 12.4 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company and Xxxxx shall be deemed to have paid and discharged the entire
Indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of Outstanding Securities to receive, solely from the trust fund
described in Section 12.4 and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Securities
when payments are due, (2) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its option to
have this Section applied to the Outstanding Securities (as a whole and not in
part) notwithstanding the prior exercise of its option to have Section 12.3
applied to such Securities.
SECTION 12.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), (i) the
Company shall be released from its obligations under Section 8.1(3), Sections
10.5 through 10.19, inclusive, and any covenant provided pursuant to Section
9.1(2) and (ii) the occurrence of any event specified in Section 5.1(3) (with
respect to Section 8.1(3) and any of Sections 10.5
120
through 10.19, inclusive, and any such covenants provided pursuant to Section
9.1(2)), shall be deemed not to be or result in an Event of Default, in each
case with respect to such Securities as provided in this Section on and after
the date the conditions set forth in Section 12.4 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 5.1(3)), whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance
or Covenant Defeasance.
----------------------
The following shall be the conditions to the application of
Section 12.2 or Section 12.3 to the Outstanding Securities:
(1) The Company or Xxxxx shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and agrees to
comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and any instalment of
121
interest on such Securities on the respective Stated Maturities thereof,
in accordance with the terms of this Indenture and such Securities. As
used herein, "U.S. Government Obligation" means (x) any security which
is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America,
which, in either case (i) or (ii), is not callable or redeemable at the
option of the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a) (2) of the Securities Act) as custodian
with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
--------
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 12.2 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if
122
such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 12.3 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) No Default or Event of Default with respect to the
Outstanding Securities shall have occurred and be continuing at the time
of such deposit.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of
the Company.
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company or any Subsidiary is a
party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to
any rights of holders of Indebtedness, including, without limitation,
those arising under this Indenture, after the 121st day following the
deposit and (B) after the 121st 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.
(8) 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 the Securities over the
123
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
(9) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and
interest on the Securities on the date of such deposit or at any time
ending on the 121st day after the date of such deposit.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent under this Indenture to either Defeasance or Covenant
Defeasance, as the case may be, have been complied with.
SECTION 12.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions.
-----------------------------------
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 12.6, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 12.4 in respect
of the Outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
124
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 12.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to the Outstanding Securities.
SECTION 12.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining,
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 12.2 or 12.3 shall be revived and reinstated
(commencing with the date such order or judgment becomes final and binding and
not subject to further appeal) as though no deposit had occurred pursuant to
this Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
12.5 with respect to such Securities in accordance with this Article; provided,
--------
however, that if the Company makes any payment of principal of or any premium or
-------
interest on any such Security following such reinstatement of its obligations,
the Company or Xxxxx shall be subrogated to the rights (if any) of the Holders
of such Securities to receive such payment from the money so held in trust. No
action taken or omitted to be taken by the Company, Xxxxx or any Subsidiary of
the Company subsequent to compliance with the provisions of Section 12.4 hereof
and prior to any order or judgment of a court or governmental authority
described in the immediately preceding sentence shall cause an Event of Default
under this Indenture (other than under Section 5.1(1) or 5.1(2) hereof), unless
such order or judgment was obtained by or on behalf of, or with the cooperation
of, the Company, Xxxxx or a Subsidiary of the Company.
125
ARTICLE XIII
COLLATERAL AND SECURITY
SECTION 13.1 Deposit Agreement.
-----------------
The due and punctual payment of the principal of and interest on
the Securities when and as the same shall be due and payable on an Interest
Payment Date, at maturity or by acceleration, and interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the
Securities and performance of all other obligations of the Company to the
Holders of Securities or the Trustee under this Indenture with respect to the
Securities and the Securities, according to the terms hereunder or thereunder,
shall be secured as provided in the Deposit Agreement which the Company, the
Deposit Agent and the Trustee have entered into simultaneously with the
execution of this Indenture. Upon the acceleration of the maturity of the
Securities, the Trustee shall foreclose upon the Collateral. Each Holder of
Securities, by its acceptance thereof, consents and agrees to the terms of the
Deposit Agreement (including, without limitation, the provisions providing for
foreclosure and disbursement of Collateral) 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 Deposit Agent and the Trustee to enter into the Deposit Agreement
and to perform their respective obligations and exercise their respective rights
thereunder in accordance therewith. The Company shall deliver to the Trustee
copies of the Deposit 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 Deposit Agreement, to assure and confirm to the Trustee the
security interest in the Collateral contemplated by the Deposit 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 with respect to, and
of, the Securities, according to the intent and purposes expressed in the
Deposit Agreement. The Company shall take any and all actions reasonably
required to cause the Deposit Agreement to create and maintain (to the extent
possible under applicable law) as security for the obligations of the Company
hereunder, a valid and enforceable perfected first priority Lien in and on all
the Collateral, in favor of the Trustee for
126
the benefit of the Holders of Securities, superior to and prior to the rights of
all third Persons and subject to no other Liens. The Trustee shall have no
responsibility for perfecting or maintaining the perfection of the Trustee's
security interest in the Collateral or for filing any instrument, document or
notice in any public office at any time or times.
