1
EXHIBIT 4.1
------------------------------------------------------------
HOLLYWOOD THEATERS, INC.
As Issuer
and
The Guarantors Named Herein
As Guarantors
TO
U.S. Trust Company of Texas, N.A.
As Trustee
----------------
Indenture
Dated as of August 7, 1997
----------------
$110,000,000
10 5/8% Senior Subordinated Notes due August 1, 2007
------------------------------------------------------------
2
.....................................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 7, 1997
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
Section 311 (a) ............................... 613(a)
(b) ............................... 613(b)
(b)(2) ............................... 703(a)(2)
703(b)
Section 312 (a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
Section 313 (a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
Section 314 (a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
Section 315 (a) ............................... 601(a)
(b) ............................... 000
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0
Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Section Section
--------------- ---------
703(a)(6)
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
(d)(2) ............................... 601(c)(2)
(d)(3) ............................... 601(c)(3)
(e) ............................... 514
Section 316 (a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
Section 317 (a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
Section 318 (a) ............................... 107
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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4
TABLE OF CONTENTS
Page
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company and the Guarantors . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
Acquired Debt . . . . . . . . . . . . . . . . . . . . . 3
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 3
Agent Member . . . . . . . . . . . . . . . . . . . . . . 3
Applicable Procedures . . . . . . . . . . . . . . . . . 4
Asset Disposition . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . 5
Board Resolution . . . . . . . . . . . . . . . . . . . . 5
Business Day . . . . . . . . . . . . . . . . . . . . . . 5
Capital Lease Obligation . . . . . . . . . . . . . . . . 5
Capital Stock . . . . . . . . . . . . . . . . . . . . . 5
Cash Equivalents . . . . . . . . . . . . . . . . . . . . 6
Cedel . . . . . . . . . . . . . . . . . . . . . . . . . 6
Closing Date . . . . . . . . . . . . . . . . . . . . . . 6
Commission . . . . . . . . . . . . . . . . . . . . . . . 6
Common Stock . . . . . . . . . . . . . . . . . . . . . . 6
Company . . . . . . . . . . . . . . . . . . . . . . . . 6
Company Request; Company Order . . . . . . . . . . . . . 7
Consolidated Cash Flow
Available for Fixed Charges . . . . . . . . . . . . . 7
Consolidated Cash Flow Ratio . . . . . . . . . . . . . . 7
Consolidated Fixed Charges . . . . . . . . . . . . . . . 8
Consolidated Income Tax Expense . . . . . . . . . . . . 8
___________
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Consolidated Interest Expense . . . . . . . . . . . . . 8
Consolidated Net Income . . . . . . . . . . . . . . . . 9
Consolidated Net Worth . . . . . . . . . . . . . . . . . 10
Consolidated Tangible Assets . . . . . . . . . . . . . . 10
Corporate Trust Office . . . . . . . . . . . . . . . . . 10
corporation . . . . . . . . . . . . . . . . . . . . . . 10
Crown . . . . . . . . . . . . . . . . . . . . . . . . . 10
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Depositary . . . . . . . . . . . . . . . . . . . . . . . 11
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Designated Senior Debt . . . . . . . . . . . . . . . . . 12
Euroclear . . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default . . . . . . . . . . . . . . . . . . . . 12
Exchange Act . . . . . . . . . . . . . . . . . . . . . . 12
Exchange and Registration Rights
Agreement . . . . . . . . . . . . . . . . . . . . . . . 12
Exchange Notes . . . . . . . . . . . . . . . . . . . . . 12
Exchange Offer . . . . . . . . . . . . . . . . . . . . . 12
Exchange Registration Statement . . . . . . . . . . . . 12
Global Note . . . . . . . . . . . . . . . . . . . . . . 13
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 13
Guarantor Senior Debt . . . . . . . . . . . . . . . . . 13
Guarantors . . . . . . . . . . . . . . . . . . . . . . . 14
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 14
Holdings . . . . . . . . . . . . . . . . . . . . . . . . 14
Initial Purchasers . . . . . . . . . . . . . . . . . . . 15
Incur . . . . . . . . . . . . . . . . . . . . . . . . . 14
Indenture . . . . . . . . . . . . . . . . . . . . . . . 14
Interest Payment Date . . . . . . . . . . . . . . . . . 15
Interest Rate, Currency
or Commodity Price Agreement . . . . . . . . . . . . . 15
Investment . . . . . . . . . . . . . . . . . . . . . . . 15
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 16
Moodys . . . . . . . . . . . . . . . . . . . . . . . . . 16
Net Available Proceeds . . . . . . . . . . . . . . . . . 16
New Senior Bank Facility . . . . . . . . . . . . . . . . 17
Note Purchase Agreement . . . . . . . . . . . . . . . . 13
Notes . . . . . . . . . . . . . . . . . . . . . . . . . 17
Offer to Purchase . . . . . . . . . . . . . . . . . . . 17
Officers' Certificate . . . . . . . . . . . . . . . . . 21
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Opinion of Counsel . . . . . . . . . . . . . . . . . . . 21
Original Notes . . . . . . . . . . . . . . . . . . . . . 21
Outstanding . . . . . . . . . . . . . . . . . . . . . . 21
Parent Guarantee . . . . . . . . . . . . . . . . . . . . 22
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 22
Permitted Holder . . . . . . . . . . . . . . . . . . . . 22
Permitted Interest Rate, Currency
or Commodity Price Agreement . . . . . . . . . . . . 22
Permitted Investments . . . . . . . . . . . . . . . . . 23
Person . . . . . . . . . . . . . . . . . . . . . . . . . 23
Predecessor Note . . . . . . . . . . . . . . . . . . . . 24
Preferred Stock . . . . . . . . . . . . . . . . . . . . 24
Public Equity Offering . . . . . . . . . . . . . . . . . 24
Qualifying Theater Assets . . . . . . . . . . . . . . . 24
Receivables . . . . . . . . . . . . . . . . . . . . . . 25
Receivables Sale . . . . . . . . . . . . . . . . . . . . 25
Redeemable Stock . . . . . . . . . . . . . . . . . . . . 25
Redemption Date . . . . . . . . . . . . . . . . . . . . 25
Registration Default . . . . . . . . . . . . . . . . . . 25
Registration Default Period . . . . . . . . . . . . . . 25
Regulation S . . . . . . . . . . . . . . . . . . . . . . 26
Regulation S Certificate . . . . . . . . . . . . . . . . 26
Regulation S Global Note . . . . . . . . . . . . . . . . 26
Regulation S Legend . . . . . . . . . . . . . . . . . . 26
Regulation S Notes . . . . . . . . . . . . . . . . . . . 26
Related Person . . . . . . . . . . . . . . . . . . . . . 26
Responsible Officer . . . . . . . . . . . . . . . . . . 26
Restricted Period . . . . . . . . . . . . . . . . . . . 27
Restricted Notes . . . . . . . . . . . . . . . . . . . . 27
Restricted Notes Certificate . . . . . . . . . . . . . . 27
Restricted Notes Legend . . . . . . . . . . . . . . . . 27
Restricted Subsidiary . . . . . . . . . . . . . . . . . 27
Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . 27
Rule 144A Securities . . . . . . . . . . . . . . . . . . 27
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . 27
S&P . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Securities Act . . . . . . . . . . . . . . . . . . . . . 28
Securities Register . . . . . . . . . . . . . . . . . . 28
Senior Debt . . . . . . . . . . . . . . . . . . . . . . 28
Senior Subordinated Guarantees . . . . . . . . . . . . . 28
Shelf Registration Statement . . . . . . . . . . . . . . 29
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Special Interest . . . . . . . . . . . . . . . . . . . . 29
Stated Maturity . . . . . . . . . . . . . . . . . . . . 29
Subordinated Debt . . . . . . . . . . . . . . . . . . . 29
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantees . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantors . . . . . . . . . . . . . . . . . 30
Successor Note . . . . . . . . . . . . . . . . . . . . . 31
Temporary Cash Investments . . . . . . . . . . . . . . . 31
Trust Indenture Act . . . . . . . . . . . . . . . . . . 32
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 32
U.S. Person . . . . . . . . . . . . . . . . . . . . . . 32
Vice President . . . . . . . . . . . . . . . . . . . . . 33
Voting Stock . . . . . . . . . . . . . . . . . . . . . . 34
Wholly Owned Restricted Subsidiary . . . . . . . . . . . 34
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . 34
SECTION 103. Form of Documents Delivered
to Trustee . . . . . . . . . . . . . . . . . . . . . 35
SECTION 104. Acts of Holders; Record Date . . . . . . . . . . . . . . 36
SECTION 105. Notices, Etc., to Trustee, Company
and Guarantors . . . . . . . . . . . . . . . . . . . 38
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 38
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 39
SECTION 108. Effect of Headings and
Table of Contents . . . . . . . . . . . . . . . . . . 40
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . 40
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 40
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 40
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally; Initial Forms
of Rule 144A and Regulation S Notes . . . . . . . . . 41
SECTION 202. Form of Face of Note . . . . . . . . . . . . . . . . . . 43
SECTION 203. Form of Reverse of Note . . . . . . . . . . . . . . . . 48
SECTION 204. Form of Trustee's
Certificate of Authentication . . . . . . . . . . . . 55
SECTION 205. Form Senior Subordinated Guarantee . . . . . . . . . . . 55
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . 61
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 62
SECTION 303. Execution, Authentication,
Delivery and Dating . . . . . . . . . . . . . . . . . 62
SECTION 304. Temporary Notes . . . . . . . . . . . . . . . . . . . . 64
SECTION 305. Global Notes . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 306. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . . . . . 67
SECTION 307. Mutilated, Destroyed,
Lost and Stolen Notes . . . . . . . . . . . . . . . . 73
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SECTION 308. Payment of Interest;
Interest Rights Preserved . . . . . . . . . . . . . . . 74
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 76
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . . . 77
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and
Discharge of Indenture . . . . . . . . . . . . . . . . . 78
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . 80
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . 80
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . . 83
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . 86
SECTION 505. Trustee May Enforce Claims
Without Possession of Notes . . . . . . . . . . . . . . . 87
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . 87
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . 88
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SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . 89
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . 90
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . 90
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . 90
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 91
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 91
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 92
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . . 92
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 93
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . 93
SECTION 604. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . 95
SECTION 605. May Hold Notes . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . 95
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . 96
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SECTION 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . 97
SECTION 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . 100
SECTION 613. Preferential Collection of
Claims Against Company . . . . . . . . . . . . . . . . . 100
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . 100
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . 101
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 102
SECTION 704. Reports by Company and the Guarantors . . . . . . . . . . . 102
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates . . . . . . . . . . . . . . . 102
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . 103
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . 104
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 104
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . 106
SECTION 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 108
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 108
SECTION 906. Reference in Notes to
Supplemental Indentures . . . . . . . . . . . . . . . 108
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 109
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 109
SECTION 1003. Money for Note Payments to
be Held in Trust . . . . . . . . . . . . . . . . . . . 110
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SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . 112
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . 113
SECTION 1007. Maintenance of Insurance . . . . . . . . . . . . . . . . 113
SECTION 1008. Limitation on Consolidated Debt . . . . . . . . . . . . 114
SECTION 1009. Limitation on Senior Subordinated Debt . . . . . . . . . 118
SECTION 1010. Limitation on Issuance of
Guarantees of Subordinated Debt . . . . . . . . . . . . 118
SECTION 1011. Limitation on Liens . . . . . . . . . . . . . . . . . . 118
SECTION 1012. Limitation on Restricted Payments . . . . . . . . . . . 121
SECTION 1013. Limitations on Dividends
and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . 124
SECTION 1014. Limitation on Asset Disposition . . . . . . . . . . . . 125
SECTION 1015. Transactions with Affiliates and
Related Persons . . . . . . . . . . . . . . . . . . . . 126
SECTION 1016. Change of Control . . . . . . . . . . . . . . . . . . . 127
SECTION 1017. Provision of Financial Information . . . . . . . . . . . 128
SECTION 1018. Unrestricted Securities . . . . . . . . . . . . . . . . 129
SECTION 1019. Statement by Officers as to
Default; Compliance Certificates . . . . . . . . . . . 130
SECTION 1020. Waiver of Certain Covenants . . . . . . . . . . . . . . 130
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ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . . . . 131
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . 132
SECTION 1103. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . . . . . . . . . . . 132
SECTION 1104. Selection by Trustee of
Notes to Be Redeemed . . . . . . . . . . . . . . . . . 133
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . 133
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . 134
SECTION 1107. Notes Payable on Redemption Date . . . . . . . . . . . . 135
SECTION 1108. Notes Redeemed in Part . . . . . . . . . . . . . . . . . 135
ARTICLE TWELVE
Senior Subordinated Guarantee
SECTION 1201. Senior Subordinated Guarantee . . . . . . . . . . . . . 136
SECTION 1202. Execution and Delivery
of Senior Subordinated Guarantee . . . . . . . . . . . . 140
SECTION 1203. Subsidiary Guarantors
May Consolidate, Etc. on Certain Terms . . . . . . . . . 141
SECTION 1204. Release of Guarantors . . . . . . . . . . . . . . . . . 142
SECTION 1205. Additional Guarantors . . . . . . . . . . . . . . . . . 143
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ARTICLE THIRTEEN
Subordination of Notes and Senior Subordinated Guarantees
SECTION 1301. Notes Subordinate to Senior Debt . . . . . . . . . . . . 144
SECTION 1302. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . 144
SECTION 1303. No Payment When Senior
Debt in Default . . . . . . . . . . . . . . . . . . . 147
SECTION 1304. Payment Permitted If No Default . . . . . . . . . . . . 150
SECTION 1305. Subrogation to Rights of Holders
of Senior Debt . . . . . . . . . . . . . . . . . . . . 151
SECTION 1306. Provisions Solely to Define
Relative Rights . . . . . . . . . . . . . . . . . . . 152
SECTION 1307. Trustee to Effectuate
Subordination . . . . . . . . . . . . . . . . . . . . 152
SECTION 1308. No Waiver of Subordination
Provisions . . . . . . . . . . . . . . . . . . . . . . 153
SECTION 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . . 153
SECTION 1310. Reliance on Judicial Order or
Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . 154
SECTION 1311. Trustee Not Fiduciary for Holders
of Senior Debt . . . . . . . . . . . . . . . . . . . . 155
SECTION 1312. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . 155
SECTION 1313. Article Applicable to Paying
Agents . . . . . . . . . . . . . . . . . . . . . . . . 156
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----
SECTION 1314. Defeasance of this Article
Twelve . . . . . . . . . . . . . . . . . . . . . . . . 156
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option to Effect
Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . 156
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . 157
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . 157
SECTION 1404. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . 158
SECTION 1405. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . 163
SECTION 1406. Reinstatement . . . . . . . . . . . . . . . . . . . . . 164
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 165
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . 165
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 167
-xv-
17
INDENTURE, dated as of August 7, 1997, between Hollywood Theaters,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 0000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, each of the Guarantors (as
hereinafter defined) and U.S. Trust Company of Texas, N.A., a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of its 10
5/8% Senior Subordinated Notes due August 1, 2007 (the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
Hollywood Theater Holdings, Inc. ("Holdings") owns beneficially and of
record 100% of the Capital Stock of the Company; the Company, directly or
indirectly, owns beneficially and of record 100% of the Capital Stock or other
ownership interests, as the case may be, of Crown Theatre Corporation
("Crown"); Holdings, the Company and Crown are members of the same consolidated
group of companies and are engaged in related businesses and Holdings and
Crown, as Guarantors, will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each of the Guarantors has duly
authorized the execution and delivery of this Indenture to provide for its
Senior Subordinated Guarantees with respect to the Securities as set forth in
this Indenture.
All things necessary (i) to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Senior
Subordinated Guarantees of each of the Guarantors, when executed by the
respective Guarantors and endorsed on the Securities executed, authenticated
and delivered hereunder, the valid obligations of the respective Guarantors,
and
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(iii) to make this Indenture a valid agreement of the Company and each of the
Guarantors, all in accordance with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted as consistently applied by the Company at the date of such
computation;
-2-
19
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Debt" of any particular Person means Debt of any other
Person existing at the time such other Person merged with or into or became a
Subsidiary of such particular Person or assumed by such particular Person in
connection with the acquisition of assets from any other Person, and not
Incurred by such other Person in connection with, or in contemplation of, such
other Person merging with or into such particular Person or becoming a
Subsidiary of such particular Person or such acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the
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20
Depositary, Euroclear or Cedel, for such Note, in each case to the extent
applicable to such transaction and as in effect at the time of such transfer or
transaction.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including any issuance or sale by a Restricted Subsidiary of
Capital Stock of such Restricted Subsidiary, and including a consolidation or
merger or other sale of any such Restricted Subsidiary with, into or to another
Person in a transaction in which such Restricted Subsidiary ceases to be a
Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary
of such Person to such Person or a Wholly Owned Restricted Subsidiary of such
Person or by such Person to a Wholly Owned Restricted Subsidiary of such
Person) of (i) shares of Capital Stock (other than directors' qualifying
shares) or other ownership interests of a Restricted Subsidiary of such Person,
(ii) substantially all of the assets of such Person or any of its Restricted
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Restricted Subsidiaries outside of the
ordinary course of business, provided in each case that the aggregate
consideration for such transfer, conveyance, sale, lease or other disposition
is equal to $1.0 million or more. The term "Asset Disposition" shall not
include (i) any sale and leaseback of Qualifying Theater Assets effected at
fair market value, and (ii) any swap or exchange of Qualifying Theater Assets
of the Company or its Subsidiaries for Qualifying Theater Assets of another
Person, provided that if the fair market value of the assets exchanged by the
Company or its Subsidiary exceeds the fair market value of the assets to be
received, in each case as determined in good faith by the Board of Directors of
the Company, such excess shall be subject to Section 1014 hereof.
"Board of Directors" means either the board of directors of the
Company or any Guarantor or any duly authorized committee of that board.
Except as otherwise provided or unless context otherwise requires, each
reference herein to the "Board of Directors" shall mean the Board of Directors
of the Company.
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21
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or any Guarantor 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. Except as
otherwise expressly provided or unless the context otherwise requires, each
reference herein to a "Board Resolution" shall mean a Board Resolution of the
Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
or in the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability
on the face of a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation shall
be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty. The principal amount of such obligation
shall be the capitalized amount thereof that would appear on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general
or limited, of such Person.
"Cash Equivalents" means (i) direct obligations of the United States
of America or any agency thereof having maturities of not more than one year
from the date of acquisition, (ii) time deposits and certificates of deposit of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500 million, with
-5-
22
maturities of not more than one year from the date of acquisition, (iii)
repurchase obligations issued by any bank described in clause (ii) above with a
term not to exceed 30 days; (iv) commercial paper rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's,
in each case maturing within one year after the date of acquisition and (v)
shares of any money market mutual fund, or similar fund, in each case having
excess of $500 million, which invests predominantly in investments of the types
describes in clauses (i) through (iv) above.
"Cedel" means Cedel, S.A. (or any successor securities clearing
agency).