SECTION 13.2 Recording and Opinions.
----------------------
The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel substantially in
the form of Exhibit E hereto.
SECTION 13.3 Release of Collateral.
---------------------
(a) Subject to subsections (b), (c) and (d) of this Section 13.3,
Collateral may be released from the Lien and security interest created by the
Deposit Agreement only in accordance with the provisions of the Deposit
Agreement.
(b) Except to the extent that any Lien on proceeds of Collateral
is automatically released by operation of Section 9-306 of the Uniform
Commercial Code or other similar law, no Collateral shall be released from the
Lien and security interest created by the Deposit Agreement pursuant to the
provisions of the Deposit Agreement, other than to the Holders pursuant to the
terms thereof, unless there shall have been delivered to the Trustee the
certificate required by Section 13.3(d) and Section 13.4.
(c) At any time when an Event of Default shall have occurred and
be continuing and the maturity of the Securities shall have been accelerated
(whether by declaration or otherwise), no Collateral shall be released pursuant
to the provisions of the Deposit Agreement, and no release of Collateral in
contravention of this Section 13.3(c) shall be effective as against the Holders
of Securities, except for the disbursement of all Deposit Funds (as defined in
the Deposit Agreement) and other Collateral to the Trustee pursuant to section
6(b) of the Deposit Agreement.
127
(d) The release of any Collateral from the Liens and security
interests created by this Indenture and the Deposit Agreement shall not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant to
the terms of the Deposit Agreement. To the extent applicable, the Company shall
cause TIA ss. 314(d) relating to the release of property or securities from the
Lien and security interest of the Deposit 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
Trustee in the exercise of reasonable care.
SECTION 13.4 Certificates of the Company.
---------------------------
The Company shall furnish to the Trustee, prior to any proposed
release of Collateral other than pursuant to the express terms of the Deposit
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 may, to the extent permitted by Section 6.1 and Section 6.3,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
SECTION 13.5 Authorization of Actions to be Taken by the Trustee
Under the Deposit Agreement.
----------------------------------------------
Subject to the provisions of Section 6.1 and 6.3, the Trustee
may, without the consent of the Holders of Securities, on behalf of the Holders
of Securities, take all actions it deems necessary or appropriate in order to
(a) enforce any of the terms of the Deposit Agreement and (b) collect and
receive any and all amounts payable in respect of the obligations of the Company
hereunder. The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Deposit Agreement or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or
128
protect its interests and the interests of the Holders of Securities in the
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 Securities or of the Trustee).
SECTION 13.6 Authorization of Receipt of Funds by the Trustee
Under the Deposit Agreement.
------------------------------------------------
The Trustee is authorized to receive any funds for the benefit of
the Holders of Securities disbursed under the Deposit Agreement, and to make
further distributions of such funds to the Holders of Securities according to
the provisions of this Indenture.
SECTION 13.7 Termination of Security Interest.
--------------------------------
Upon the earliest to occur of (i) the date upon which the balance
of Deposit Funds and other Collateral shall have been reduced to zero, (ii) the
payment in full of all obligations of the Company under this Indenture and the
Securities, (iii) legal defeasance pursuant to section 12.2 and (iv) covenant
defeasance pursuant to Section 12.3, the Trustee shall, at the written request
of the company, release the Liens pursuant to this Indenture and the Deposit
Agreement upon the Company's compliance with the provisions of the TIA
pertaining to release of collateral.
-------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
129
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and attested as of the day and year first above written.