"Closing Date" means August 7, 1997.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
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23
Secretary or an Assistant Secretary and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means for any
period the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period increased by the sum of (i) Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for such period, plus
(ii) Consolidated Income Tax Expense of the Company and its Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of the Company and its
Restricted Subsidiaries for such period, plus (iv) all other non-cash items
reducing Consolidated Net Income of the Company and its Restricted
Subsidiaries, less all non-cash items increasing Consolidated Net Income of the
Company and its Restricted Subsidiaries; provided, however, that there shall be
excluded therefrom the Consolidated Cash Flow Available for Fixed Charges (if
positive) of any Restricted Subsidiary of the Company (calculated separately
for such Restricted Subsidiary in the same manner as provided above for the
Company) that is subject to a restriction which prevents the payment of
dividends or the making of distributions to the Company or another Restricted
Subsidiary of the Company to the extent of such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any date of
determination means the ratio of (i) Consolidated Cash Flow Available for Fixed
Charges of the Company and its Restricted Subsidiaries for the period of the
most recently completed four consecutive fiscal quarters for which quarterly or
annual financial statements are available to (ii) Consolidated Fixed Charges of
the Company and its Restricted Subsidiaries for such period; provided, however,
that Consolidated Fixed Charges shall be adjusted to give effect on a pro forma
basis to any Debt that has been Incurred by the Company or any Restricted
Subsidiary since the beginning of such period that remains outstanding and to
any Debt that is proposed to be Incurred by the Company or any Restricted
Subsidiary as if in each case such Debt had been Incurred on the first day of
such period and as if any Debt that (i) is or will no longer be outstanding as
the result of the Incurrence of any such Debt or (ii) had been
-7-
24
repaid or retired during such period had not been outstanding as of the first
day of such period; provided, however, that in making such computation, the
Consolidated Interest Expense of the Company and its Restricted Subsidiaries
attributable to interest on any proposed Debt bearing a floating interest rate
shall be computed on a pro forma basis as if the rate in effect on the date of
computation had been the applicable rate for the entire period; and provided
further that, in the event the Company or any of its Restricted Subsidiaries
has made Asset Dispositions or acquisitions of assets not in the ordinary
course of business (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) during or after such period, such
computation shall be made on a pro forma basis as if the Asset Dispositions or
acquisitions had taken place on the first day of such period.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (without deduction
of interest income) of the Company and its Restricted Subsidiaries for such
period calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities; (iii) fees with respect to interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements; (iv) Preferred Stock dividends of
-8-
25
Restricted Subsidiaries of the Company (other than with respect to Redeemable
Stock) declared and paid or payable to persons other than the Company or any
Restricted Subsidiary; (v) accrued Redeemable Stock dividends of the Company
and its Restricted Subsidiaries payable to persons other than the Company or
any Restricted Subsidiary, whether or not declared or paid; (vi) interest on
Debt guaranteed by the Company and its Restricted Subsidiaries; and (vii) the
portion of any rental obligation allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary of the Company in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Subsidiary of the Company except to the extent of the
amount of dividends or other distributions actually paid to the Company or a
Subsidiary of the Company by such Person during such period, (c) gains or
losses on Asset Dispositions by the Company or its Restricted Subsidiaries, (d)
all extraordinary gains and extraordinary losses, (e) the cumulative effect of
changes in accounting principles and (f) the tax effect of any of the items
described in clauses (a) through (e) above; provided, further, that for
purposes of any determination pursuant to the provisions described under
Section 1012 hereof, there shall further be excluded therefrom the net income
(but not net loss) of any Restricted Subsidiary of the Company that is subject
to a restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary of the Company to
the extent of such restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect
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26
to the Company, adjustments following the date of this Indenture to the
accounting books and records of the Company in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Company by another
Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person means, as of any date,
the amount which, in accordance with GAAP, would be set forth under the caption
"Total Assets" (or any like caption) on a consolidated balance sheet of such
Person and its Restricted Subsidiaries, less all intangible assets, including,
without limitation, goodwill, organization costs, patents, trademarks,
copyrights, franchises, and research and development costs.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which is, at the date as of which this Indenture is dated,
located at Xxxxx 0000, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
"corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Crown" means Crown Theatre Corporation or any successor thereto.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not
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27
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) all Receivables Sales of such Person, together
with any obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, (vii) all Redeemable Stock issued by such Person, (viii) Preferred
Stock of Restricted Subsidiaries of such Person held by Persons other than such
Person or one of its Wholly Owned Restricted Subsidiaries, (ix) every
obligation under Interest Rate, Currency or Commodity Price Agreements of such
Person and (x) every obligation of the type referred to in clauses (i) through
(ix) of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed or is responsible or liable,
directly or indirectly, as obligor, Guarantor or otherwise. The "amount" or
"principal amount" of Debt at any time of determination as used herein
represented by (a) any Receivables Sale, shall be the amount of the unrecovered
capital or principal investment of the purchaser (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) thereof, excluding amounts
representative of yield or interest earned on such investment and (b) any
Redeemable Stock, shall be the maximum fixed redemption or repurchase price in
respect thereof.
"Depositary" means, with respect to any Notes, a clearing agency that
is registered as such under the Exchange Act and is designated by the Company
to act as Depositary for such Notes (or any successor securities clearing
agency so registered).
"Designated Senior Debt" shall mean (i) the obligations of the Company
under the New Senior Bank Facility and (ii) any other Senior Debt of the
Company permitted under the Indenture the principal amount of which at original
issuance is $25.0 million or more and that has been designated by the Company
as Designated Senior Debt.
"DTC" means The Depository Trust Company, a New York corporation.
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28
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of August 7, 1997, among the Company,
Xxxxxxx, Sachs & Co. and BancAmerica Securities, Inc., as representatives of
the Initial Purchasers, and the Holders from time to time as provided therein,
as such agreement may be amended from time to time.
"Exchange Offer" means an offer made by the Company pursuant to the
Exchange and Registration Rights Agreement under the effective registration
statement under the Securities Act to exchange securities substantially
identical to Outstanding Notes (except for the differences provided for herein)
for Outstanding Notes.
"Exchange Registration Statement" means a registration statement of
the Company under the Securities Act registering Exchange Notes for
distribution pursuant to the Exchange Offer.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Exchange Notes" means the Notes issued pursuant to the Exchange Offer
and their Successor Notes.
"Global Note" means a Note that is registered in the Security Register
in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or
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29
advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Debt, (ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor"
shall have meanings correlative to the foregoing); provided, however, that the
Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business.
"Guarantor Designated Senior Debt" shall mean (i) the obligations of
the Guarantor under the New Senior Bank Facility and (ii) any other Guarantor
Senior Debt of the Guarantor permitted under the Indenture the principal amount
of which at original issue is $25.0 million or more and that has been
designated by each Guarantor as Guarantor Designated Senior Debt.
"Guarantor Senior Debt" means (i) the principal of (and premium, if
any) and interest on Debt of the Guarantor for money borrowed, whether incurred
on or prior to the date of original issuance of the Notes or thereafter, and
any amendments, renewals, extensions, modifications, refinancings and
refundings of any such Debt and (ii) Permitted Interest Rate Agreements and
Permitted Currency Agreements entered into with respect to Debt described in
clause (i) above; provided, however, that the following shall not constitute
Guarantor Senior Debt: (1) any Debt as to which the terms of the instrument
creating or evidencing the same provide that such Debt is not superior in right
of payment to the applicable Senior Subordinated Guarantee, (2) any Debt which
is subordinated in right of payment in any respect to any other Debt of the
Company, (3) any Debt owed to a Person when such Person is a Subsidiary of the
Company, (4) that portion of any Debt which is Incurred in violation of the
Indenture and (5) Debt which, when Incurred and without respect to any election
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30
under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to
such Guarantor.
"Guarantors" means Holdings and the Subsidiary Guarantors.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Holdings" means Hollywood Theater Holdings, Inc. or any successor
thereto.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall
not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means Xxxxxxx, Xxxxx & Co. and BancAmerica
Securities, Inc., as purchasers of the Notes from the Company pursuant to the
Note Purchase Agreement.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
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31
"Interest Rate, Currency or Commodity Price Agreement" of any Person
means any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course
of business).
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution to (by means of transfers
of cash or other property to others or payments for property or services for
the account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by any other Person, including any payment on a Guarantee of any
obligation of such other Person.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Moodys" means Xxxxx'x Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting
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32
of a note, installment receivable or other receivable, but excluding any other
consideration received in the form of assumption by the acquiree of Debt or
other obligations relating to such properties or assets) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred and all federal, state, provincial, foreign
and local taxes required to be accrued as a liability as a consequence of such
Asset Disposition, (ii) all payments made by such Person or its Restricted
Subsidiaries on any Debt which is secured by such assets in accordance with the
terms of any Lien upon or with respect to such assets or which must by the
terms of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person or joint ventures as
a result of such Asset Disposition and (iv) appropriate amounts to be provided
by such Person or any Restricted Subsidiary thereof, as the case may be, as a
reserve in accordance with generally accepted accounting principles against any
liabilities associated with such assets and retained by such Person or any
Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, in each case as determined by the Board
of Directors, in its reasonable good faith judgment evidenced by a resolution
of the Board of Directors filed with the Trustee; provided, however, that any
reduction in such reserve following the consummation of such Asset Disposition
will be treated for all purposes of the Indenture and the Notes as a new Asset
Disposition at the time of such reduction with Net Available Proceeds equal to
the amount of such reduction.
"New Senior Bank Facility" means Reducing Revolving Credit Agreement
between the Company and certain of its affiliates and Bank of America NT&SA, as
agent, and the banks named therein, as it may be amended or restated from time
to time, and any renewal, extension, refinancing, refunding or replacement
thereof.
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"Note Purchase Agreement" means the Purchase Agreement, dated as of
July 31, 1997, between the Company and the Initial Purchasers, Crown and
Holdings, as such agreement may be amended from time to time.
"Notes" means notes designated in the first paragraph of the RECITALS
OF THE COMPANY.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Note Register on the date of the Offer offering to purchase up
to the principal amount of Notes specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration
date (the "Expiration Date") of the Offer to Purchase which shall be, subject
to any contrary requirements of applicable law, not less than 30 days or more
than 60 days after the date of such Offer and a settlement date (the "Purchase
Date") for purchase of Notes within five Business Days after the Expiration
Date. The Company shall notify the Trustee at least 15 Business Days (or such
shorter period as is acceptable to the Trustee) prior to the mailing of the
Offer of the Company's obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Restricted
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 documents required to be filed with the
Trustee pursuant to Section 1017 (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 pro
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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 Notes pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered to
be purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such has been determined pursuant to
the Section hereof requiring the Offer to Purchase) (the "Purchase
Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
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(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer
to Purchase will be required to surrender such Note at the place or places
specified in the Offer prior to the close of business on the Expiration
Date (such Note being, if the Company or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or their Paying Agent) receives, not later
than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder tendered, the certificate number of
the Note the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and (b)
if Notes in an aggregate principal amount in excess of the Purchase Amount
are tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased); and
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(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or
any Guarantor, and delivered to the Trustee. Unless the context otherwise
requires, each reference herein to an "Officers' Certificate" shall mean an
Officers' Certificate of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who is reasonably acceptable to the Trustee.
"Original Notes" means all Notes other than Exchange Notes.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture (including any Note represented by a Global Note), except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or a Guarantor) in trust or set aside and
segregated in trust by the
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Company (if the Company shall act as its own Paying Agent) for the Holders
of such Notes; provided that, if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Parent Guarantee" means the unconditional guarantee, on a senior
subordinated basis, by Holdings of the due and punctual payment of principal
(premium, if any,) and interest on the Notes, as provided pursuant to Article
Twelve.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Holder" means each of The Beacon Group III - Focus Value
Fund, L.P., Stratford Capital Partners, L.P., Xxxx Communications Fund and
members of senior management of Holdings which have been such members for at
least one year and beneficially own (withing the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision thereto) shares of Capital Stock
of Holdings.
"Permitted Interest Rate, Currency or Commodity Price Agreement" of
any Person means any Interest Rate, Currency or Commodity Price Agreement
entered into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations in
interest rates or currency exchange rates with respect to Debt Incurred and
which shall have a notional amount no greater than the payments due with
respect to the Debt being hedged thereby, or in the case of currency or
commodity protection agreements, against currency exchange rate or commodity
price fluctuations in the ordinary course of business relating to then existing
financial obligations or then existing or sold production and not for purposes
of speculation.
"Permitted Investments" means (i) an Investment in the Company or a
Restricted Subsidiary of the Company; (ii) an Investment in a Person, if such
Person or a Subsidiary of such Person will, as a result of the making of such
Investment and all other contemporaneous related transactions, become a
Restricted Subsidiary of the Company or be merged or consolidated with or into
transfer or convey all or substantially all its assets to the Company or a
Restricted Subsidiary of the Company; (iii) a Temporary Cash Investment; (iv)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses in accordance with
generally accepted accounting principles; (v) stock, obligations or securities
received in settlement of debts owing to the Company or a Restricted Subsidiary
of the Company as a result of bankruptcy or insolvency proceedings
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or upon the foreclosure, perfection, enforcement or agreement in lieu of
foreclosure of any Lien in favor of the Company or a Restricted Subsidiary of
the Company; (vi) refundable construction advances made with respect to the
construction of properties of a nature or type that are used in a business or
similar or related to the business of the Company or its Restricted
Subsidiaries in the ordinary course of business; (vii) advances or extensions
of credit on terms customary in the industry in the form of accounts or other
receivables incurred, or pre-paid film rentals, and loans and advances made in
settlement of such accounts receivable, all in the ordinary course of business;
(viii) Investments in the Notes; (ix) any consolidation or merger of a
Wholly-Owned Restricted Subsidiary of the Company to the extent otherwise
permitted under the Indenture; (x) Investments in Permitted Interest Rate
Currency or Commodity Price Agreements and (xi) other Investments not to exceed
$3.0 million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock", of any Person, means Capital Stock of such Person
of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Company or
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(if Holdings owns all the outstanding Common Stock of the Company) of Holdings
pursuant to an effective registration statement under the Securities Act of
1933, as amended.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the 15th of January or the 15th of July (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Purchase Date", when used with respect to any offer to Purchase,
means the date fixed for such purchase by or pursuant to this Indenture.
"Qualifying Theater Assets" means all motion picture theaters (whether
owned in fee or leased), all other motion picture theater assets, including,
without limitation, theater furniture and fixtures, all real property acquired
for the purpose of motion picture theater development or construction, and
joint venture interests or partnership interests in Persons owning, leasing,
developing or constructing motion picture theaters or principally engaged in
the business of exhibiting motion pictures.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto
or a disposition of defaulted Receivables for purposes of collection and not as
a financing arrangement.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Redeemable Stock" of any Person means any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon the
occurrence of an event) matures or is required to be redeemed (pursuant to
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any sinking fund obligation or otherwise) or is convertible into or
exchangeable for Debt or is redeemable at the option of the holder thereof, in
whole or in part, at any time prior to the final Stated Maturity of the Notes;
provided that "Redeemable Stock" shall not include any Capital Stock that is
payable at maturity, or upon required redemption or redemption at the option of
the holder thereof, or that is automatically convertible or exchangeable,
solely in or into Common Stock of such Person.
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Registration Default" means that (i) the Company has not filed the
registration statement relating to the Exchange Offer (or, if applicable, the
Resale Registration) within 60 days following the Closing or (ii) such
registration statement has not become effective within 180 days following the
Closing or (iii) the Exchange Offer has not been consummated within 30 business
days after the effective date of the Exchange Offer Registration Statement or
(iv) any registration statement required by the Registration Rights Agreement
is filed and declared effective but shall thereafter cease to be effective
(except as specifically permitted therein) without being succeeded immediately
by an additional registration statement filed and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Note" has the meaning specified in Section 201.
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"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Note set forth in Section 202 to be placed upon
Regulation S Notes.
"Regulation S Notes" means all Notes required pursuant to Section
306(c) to bear a Regulation S Legend.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the Outstanding Common Stock of such Person
(or in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined voting power of the
Voting Stock of such Person.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller 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 Period" means the period of 40 consecutive days beginning
on the later of (i) the day on which Notes are first offered to persons other
than distributors (as defined in Regulation S) in reliance on Regulation S and
(ii) the Closing Date.
"Restricted Notes" means all Notes required pursuant to Section 306(c)
to bear a Restricted Notes Legend. Such term includes the Restricted Global
Notes.
"Restricted Notes Certificate" means a certificate substantially in
for form set forth in Annex B.
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"Restricted Notes Legend" means a legend substantially in the form of
the legend required in the form of Note set forth in Section 202 to be placed
upon a Restricted Note.
"Restricted Subsidiary" means any Subsidiary, whether existing on or
after the date of this Indenture, unless such Subsidiary is an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means the Notes purchased by the Initial Purchasers
from the Company pursuant to the Note Purchase Agreement, other than the
Regulation S Notes.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Securities Act" means the Securities Act of 1933, as it may be
amended and any successor act thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306(a).
"Senior Debt" means (i) the principal of (and premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, the New Senior Bank Facility and (ii) the principal of (and
premium, if any) and interest on Debt of the Company for money borrowed,
whether Incurred on or prior to the date of original issuance of the Notes or
thereafter, and any amendments, renewals, extensions, modifications,
refinancings and refundings of any such Debt and (iii) Permitted Interest Rate
Agreements and Permitted Currency Agreements entered into with respect to Debt
described in clauses (i)
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and (ii) above; provided, however, that the following shall not constitute
Senior Debt: (1) any Debt as to which the terms of the instrument creating or
evidencing the same provide that such Debt is not superior in right of payment
to the Notes, (2) any Debt which is subordinated in right of payment in any
respect to any other Debt of the Company, (3) Debt evidenced by the Notes, (4)
any Debt owed to a Person when such Person is a Subsidiary of the Company, (5)
any obligation of the Company arising from Redeemable Stock of the Company, (6)
that portion of any Debt which is Incurred in violation of the Indenture and
(7) Debt which, when Incurred and without respect to any election under Section
1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to the Company.
"Senior Subordinated Guarantees" means the Parent Guarantee and the
Subsidiary Guarantees.
"Shelf Registration Statement" means a shelf registration statement
under the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Notes for resale.
"Special Interest Payments" has the meaning specified in the form of
Notes set forth in Section 202.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment
in full of the Notes to at least the following extent: (i) no payments of
principal of (or premium, if any) or interest on
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or otherwise due in respect of such Debt may be permitted for so long as any
default in the payment of principal (or premium, if any) or interest on the
Notes exists; (ii) in the event that any other default that with the passing of
time or the giving of notice, or both, would constitute an event of default
exists with respect to the Notes, upon notice by 25% or more in principal
amount of the Notes to the Trustee, the Trustee shall have the right to give
notice to the Company and the holders of such Debt (or trustees or agents
therefor) of a payment blockage, and thereafter no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
made for a period of 179 days from the date of such notice; and (iii) such Debt
may not (x) provide for payments of principal of such Debt at the stated
maturity thereof or by way of a sinking fund applicable thereto or by way of
any mandatory redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by virtue
of acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Notes or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such other Debt at the option of the holder thereof prior to the
final Stated Maturity of the Notes, other than a redemption or other retirement
at the option of the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change of control of
the Company pursuant to provisions substantially similar to those contained in
Section 1016 hereof (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the Company's repurchase of
the Notes required to be repurchased by the Company pursuant to the provisions
described under Section 1016).
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other
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than a corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof, directly
or indirectly, has at least a majority ownership and power to direct the
policies, management and affairs thereof.
"Subsidiary Guarantees" means the unconditional guarantees on a senior
subordinated basis by the respective Subsidiary Guarantors of the due and
punctual payment of principal, premium, if any, and interest on the Notes as
provided pursuant to Article Twelve.
"Subsidiary Guarantors", as of any time, each and all of the
Restricted Subsidiaries at such time, and as of the date of this Indenture
means Crown.
"Successor Note" of any particular Note means every Note issued after,
and evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment in the following
kinds of instruments: (A) readily marketable obligations issued or
unconditionally guaranteed as to principal and interest by the United States of
America or by any agency or authority controlled or supervised by and acting as
an instrumentality of the United States of America if, on the date of purchase
or other acquisition of any such instrument by the Company or any Restricted
Subsidiary of the Company, the remaining term to maturity or interest rate
adjustment is not more than two years; (B) obligations (including, but not
limited to, demand or time deposits, bankers' acceptances and certificates of
deposit) issued or guaranteed by a depository institution or trust company
incorporated under the laws of the United States of America, any state thereof
or the District of Columbia, provided that (1) such instrument has a final
maturity not more than one year from the date of purchase thereof by the
Company or any Restricted Subsidiary of the
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Company and (2) such depository institution or trust company has at the time of
the Company's or such Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment, (x) capital, surplus and undivided
profits (as of the date such institution's most recently published financial
statements) in excess of $100 million and (y) the long-term unsecured debt
obligations (other than such obligations rated on the basis of the credit of a
Person other than such institution) of such institution, at the time of the
Company's or such Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment, are rated in the highest rating
category of both S&P and Moodys; (C) commercial paper issued by any
corporation, if such commercial paper has, at the time of the Company's or any
Restricted Subsidiary's Investment therein or contractual commitment providing
for such Investment credit ratings of at least A-1 by S&P and P-1 by Moody's;
(D) money market mutual or similar funds having assets in excess of $100
million; (E) readily marketable debt obligations issued by any corporation, if
at the time of the Company's or Restricted Subsidiary's Investment therein or
contractual commitment providing for such Investment (1) the remaining term to
maturity is not more than two years and (2) such debt obligations are rated in
one of the two highest rating categories of both S&P and Moody's; (F) demand or
time deposit accounts used in the ordinary course of business with commercial
banks the balances in which are at all times fully insured as to principal and
interest by the Federal Deposit Insurance Corporation or any successor thereto;
and (G) to the extent not otherwise included herein, Cash Equivalents. In the
event that either S&P or Moody's ceases to publish ratings of the type provided
herein, a replacement rating agency shall be selected by the Company with the
consent of the Trustee, and in each case the rating of such replacement rating
agency most nearly equivalent to the corresponding S&P or Xxxxx'x rating, as
the case may be, shall be used for purposes hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act
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of 1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Person" means (i) any individual resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of
the United States, (iii) any estate of which an executor or administrator is a
U.S. Person (other than an estate governed by foreign law and of which at least
one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. Person (other than a trust of which at least one trustee is
a non-U.S. Person who has sole or shared investment discretion with respect to
its assets and no beneficiary of the trust (and no settlor if the Trust is
revocable) is a U.S. Person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. Person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the
meaning of Rule 501(a) under the Securities Act who are not natural persons,
estates or trusts); provided, however, that the term "U.S. Person" does not
include (A) a branch or agency of a U.S. Person that is located and operating
outside the United States for valid business purposes as a locally regulated
branch or agency engaged in the banking or insurance business, (B) any
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employee benefit plan established and administered in accordance with the law,
customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S
under the Securities Act and any other similar international organizations, and
their agencies, affiliates and pension plans.