FOX/LIBERTY NETWORKS, LLC
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President,
Finance
Attest:
/s/ Xxxx Xxxxxx
-----------------------------
FLN FINANCE, INC.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President,
Finance
Attest:
/s/ Xxxx Xxxxxx
------------------------------
The Bank of New York, as Trustee
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
130
EXHIBIT B-1
-----------
[FORM OF SECURITY]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY
PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY,
THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS
B-1-1
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Fox/Liberty Networks, LLC
FLN Finance, Inc.
8-7/8% Senior Note due 2007, Series A
No. __________ $________
CUSIP NO._______
Fox/Liberty Networks, LLC, a limited liability company duly
organized and existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor Person under the Indenture
hereinafter referred to), and FLN Finance, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called "Xxxxx,"
which term included any successor Person under the Indenture hereinafter
referred to), for value received, hereby jointly and severally promise to pay to
__________ or registered assigns, the principal sum of ___________________
Dollars on August 15, 2007 and to pay interest thereon from August 25, 1997 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on February 15 and August 15 in each year,
commencing February 15, 1998 at the rate of 8-7/8% per annum, until the
principal hereof is paid or duly provided for, provided that any principal and
--------
premium, and any such instalment of interest, which is overdue shall bear
interest at the rate of 8-7/8% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or duly provided for. The interest so payable and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the February 1 and August
1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
B-1-2
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
B-1-3
IN WITNESS WHEREOF, the Company and FLN Finance, Inc. have each
caused this instrument to be duly executed and attested.
Attest: Fox/Liberty Networks, LLC
_____________________ By: ______________________
Title: Title:
Attest: FLN Finance, Inc.
_____________________ By: ______________________
Title: Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
Dated: By _________________________
Authorized Signatory
Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of
the Company and Xxxxx designated as 8-7/8% Senior Notes due 2007, Series A
(herein called the "Initial Securities"), limited in aggregate principal amount
at Stated Maturity to $500,000,000 issued and to be issued under an Indenture,
dated as of August 25, 1997 (herein called the "Indenture," which term shall
have the meaning assigned to it in such instrument), among the Company, Xxxxx
and The Bank of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, Xxxxx,
B-1-4
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities
include the Initial Securities, the Private Exchange Securities and the
Unrestricted Securities (including the Exchange Securities referred to below),
issued in exchange for the Initial Securities pursuant to the Registration
Rights Agreement. The Initial Securities, the Private Exchange Securities and
the Unrestricted Securities are treated as a single class of securities under
the Indenture.
The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 7aaa - 77bbbb (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Securities
are subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company or
Xxxxx, in whole or in part, at any time on or after August 15, 2002, at the
Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest, if any, to the Redemption Date, if
redeemed during the 12-month period beginning August 15 of the years indicated
below:
Redemption
Year Price
---- ----------
2002 .................................... 104.438%
2003 .................................... 102.958%
2004 .................................... 101.479%
2005 and thereafter......................... 100%
In addition, at any time, or from time to time, on or prior to
August 15, 2000, the Company may, at its option, use the net cash proceeds of
(a) one or more Public Equity Offerings or (b) sales of Qualified Equity
Interests to Strategic Equity Investors to redeem up to an aggregate of 35% of
the principal amount of the Securities originally issued, at a redemption price
equal to 108-7/8% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date; provided that at least $325,000,000 in
aggregate principal amount of Securities remains outstanding immediately after
the occurrence of such redemption. In order to effect the foregoing redemption
with the proceeds of any Public Equity Offering or sale of Qualified Equity
Interests to Strategic Equity Investors, the Company shall send the redemption
notice not later than 60 days after the consummation of such Public Equity
Offering or sale of Qualified Equity Interests to Strategic Equity Investors.
B-1-5
The Securities are not subject to any sinking fund.
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control, to make an offer to purchase all outstanding
Securities at a purchase price of 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase, (b) to make an
offer to purchase Securities with a portion of the net cash proceeds of certain
sales or other dispositions of assets at a purchase price of 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase and (c) to make an offer to purchase all outstanding Securities if
the Rainbow Consummation has not occurred prior to December 30, 1997 at a
purchase price of 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
In the event of redemption or purchase of this Security in part
only pursuant to a Change of Control Offer or an Asset Sale Offer, a new
Security or Securities for the unredeemed or unpurchased portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may
be declared due and payable the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Securities, in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and Xxxxx and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount at
Stated Maturity of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company and Xxxxx with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
B-1-6
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding for 15 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein
(or, in the case of redemption, on or after the Redemption Date or, in the case
of any purchase of this Security required to be made pursuant to a Change of
Control Offer or an Asset Sale Offer or a Deposit Offer, on or after the
relevant purchase date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
This Security is issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
B-1-7
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, Xxxxx, the Trustee and any agent of the Company, Xxxxx,
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, Xxxxx, the Trustee nor any such agent shall be affected by
notice to the contrary.
Pursuant to the Registration Rights Agreement by and among the
Company, Xxxxx and the Initial Purchasers, the Company and Xxxxx will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Security shall have the right to exchange this Security for 8-7/8% Senior Notes
due 2007, Series B, of the Company and Xxxxx (herein called the "Exchange
Securities"), which have been registered under the Securities Act, in like
principal amount and having identical terms as the Initial Securities (other
than as set forth in this paragraph). The Holders of Initial Securities shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
B-1-8
ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I (or we) assign and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
-------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration settlement under the
Securities Act of 1933, as amended (the "Securities Act"), covering resales of
--------------
this Security (which effectiveness shall not have been suspended or terminated
at the date of the transfer) and (ii) the date two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) after the later of the original issuance date appearing on
the face of this Security (or any predecessor thereto) or the last date on which
the Company or any affiliate of the Company was the owner of this Security (or
any predecessor thereto), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that:
[Check One]
---------
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents, including a transferor certificate substantially
in the form of Exhibit D to the Indenture in the case of a transfer
---------
pursuant to Regulation S, are being fur-
B-1-9
nished which comply with the conditions of transfer set
forth in this Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obliged to register this Security in the name
of any Person other than the Holder hereof unless and until the conditions to
any such transfer of registration set forth herein and in Section 3.14 of the
Indenture shall have been satisfied.
-------------------------------------------------------------------------------
Date: ________ Your signature __________________________
(Sign exactly as your name appears
on the other side of this Security)
By: ______________________
NOTICE: To be executed
by an executive officer
Signature Guarantee: _____________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _________ ______________________________
NOTICE: To be executed by an executive
officer
B-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its
entirety by the Company pursuant to Section 10.13, 10.14 or 10.21 of the
Indenture, check the box:
[_]
If you want to elect to have only a part of the principal amount
of this Security purchased by the Company pursuant to Section 10.13, 10.14 or
10.21 of the Indenture, state the portion of such amount: $_____________
Dated: Your Signature:
--------------------------
(Sign exactly as name appears on the oth-
er side of this Security)
Signature Guarantee: ________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New York Stock Exchange,
Inc. Medallion Signature Program ("MSP") or such other signature
guarantee program as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
B-1-11
Fox/Liberty Networks, LLC
FLN Finance, Inc.
8-7/8% Senior Note due 2007, Series B
No. __________ $________
CUSIP NO._______
Fox/Liberty Networks, LLC, a limited liability company duly
organized and existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor Person under the Indenture
hereinafter referred to), and FLN Finance, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called "Xxxxx,"
which term included any successor Person under the Indenture hereinafter
referred to), for value received, hereby jointly and severally promise to pay to
___________ or registered assigns, the principal sum of ___________________
Dollars on August 15, 2007 and to pay interest thereon from August 25, 1997 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on February 15 and August 15 in each year,
commencing February 15, 1998 at the rate of 8-7/8% per annum, until the
principal hereof is paid or duly provided for, provided that any principal and
--------
premium, and any such instalment of interest, which is overdue shall bear
interest at the rate of 8-7/8% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or duly provided for. The interest so payable and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the February 1 or August 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
B-2-1
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
B-2-2
IN WITNESS WHEREOF, the Company and FLN Finance, Inc. have each
caused this instrument to be duly executed and attested.
Attest: Fox/Liberty Networks, LLC
_____________________ By: ______________________
Title: Title:
Attest: FLN Finance, Inc.
_____________________ By: ______________________
Title: Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
Dated: By _________________________
Authorized Signatory
Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of
the Company and Xxxxx designated as 8-7/8% Senior Notes due 2007, Series B
(herein called the "Initial Securities"), limited in aggregate principal amount
at Stated Maturity to $500,000,000 issued and to be issued under an Indenture,
dated as of August 25, 1997 (herein called the "Indenture," which term shall
have the meaning assigned to it in such instrument), among the Company, Xxxxx
and The Bank of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, Xxxxx, the Trustee and
the Holders of the Securities and of the terms
B-2-3
upon which the Securities are, and are to be, authenticated and delivered. The
Securities include the Initial Securities, the Private Exchange Securities and
the Unrestricted Securities (including the Exchange Securities), issued in
exchange for the Initial Securities pursuant to the Registration Rights
Agreement. The Initial Securities, the Private Exchange Securities and the
Unrestricted Securities are treated as a single class of securities under the
Indenture.