"Vice President", when used with respect to the Company, any Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the
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exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion is based are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the
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action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any
such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may
be. With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or
vote on, the relevant action.
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(d) The ownership of Notes shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind
every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reli ance
thereon, whether or not notation of such action is made upon such
Note.
SECTION 105. Notices, Etc., to Trustee, Company and Guarantors.
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 or any Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust, or
(2) the Company or any Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, then the Trust Indenture Act shall
control. Whether or not this Indenture is required to be qualified under the
Trust Indenture Act, the provisions of the Trust Indenture Act required to be
included in an indenture in order for such indenture to be so qualified shall
be deemed to be included in this Indenture with the same effect as if such
provisions
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were set forth herein and any provisions hereof which may not be included in an
indenture which is so qualified shall be deemed to be deleted or modified to
the extent such provisions would be required to be deleted or modified in an
indenture so qualified.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or any
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Notes or the Senior
Subordinated Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes or the Senior Subordinated
Guarantees, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior Debt
(subject to Article Twelve hereof) and the Holders of Notes, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
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SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE NOTES AND THE SENIOR SUBORDINATED GUARANTEES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes or any
Senior Subordinated Guarantee) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, or Purchase Date, or at the Stated Maturity, as the case may be, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Purchase Date or Stated Maturity, as the case
may be.
ARTICLE TWO
Note and Senior Subordinated Guarantee Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S
Notes.
The Notes, the Senior Subordinated Guarantees and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes or Senior Subordinated Guarantees, as evidenced
by their execution of the Notes.
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The definitive Notes and Senior Subordinated Guarantees to be endorsed
thereon shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes or
Senior Subordinated Guarantees, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes shall be issued in the
form of one or more Global Notes without interest coupons registered in the
name of DTC, as Depositary, or its nominee and deposited with the Trustee, as
custodian for DTC, at its Corporate Trust Office, for credit by DTC to the
respective accounts of beneficial owners of the Notes represented thereby (or
such other accounts as they may direct). Such Global Notes, together with
their Successor Notes which are Global Notes other than the Restricted Global
Note are collectively herein called the "Regulation S Global Note".
Upon their original issuance, Regulation S Notes (herein called the
"Regulation S Temporary Global Note") shall be issued in the form of a single
temporary Global Note without coupons registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee at its Corporate
Trust Office, as custodian for DTC, for credit to Xxxxxx Guaranty Trust
Company of New York, Brussels Office, as operator of the Euroclear, and Cedel
to the respective accounts of beneficial owners of the Notes represented
thereby (or such other accounts as they may direct) in accordance with the
rules thereof.
Beneficial interests in the Regulation S Temporary Global Note may
only be held through Euroclear and Cedel until such interests are exchanged for
corresponding interests in an unrestricted Global Note as provided in the next
sentence. A holder of a beneficial interest in the Regulation S Temporary
Global Note must provide written certification to Euroclear or CEDEL, as the
case may be, that the beneficial owner of the interest in such Global Note is
not a U.S. Person (an "Owner Securities Certification"), and Euroclear or
CEDEL, as the case may be,
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must provide to the Trustee a similar certificate in the form set form in Annex
C (a "Depositary Securities Certification"), prior to (i) the payment of
interest with respect to such holder's beneficial interest in the Regulation S
Temporary Global Note and (ii) any exchange of such beneficial interest for a
beneficial interest in the Regulation S Global Note.
SECTION 202. Form of Face of Note.
[IF THE NOTE IS A RESTRICTED NOTE, THEN INSERT -- THE NOTES EVIDENCED
HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (4) TO INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL OTHER APPLICABLE SECURITIES LAWS.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER UNLESS THE
REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON TRANSFER SET
FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF
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A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND THE DEPOSITORY TRUST COMPANY IS TO
BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF THE NOTE IS A REGULATION S NOTE, THEN INSERT -- THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 , AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OF BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[IF THE NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE, THEN INSERT
--THIS NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON PRIOR TO THE EXPIRATION
OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE) EXCEPT IN CERTAIN
LIMITED CIRCUMSTANCES IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
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HOLLYWOOD THEATERS, INC.
10 5/8% SENIOR SUBORDINATED NOTES DUE 2007
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY HOLLYWOOD
THEATER HOLDINGS, INC. AND CERTAIN
SUBSIDIARIES OF HOLLYWOOD THEATERS, INC.
[If Restricted Global Note - CUSIP No. 00000XXX0]
[If Regulation S Temporary Global Note - CUSIP No. [X0000XXX0]
[If Regulation S Global Note - ISIN No. [____________]]
No. __________ $________
Hollywood Theaters, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________, or registered assigns,
the principal sum of ______________ Dollars (such amount the "principal amount"
of this Note) [IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- , or such other
principal amount (which, when taken together with the principal amounts of all
other Outstanding Notes, shall not exceed $110,000,000 in the aggregate at any
time) as may be set forth in the records of the Trustee hereinafter referred to
in accordance with the Indenture,] on August 1, 2007 (subject to earlier
redemption at the option of the Company) and to pay interest thereon from
August 7, 1997, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on February 1 and August 1 in
each year, commencing February 1, 1998, at the rate of 10.625% per annum, until
the principal hereof is paid or made available for payment; provided that, if
any Registration Default occurs under the Exchange and Registration Rights
Agreement, then the per annum interest rate on the Notes will increase for the
period from the occurrence of the Registration Default until such time as no
Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate) at a per annum rate of 0.5% for the first 90-day
period following the occurrence of such Registration Default, and by an
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additional 0.5% thereafter (up to a maximum of 1.0%), and provided, further,
that any amount of interest on this Note which is overdue shall bear interest
(to the extent that payment thereof shall be legally enforceable) at the rate
per annum then borne by this Note from the date such amount is due to the day
it is paid or made available for payment, and such overdue interest shall be
payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the January 15 or July 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date [IF THE NOTE IS AN ORIGINAL
NOTE, THEN INSERT --, provided that any accrued and unpaid interest (including
Special Interest Payments) on this Note upon the issuance of an Exchange Note
in exchange for this Note shall cease to be payable to the Holder hereof and
shall be payable on the next Interest Payment Date for such Exchange Note to
the Holder thereof on the related Regular Record Date]. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on the relevant Regular Record Date and may either be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Interest on this Note shall be computed on the
basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Note will be made at the office or agency of the Company in
the Borough of Manhattan, The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Company
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for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register; provided further that all payments
of the principal (and premium, if any) and interest on Notes, the Holders of
which have given wire transfer instructions to the Company or its agent at
least 10 Business Days prior to the applicable payment date will be required to
be made by wire transfer of immediately available funds to the accounts
specified by such Holders in such instructions. Notwithstanding the foregoing,
the final payment of principal shall be payable only upon surrender of this
Note to the Paying Agent.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HOLLYWOOD THEATERS, INC.
[SEAL]
By
-----------------------------------
Attest:
------------------------------
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10 5/8% Senior Subordinated Notes due August 1, 2007 (herein
called the "Notes"), limited in aggregate principal amount to $110,000,000,
issued and to be issued under an Indenture, dated as of August 7, 1997 (herein
called the "Indenture", which term shall have the meaning assigned to it in
such instrument), among the Company, the Guarantors named therein and U.S.
Trust Company of Texas, N.A., as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which the
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantors, the Trustee and the
Holders of the Notes and of the terms upon which the Notes with the Senior
Subordinated Guarantees endorsed thereon, are, and are to be, authenticated and
delivered.
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The Notes will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after August 1, 2002 and prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Security Register, in amounts of $1,000 or an integral multiple of $1,000, at
the following Redemption Prices (expressed as percentages of the principal
amount) plus accrued interest to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period beginning August 1 of the years
indicated:
Redemption
Year Price
---- ----------
2002 ............................... 105.312%
2003 ............................... 103.542%
2004 ............................... 101.771%
2005 and thereafter ................ 100.000%
In addition, if on or before August 1, 2000 the Company receives
net proceeds from the sale of its Common Stock or the Common Stock of Holdings
in one or more Public Equity Offerings, the Company may, at its option use an
amount equal to all or a portion of any such net proceeds to redeem Notes in an
aggregate principal amount of up to 30% of the original aggregate principal
amount of the Notes, provided, however, that Notes having a principal amount
equal to at least 70% of the original aggregate principal amount of the Notes
remain outstanding after such redemption. Such redemption must occur on a
Redemption Date within 90 days of such sale and upon not less than 30 nor more
than 60 days' notice mailed to each Holder of Notes to be redeemed at such
Holder's address appearing in the Security Register, in amounts of $1,000 or an
integral multiple of $1,000, at a redemption price of 110.625% of the principal
amount of the Notes plus accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to
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receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the particular
Notes to be redeemed or any portion thereof that is an integral multiple of
$1,000.
The Notes do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if
(i) certain Net Available Proceeds are available to the Company as a result of
Asset Dispositions or (ii) a Change of Control occurs, the Company shall be
required to make an Offer to Purchase for all or a specified portion of the
Notes.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Note in part only, a new Note or Notes of like tenor for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Note having been paid or discharged or (ii)
certain restrictive covenants and Events of Default with respect to this Note
having occurred, in each case upon compliance with certain conditions set forth
therein.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under the Indenture and this
Note are Guaranteed, jointly and severally on a senior subordinated basis,
pursuant to Senior Subordinated Guarantees endorsed hereon as provided in the
Indenture. Each Holder, by holding this Note, agrees to all of the terms and
provisions
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of said Senior Subordinated Guarantees. The Indenture provides that a
Guarantor shall be released from its Senior Subordinated Guarantee upon
compliance with certain conditions.