The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 7aaa - 77bbbb (the "TIA")), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Securities
are subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company or
Xxxxx, in whole or in part, at any time on or after August 15, 2002, at the
Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest, if any, to the Redemption Date, if
redeemed during the 12-month period beginning August 15 of the years indicated
below:
Redemption
Year Price
---- ----------
2002 .................................... 104.438%
2003 .................................... 102.958%
2004 .................................... 101.479%
2005 and thereafter......................... 100%
In addition, at any time, or from time to time, on or prior to
August 15, 2000, the Company may, at its option, use the net cash proceeds of
(a) one or more Public Equity Offerings or (b) sales of Qualified Equity
Interests to Strategic Equity Investors to redeem up to an aggregate of 35% of
the principal amount of the Securities originally issued, at a redemption price
equal to 108-7/8% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date; provided that at least $325,000,000 in
aggregate principal amount of Securities remains outstanding immediately after
the occurrence of such redemption. In order to effect the foregoing redemption
with the proceeds of any Public Equity Offering or sale of Qualified Equity
Interests to Strategic Equity Investors, the Company shall send the redemption
notice not later than 60 days after the consummation of such Public Equity
Offering or sale of Qualified Equity Interests to Strategic Equity Investors.
The Securities are not subject to any sinking fund.
B-2-4
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control, to make an offer to purchase all outstanding
Securities at a purchase price of 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase, (b) to make an
offer to purchase Securities with a portion of the net cash proceeds of certain
sales or other dispositions of assets at a purchase price of 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase and (c) to make an offer to purchase all outstanding Securities if
the Rainbow Consummation has not occurred prior to December 30, 1997 at a
purchase price of 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
In the event of redemption or purchase of this Security in part
only pursuant to a Change of Control Offer or an Asset Sale Offer, a new
Security or Securities for the unredeemed or unpurchased portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may
be declared due and payable the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Securities, in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and Xxxxx and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount at
Stated Maturity of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company and Xxxxx with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
B-2-5
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding for 15 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein
(or, in the case of redemption, on or after the Redemption Date or, in the case
of any purchase of this Security required to be made pursuant to a Change of
Control Offer or an Asset Sale Offer or a Deposit Offer, on or after the
relevant purchase date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
This Security is issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
B-2-6
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, Xxxxx, the Trustee and any agent of the Company , Xxxxx
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, Xxxxx, the Trustee nor any such agent shall be affected by
notice to the contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
B-2-7
ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I (or we) assign and transfer this Security to
------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevo-
cably appoint
-------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for such agent.
Date: ________ Your signature __________________________
(Sign exactly as your name appears
on the other side of this Security)
By: ______________________
NOTICE: To be executed
by an executive officer
Signature Guarantee: _____________________________
B-2-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its
entirety by the Company pursuant to Section 10.13, 10.14 or 10.21 of the
Indenture, check the box:
[_]
If you want to elect to have only a part of the principal amount
of this Security purchased by the Company pursuant to Section 10.13, 10.14 or
10.21 of the Indenture, state the portion of such amount: $_____________
Dated: Your Signature: __________________________________________
(Sign exactly as name appears on the oth-
er side of this Security)
Signature Guarantee: ________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New York Stock Exchange,
Inc. Medallion Signature Program ("MSP") or such other signature
guarantee program as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
B-2-9
EXHIBIT C
---------
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE O THE DEPOSITORY)
MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
New York, New York
Attention: Corporate Trustee Administration
Re: Fox/Liberty Networks, LLC
(the "Company") Senior Notes
due 2007 (the "Securities")
----------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
--------------
(1) the offer of the Securities was not made to a
Person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market described in Rule
902(a) of Regulation S and neither we nor any Person acting on our
behalf knows that the transaction has been pre-arranged with a buyer in
the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities;
(6) if the circumstances set forth in rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during
the restricted period
D-1
specified in Rule 903(c)(2) or (3), as applicable, only in accordance
with the provisions of Regulation S; pursuant to registration of the
Securities under the Securities Act; or pursuant to another available
exemption from the registration requirements under the Securities Act;
and
(7) if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) are applicable thereto, we confirm that
such sale has been made in accordance with such provisions.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________
Authorized Signature
D-2