The Notes and the Senior Subordinated Guarantees shall be
subordinated in right of payment to Senior Debt of the Company and the
Guarantors, respectively, as provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Guarantors and the rights of the Holders of
the Notes under the Indenture at any time by the Company, the Guarantor and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Notes at the time Outstanding, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Notes, the Holders of not less than 25% in aggregate principal
amount of the Notes at the time Outstanding shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall not
have received from the Holders of a majority in aggregate principal amount
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of Notes at the time Outstanding a direction inconsistent with such request and
shall have failed to institute any such proceeding for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by the
Holder of this Note for the enforcement of any payment of principal hereof or
any premium (if any) or interest hereon on or after the respective due dates
expressed herein (or, in the case of redemption, on or after the Redemption
Date or, in the case of any purchase of this Note required to be made pursuant
to an Offer to Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 principal amount and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may
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require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the
Company, the Guarantors or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes (subject to the
provisions hereof with respect to determination of the Person to whom interest
is payable), whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day
year of twelve 30-month days.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE, THIS NOTE AND THE SENIOR SUBORDINATED GUARANTEES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety
by the Company pursuant to Section 1014 or 1016 of the Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Note purchased
by the Company pursuant to Section 1014 or 1016 of the Indenture, state the
principal amount of this Note you want to elect to have so purchased by the
Company: $___________
Dated: Your Signature:
---------------- -------------------------
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:
---------------------------------------------------------
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature guarantee
program" as may be determined by the Trustee in addition
to, or in substitution for STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Notes with the Senior Subordinated Guarantees
referred to in the within-mentioned Indenture.
------------------------------
as Trustee
By
---------------------------
Authorized Officer
SECTION 205. Form of Senior Subordinated Guarantee.
SENIOR SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a senior subordinated basis to the Holder of the Note upon which
this Senior Subordinated Guarantee is endorsed, and to the Trustee on behalf of
such Holder, the due and punctual payment of the principal of (and premium, if
any) and interest on such Note when and as the same shall become due and
payable, whether at the Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of the Company punctually to make
any such payment, each of the Guarantors hereby jointly and severally agrees to
cause such payment to be made punctually when and as the same shall become due
and payable, whether at the Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, and as if such payment were made by the
Company.
The Senior Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
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Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Note or the Indenture, the absence of any
action to enforce the same, any creation, exchange, release or non-perfection
of any Lien on any collateral for, or any release or amendment or waiver of any
term of any other Guarantee of, or any consent to departure from any
requirement of any other Guarantee of, all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter
11 of the Bankruptcy Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the Company,
as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the claims of the Trustee or any of the Holders for payment of any of the
Notes, any waiver or consent by the Holder of such Note or by the Trustee or
either of them with respect to any provisions thereof or of the Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each of the Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto
or exhaust any right or take any action against the Company or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Note or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Senior
Subordinated Guarantee will not be discharged except by complete performance of
the obligations contained in such Note and in this Senior Subordinated
Guarantee. Each of the Guarantors hereby agrees that, in the event of a
default in payment of principal (or premium, if any) or interest on such Note,
whether at their Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Note,
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subject to the terms and conditions set forth in the Indenture, directly
against each of the Guarantors to enforce this Senior Subordinated Guarantee
without first proceeding against the Company. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Notes, to collect
interest on the Notes, or to enforce or exercise any other right or remedy with
respect to the Notes, such Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Senior Subordinated Guarantee or of the Indenture shall alter or impair the
Senior Subordinated Guarantee of any Guarantor, which is absolute and
unconditional, of the due and punctual payment of the principal (and premium,
if any) and interest on the Note upon which this Senior Subordinated Guarantee
is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of
such Note against the Company in respect of any amounts paid by such Guarantor
on account of such Note pursuant to the provisions of its Senior Subordinated
Guarantee or the Indenture; provided, however, that such Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any) and
interest on this Note and all other Notes issued under the Indenture shall have
been paid in full.
This Senior Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue
to be effective or
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be reinstated, as the case may be, if at any time payment and performance of
the Notes are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Notes, whether as
a "voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Notes shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Senior Subordinated Guarantee.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Senior Subordinated Guarantee or pursuant to its
contribution obligations under the Indenture, result in the obligations of such
Guarantor under the Senior Subordinated Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in a pro rata amount based on the net
worth of each Guarantor.
The Guarantors or any particular Guarantor shall be released from
this Senior Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Guarantor after the date of the Indenture will be deemed to have executed and
delivered this Senior Subordinated Guarantee for the benefit of the Holder of
the Note upon which this Senior Subordinated Guarantee is
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endorsed, with the same effect as if such Guarantor was named below and had
executed and delivered this Senior Subordinated Guarantee.
All terms used in this Senior Subordinated Guarantee which are
defined in the Indenture referred to in the Note upon which this Senior
Subordinated Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
This Senior Subordinated Guarantee shall not be valid or
obligatory for any purpose until the certificate of authentication on the Note
upon which this Senior Subordinated Guarantee is endorsed shall have been
executed by the Trustee under the Indenture by manual signature.
Reference is made to Article Twelve of the Indenture for further
provisions with respect to this Senior Subordinated Guarantee.
THIS SENIOR SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Subordinated Guarantee to be duly executed.
Hollywood Theater Holdings, Inc.,
As Guarantor
By:
------------------------------
[Officer]
Attest:
------------------------------
[Secretary]
[Assistant Secretary]
Crown Theatre Corporation
As Guarantor
By:
------------------------------
[Officer]
Attest:
------------------------------
[Secretary]
[Assistant Secretary]
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ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $110,000,000
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Sections 1014 and 1016.
The Notes shall be known and designated as the "10_% Senior
Subordinated Notes due August 1, 2007" of the Company. Their Stated Maturity
shall be August 1, 2007 and they shall bear interest at the rate of 10_% per
annum, from August 7, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on February 1 and August 1, commencing February 1, 1998, until
the principal thereof is paid or made available for payment provided, if any
Registration Default occurs under the Exchange and Registration Rights
Agreement, then the per annum interest rate on the applicable will increase for
the period from the occurrence of the Registration Default until such time as
no Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate) by a per annum rate of 0.5% for the first 90-day
period following the occurrence of such Registration Default, and by an
additional 0.5% thereafter (up to a maximum of 1.0%).
The principal of (and premium, if any) and interest on the Notes
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.
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The Notes shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1014 and 1016.
The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be Guaranteed by the Guarantors as provided in
Article Twelve.
The Notes and each of the Senior Subordinated Guarantees shall be
subordinated in right of payment to Senior Debt of the Company and each of the
Guarantors respectively, as provided in Article Thirteen.
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Fourteen.
Unless the context otherwise requires, the Origi nal Notes and
the Exchange Notes shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1000 and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Notes may
be manual or facsimile.
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Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company and having endorsed (by attachment or imprint) thereon the Senior
Subordinated Guarantees executed as provided in Article Twelve by the
Guarantors to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Notes with such Senior Subordinated
Guarantees endorsed thereon; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes with such Senior Subordinated
Guarantees endorsed thereon as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a registration
statement under the Securities Act with respect thereto, the Company may
deliver Exchange Notes executed by the Company, and having endorsed thereon the
Senior Subordinated Guarantees executed under Article Twelve by the Guarantors,
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Exchange Notes and a like principal amount
of Original Notes for cancellation in accordance with Article Fourteen of this
Indenture, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Notes, with the Senior Subordinated Guarantees
endorsed thereon. Prior to authenticating such Exchange Notes, and accepting
any additional responsibilities under this Indenture in relation to such Notes,
the Trustee shall be entitled to receive, if requested, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating in
substance that all conditions hereunder precedent to the authentication and
delivery of such Exchange Notes with the Senior Subordinated Guarantees of the
Guarantors endorsed
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thereon have been complied with and that such Exchange Notes and the Senior
Subordinated Guarantees of the Guarantors endorsed thereon, when such Notes
have been duly authenticated and delivered by the Trustee (and subject to any
other conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations of the
Company and the Guarantors, respectively, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Each Note shall be dated the date of its authentication.
No Note or Senior Subordinated Guarantee endorsed thereon shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and that each Senior Subordinated Guarantee endorsed thereon has been
duly endorsed thereon and delivered hereunder.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes and Senior
Subordinated Guarantees, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Notes with temporary Senior
Subordinated Guarantees endorsed thereon, which Notes and Senior Subordinated
Guarantees are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes and Senior Subordinated Guarantees, respectively, in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes and
Senior
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Subordinated Guarantees may determine, as evidenced by their execution thereof.
If temporary Notes are issued, the Company will cause definitive
Notes and Senior Subordinated Guarantees to be prepared without unreasonable
delay. After the preparation of definitive Notes and Senior Subordinated
Guarantees, the temporary Notes shall be exchangeable for definitive Notes with
definitive Senior Subordinated Guarantees endorsed thereon, upon surrender of
the temporary Notes at any office or agency of the Company designated pursuant
to Section 1002, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations having endorsed thereon definitive
Senior Subordinated Guarantees executed by the Guarantors. Until so exchanged
the temporary Notes and Senior Subordinated Guarantees shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes and
Senior Subordinated Guarantees, respectively.
SECTION 305. Global Notes.
(a) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Note or a nominee thereof
unless (i) such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor
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Depositary, (ii) the Company executes and delivers to the Trustee a Company
Order stating that it elects to cause the issuance of the Notes in certificated
form and that all Global Notes shall be exchanged in whole for Securities that
are not Global Notes (in which case such exchange shall be effected by the
Trustee) or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Note.
(c) If any Global Note is to be exchanged for other Notes or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Three. If any Global Note is to be
exchanged for other Notes or cancelled in part, or if another Note is to be
exchanged in whole or in part for a beneficial interest in any Global Note,
then either (i) such Global Note shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Note to be so exchanged for a beneficial interest therein, as the case may be,
by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Note, the Trustee shall, subject to Section 306(c) and
as otherwise provided in this Article Three, authenticate and deliver any Notes
issuable in exchange for such Global Note (or any portion thereof) to or upon
the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee
in connection with the occurrence of any of the events specified in the
preceding paragraph, the Company shall promptly make available to the Trustee a
reasonable supply of Notes that are not in the form of Global Notes. The
Trustee shall be entitled to rely upon any order, direction or request of the
Depositary or its authorized representative which is given or made pursuant to
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this Article Three if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(d) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Note, unless
such Note is registered in the name of a Person other than the Depositary for
such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Note, shall be the Holder of such Global Note for all purposes under the
Indenture, the Notes and the Senior Subordinated Guarantees, and owners of
beneficial interests in a Global Note shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in a
Global Note will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange Generally;
Restrictions on Transfer and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange
Generally. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company designated pursuant to Section 1002 being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers and exchanges of Notes.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Notes and transfers and exchanges of Notes as herein provided.
Such Security Register shall distinguish between Original Notes and Exchange
Notes.
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Upon surrender for registration of transfer of any Note at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations, of a like aggregate principal amount
and bearing such restrictive legends as may be required by this Indenture, each
such new Note having endorsed thereon the Senior Subordinated Guarantee
executed by each Guarantor.
At the option of the Holder, and subject to the other provisions
of this Section 306, Notes may be exchanged for other Notes of any authorized
denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture, each such new Note
having endorsed thereon the Senior Subordinated Guarantee executed by each
Guarantor, upon surrender of the Notes to be exchanged at any such office or
agency. Whenever any Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
Holder making the exchange is entitled to receive.
All Notes and the Senior Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or exchange of Notes shall be the
valid obligations of the Company and the respective Guarantors, evidencing the
same debt, and (except for the differences between Original Notes and Exchange
Notes provided for herein) entitled to the same benefits under this Indenture,
as the Notes and Senior Subordinated Guarantees endorsed thereon, respectively,
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Sections 304, 1014, 1016 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 1105 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption, in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(b) Certain Transfers and Exchanges. Notwith standing any
other provision of this Indenture or the Notes, transfers and exchanges of
Notes and beneficial interests in a Global Note of the kinds specified in this
Section 306(b) shall be made only in accordance with this Section 306(b).
(i) Restricted Global Note to Regulation S Temporary
Global Note or Regulation S Global Note. If the owner of a beneficial
interest in the Restricted Global Note wishes at any time to transfer
such interest to a Person who wishes to acquire the same in the form of
a beneficial interest in the Regulation S Temporary Global Note (if
before the expiration of the Restricted Period) or in the Regulation S
Global Note (if thereafter), such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S
Temporary Global Note or Regulation S Temporary Global Note or(as
applicable) in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Restricted
Global Note in an equal principal amount be
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debited from another specified Agent Member's account and (B) a
Regulation S Certificate, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Restricted Global Note
or his attorney duly authorized in writing, then the Trustee, as
Security Registrar but subject to Clause (b)(iv) below, shall reduce the
principal amount of the Restricted Global Note and increase the
principal amount of the Regulation S Temporary Global Note or Regulation
S Global Note (as applicable) by such specified principal amount as
provided in Section 305(c).
(ii) Regulation S Temporary Global Note to Restricted
Global Note. If the owner of a beneficial interest in the Regulation S
Temporary Global Note wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Restricted Global Note, such transfer may be effected
only in accordance with this Clause (b)(ii) and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Restricted
Global Note in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Regulation
S Temporary Global Note in an equal principal amount be debited from
another specified Agent Member's account and (B) a Restricted Notes
Certificate, satisfactory to the Trustee and duly executed by the owner
of such beneficial interest in the Regulation S Temporary Global Note or
his attorney duly authorized in writing, then the Trustee, as Security
Registrar, shall reduce the principal amount of the Regulation S
Temporary Global Note and increase the principal amount of the
Restricted Global Note by such specified principal amount as provided in
Section 305(c).
(iii) Exchanges between Global Note and Non- Global Note.
A beneficial interest in a Global Note may be exchanged for a Note that
is not a Global Note
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as provided in Section 305, provided that, if such interest is a
beneficial interest in the Restricted Global Note, or if such interest
is a beneficial interest in the Regulation S Temporary Global Note, then
such interest shall be exchanged for a Restricted Note (subject in each
case to Section 306(c)).
(iv) Regulation S Temporary Global Note to be Held
Through Euroclear or Cedel during Restricted Period. The Company shall
use its best efforts to cause the Depositary to ensure that beneficial
interests in the Regulation S Temporary Global Note may be held only in
or through accounts maintained at the Depositary by Euroclear or Cedel
(or by Agent Members acting for the account thereof), and no person
shall be entitled to effect any transfer or exchange that would result
in any such interest being held otherwise than in or through such an
account; provided that this Clause (b)(iv) shall not prohibit any
transfer or exchange of such an interest in accordance with Clause
(b)(ii) above.
(c) Securities Act Legends. Rule 144A Notes and their
respective Successor Notes shall bear a Restricted Notes Legend, and Regulation
S Notes and their Successor Notes shall bear a Regulation S Legend, subject to
the following:
(i) subject to the following Clauses of this Section
306(c), a Note or any portion thereof which is exchanged, upon transfer
or otherwise, for a Global Note or any portion thereof shall bear the
Securities Act Legend borne by such Global Note while represented
thereby;
(ii) subject to the following Clauses of this Section
306(c), a new Note which is not a Global Note and is issued in exchange
for another Note (including a Global Note) or any portion thereof, upon
transfer or otherwise, shall bear the Securities Act Legend borne by
such other Note, provided that, if such new Note is required pursuant to
Section 306(b)(iii) to be issued in the form of a Restricted Note, it
shall bear a
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Restricted Notes Legend and, if such new Note is so required to be
issued in the form of a Regulation S Note, it shall bear a Regulation S
Legend;
(iii) Exchange Notes shall not bear a Securities Act
Legend;
(iv) at any time after the Notes may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act, a
new Note which does not bear a Securities Act Legend may be issued in
exchange for or in lieu of a Note (other than a Global Note) or any
portion thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, satisfactory to the Trustee and duly
executed by the Holder of such legended Note or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new Note
in exchange for or in lieu of such other Note as provided in this
Article Three;
(v) a new Note which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Note (other than a
Global Note) or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Note is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Note as provided in this Article
Three; and
(vi) notwithstanding the foregoing provisions of this
Section 306(c), a Successor Note of a Note that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Note is a "restricted security" within the meaning of Rule
144, in which case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Note bearing a Restricted Notes Legend in
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exchange for such Successor Note as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount, having endorsed thereon
the Senior Subordinated Guarantees extended by the Guarantors and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by either of them to
save each of them, each Guarantor, and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Note has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount,
having endorsed thereon the Senior Subordinated Guarantees extended by the
Guarantors and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note and each Senior Subordinated Guarantee endorsed
thereon shall constitute an
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original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes and Senior Subordinated
Guarantees, respectively duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 308. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, which date shall not be less
than 60 days after receipt by the Trustee of the notice of the proposed
payment and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Note Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer,
the Company, the Guarantors, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Note is registered as the owner
of such Note for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 308) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Guarantors, the Trustee nor any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Note in global form, nothing
herein shall prevent the Company or the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or
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its nominee), as a Holder, with respect to such Note in global form or impair,
as between such Depositary and owners of beneficial interests in such Note in
global form, the operation of customary practices governing the exercise of the
rights of such Depositary (or its nominee) as Holder of such Note in global
form.
SECTION 310. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 1014 or 1016
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, together with the Senior Subordinated Guarantees endorsed thereon,
shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Notes so delivered shall, together with the Senior Subordinated Guarantees
endorsed thereon, be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee, together with the Senior Subordinated Guarantees
endorsed thereon, shall be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360 day
year of twelve 30-day months.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
(i) rights of registration of transfer and exchange and the Company's right of
optional redemption, (ii) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payment of
principal and interest on the Notes, (iv) rights, obligations and immunities of
the Trustee under the Indenture and (v) rights of the Holders of the Notes as
beneficiaries of the Indenture with respect to any property deposited with the
Trustee payable to all or any of them), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture (including, but not limited to,
Article Twelve hereof), when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 307
and (ii) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited irrevocably or caused to be deposited with the Trustee
as trust funds in trust an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations
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of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Thirteen or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) failure to pay the principal of (or premium, if any, on) any
Note at its Maturity; or
(2) failure to pay any interest upon any Note when it becomes
due and payable, and continuance of such default for a period of 30
days; or
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(3) default, on the applicable Purchase Date, in the purchase of
Notes required to be purchased by the Company pursuant to an Offer to
Purchase as described in Section 1014 herein and Section 1016 herein
when due and payable; or
(4) failure to perform or comply with the provisions of Section
801; or
(5) failure to perform any other covenant or agreement of the
Company in this Indenture or Notes (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(6) default under the terms of any instrument evidencing or
securing Debt for money borrowed by the Company or any Restricted
Subsidiary having an outstanding principal amount of $2.0 million
individually or in the aggregate which default results in the
acceleration of the payment of such indebtedness or constitutes the
failure to pay such indebtedness when due; or
(7) a final judgment or judgments (not subject to appeal) for
the payment of money are entered against the Company or any Restricted
Subsidiary of the Company in an amount in excess of $2.0 million by a
court or courts of competent jurisdiction, which judgments remain
undischarged or unstayed for a period of 60 days after the right to
appeal all such judgments has expired; or
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(8) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
the Company or any such Restricted Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any such Restricted Subsidiary under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary of any substantial part of the property of the
Company or any such Restricted Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any such Subsidiary, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the commencement by the Company or any Restricted Subsidiary
of the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any such Restricted
Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Restricted Subsidiary of the Company, or the filing
by the Company or any such Restricted Subsidiary of a petition or answer
or consent
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seeking reorganization or relief under any applicable Federal or State
law, or the consent by the Company or any such Restricted Subsidiary to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Restricted
Subsidiary of the Company of any substantial part of the property of the
Company or any Restricted Subsidiary of the Company, or the making by
the Company or any Restricted Subsidiary of the Company of an assignment
for the benefit of creditors, or the admission by the Company or any
such Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any such Restricted Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(8) or (9)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Notes may declare all of the Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal and any accrued
interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 501(8) or (9) occurs, the principal and any
accrued interest on the Notes then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate principal amount of the Outstanding
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Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company or any of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes
which have become due otherwise than by such declaration of
acceleration (including any Notes required to have been purchased
on the Purchase Date pursuant to an Offer to Purchase made by the
Company) and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Notes, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Note
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof or, with respect
to any Note required to have been purchased pursuant to an Offer to
Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal (and premium, if any) and interest, and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate
provided by the Notes, if any, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and
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enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any
Guarantor or any other obligor upon the Notes, or upon the property of the
Company or its creditors or of any Guarantor or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes
or any Senior Subordinated Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Notes
in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the extent provided in Article Twelve, to the
holders of Senior Debt in accordance with Article Twelve; and
THIRD: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the Notes
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on
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such Notes for principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to
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obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 306) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the Redemption Date
or in the case of an Offer to Purchase made by the Company and required to be
accepted as to such Note, on the Purchase Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or
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stolen Notes in the last paragraph of Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct 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.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (including any Note which is required to have been
purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or any Guarantor.
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SECTION 515. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default, the duties
and responsibilities of the Trustee shall be as provided by the Indenture.
During the existence of an Event of Default, the Trustee will exercise such
rights and powers vested in it under the Indenture and use the same degree of
care and skill in its exercise as a prudent person would exercise under the
circumstances in the conduct of such person's own affairs. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
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SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(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;
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(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(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 and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes and the Senior
Subordinated Guarantees except the Trustee's certificates of authentication,
shall be taken as the statements of the Company or the Guarantors, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes or the Senior Subordinated Guarantees. The Trustee
shall not be accountable for the use or application by the Company of Notes or
the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, any Guarantor in its individual or any other capacity,
may become the owner or pledgee of Notes and, subject to Sections 608 and 613,
may otherwise deal with the Company any Guarantor with the same rights it would
have if it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Guarantor, as the case may
be.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be
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limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of 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.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 (or is a member or
subsidiary of a bank holding company system with aggregate combined capital and
surplus of at least $50,000,000) and an office in the Borough of Manhattan, The
City of New York.
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If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in aggregate principal amount of the Outstanding Notes, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after
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written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the
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successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, the Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder. Upon request
of any such successor Trustee, the Company and the Guarantors shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
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the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes or any Senior Subordinated
Guarantee), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company, the Guarantors and the Trustee that neither the
Company, the Guarantors nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as to the names
and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will
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notify the Trustee when the Notes are listed on any stock exchange.
SECTION 704. Reports by Company and the Guarantors.
The Company and each of the Guarantors shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 30 days after the same is
so required to be filed with the Commission.
SECTION 705. Officers' Certificate with Respect to Change
in Interest Rates.
Within five days after the day on which any Special Interest
begins accruing, and within five days after any Special Interest ceases to
accrue, the Company shall deliver an Officers' Certificate to the Trustee
stating the interest rate thereupon in effect for the Unregistered Notes (if
any are Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain Sales of Assets.
The Company shall not, in a single transaction or a series of
related transactions, (i) consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Company and (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of
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all or substantially all of its assets unless: (1) in a transaction in which
the Company does not survive or in which the Company sells, leases or otherwise
disposes of all or substantially all of its assets, the successor entity to the
Company is organized under the laws of the United States of America or any
State thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under the
Indenture; (2) immediately before and after giving effect to such transaction
and treating any Debt which becomes an obligation of the Company or a
Restricted Subsidiary as a result of such transaction as having been Incurred
by the Company or such Restricted Subsidiary at the time of the transaction, no
Event of Default or event that with the passing of time or the giving of
notice, or both, would constitute an Event of Default shall have occurred and
be continuing; (3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company (or other successor entity to the
Company) is equal to or greater than that of the Company immediately prior to
the transaction; (4) immediately after giving effect to such transaction and
treating any Debt which becomes an obligation of the Company or a Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary at the time of the transaction, the
Company (including any successor entity to the Company) could Incur at least
$1.00 of additional Debt pursuant to the provisions of the Indenture described
in the first paragraph under Section 1008 hereof; or (5) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer, lease or
acquisition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with, and, with respect to such Officer's Certificate,
setting forth the manner of determination of the Consolidated Net Worth and the
ability to Incur Debt in accordance with Clause (4) of Section 801, the Company
or, if applicable, of the Successor Company as required pursuant to the
foregoing.
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SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or
other disposition of all or substantially all of the properties and assets of
the Company as an entirety in accordance with Section 801, the Successor
Company shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution of the Company, the Guarantors, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
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(3) to secure the Notes pursuant to the requirements of
Section 1011 or otherwise; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity or correct any mistake, to correct
or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such action
pursuant to this Clause (4) shall not adversely affect the interests of
the Holders in any material respect.
(6) to add new Guarantors pursuant to Section 1205.
(7) to change or replace the existing Trustee with a new
Trustee pursuant to Section 610.
SECTION 902. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution
of the Company, the Guarantors, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the
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Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon,
or change the place of payment where, or the coin or currency in which,
any Note or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1020, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the
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Holder of each Outstanding Note affected thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Notes in a manner adverse to the Holders, or
(5) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Sections 1014 and 1016, modify the provisions of
this Indenture with respect to such Offer to Purchase in a manner
materially adverse to such Holder.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every
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Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Notes to
Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where Notes may be presented or surrendered
for payment, where
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Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or any Guarantor in respect of the
Notes, the Senior Subordinated Guarantees 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 and each Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. Money for Note
Payments to be Held in Trust.
The Company may change any Paying Agent without notice to any
Holder. The Company hereby initially appoints the Trustee as Paying Agent and
the Trustee hereby initially agrees so to act.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of interest on any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be
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paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Notes, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Note and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors in good faith shall
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determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof is not disadvantageous
in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
Except with respect to immaterial items, the Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at
all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice. The Company shall, and shall cause its Subsidiaries
to, use the proceeds from any such insurance policy to repair, replace or
otherwise restore the property to which such proceeds relate.
SECTION 1008. Limitation on Consolidated Debt.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, incur any Debt unless immediately after giving pro forma effect
to the incurrence of such Debt and the receipt and application of the proceeds
thereof, the Consolidated Cash Flow Coverage Ratio of the Company would be
greater than 2.0 to 1; provided that if the Debt which is the subject of the
determination under this provision is Acquired Debt, the Consolidated Cash Flow
Coverage Ratio of the Company shall be determined by giving effect (on a pro
forma basis, as if the transaction had occurred at the beginning of the
immediately preceding four-quarter period) to both the incurrence or assumption
of such Acquired Debt by the Company and the inclusion in the Consolidated Cash
Flow Available for Fixed Charges of the Person whose Debt would constitute
Acquired Debt.
Notwithstanding the foregoing paragraph, the Company may, and may
permit any Restricted Subsidiary, to incur the following Debt:
(i) Debt under the New Senior Bank Facility in an aggregate
principal amount at any one time not to exceed $75.0 million, less any
amounts by which any revolving credit
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facility commitments under the New Senior Bank Facility are permanently
reduced pursuant to Section 1014 (so long as and to the extent that any
required payments in connection therewith are actually made);
(ii) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary of the Company or Debt owed by a Subsidiary of the Company to
the Company or a Wholly Owned Restricted Subsidiary of the Company;
provided, however, that (a) any such Debt owing by the Company to a
Wholly Owned Restricted Subsidiary shall be Subordinated Debt evidenced
by an intercompany promissory note and (b) upon either (1) the transfer
or other disposition by such Wholly Owned Restricted Subsidiary or the
Company of any Debt so permitted to a Person other than the Company or
another Wholly Owned Restricted Subsidiary of the Company or (2) the
issuance (other than directors' qualifying shares), sale, lease,
transfer or other disposition of shares of Capital Stock (including by
consolidation or merger) of such Wholly Owned Restricted Subsidiary to a
Person other than the Company or another such Wholly Owned Restricted
Subsidiary, the provisions of this Clause (ii) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been
Incurred at the time of such transfer or other disposition;
(iii) the original issuance by the Company of the Debt evidenced
by the Notes (including any Exchange Notes);
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(iv) Debt (other than Debt described in another clause of this
paragraph) outstanding on the date of original issuance of the Notes
after giving effect to the application of the proceeds of the Notes;
(v) Debt consisting of Permitted Interest Rate, Currency or
Commodity Price Agreements;
(vi) Debt which is exchanged for or the proceeds of which are
used to refinance or refund, or any extension or renewal of, outstanding
Debt Incurred pursuant to the preceding paragraph or clauses (iii) or
(iv) of this paragraph (each of the foregoing, a "refinancing") in an
aggregate principal amount not to exceed the principal amount of the
Debt so refinanced plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Debt so
refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated repurchase, plus the expenses of the
Company or the Restricted Subsidiary, as the case may be, incurred in
connection with such refinancing; provided, however, that (A) Debt the
proceeds of which are used to refinance the Notes or Debt which is pari
passu with or subordinate in right of payment to the Notes shall only be
permitted if (x) in the case
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of any refinancing of the Notes or Debt which is pari passu to the
Notes, the refinancing Debt is made pari passu to the Notes or
subordinated to the Notes, and (y) in the case of any refinancing of
Debt which is subordinated to the Notes, the refinancing Debt
constitutes Subordinated Debt; (B) the refinancing Debt by its terms, or
by the terms of any agreement or instrument pursuant to which such Debt
is issued, (1) does not provide for payments of principal of such Debt
at the stated maturity thereof or by way of a sinking fund applicable
thereto or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof (including any redemption, defeasance, retirement or
repurchase which is contingent upon events or circumstances, but
excluding any retirement required by virtue of acceleration of such Debt
upon any event of default thereunder), in each case prior to the stated
maturity of the Debt being refinanced and (2) does not permit redemption
or other retirement (including pursuant to an offer to purchase) of such
debt at the option of the holder thereof prior to the final stated
maturity of the Debt being refinanced), other than a redemption or other
retirement at the option of the holder of such Debt (including pursuant
to an offer to purchase) which is conditioned upon provisions
substantially similar to those described under Sections 1014 and 1016;
and (C) in the case of any refinancing of Debt Incurred by the Company,
the refinancing Debt may be Incurred only by the Company, and in the
case of any refinancing of Debt Incurred by a Restricted Subsidiary, the
refinancing Debt may
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be Incurred only by such Restricted Subsidiary; provided, further, that
Debt Incurred pursuant to this clause (vi) may not be Incurred more than
45 days prior to the application of the proceeds to repay the Debt to be
refinanced;
(vii) Acquired Debt, provided that such Debt if incurred by the
Company would be in compliance with the first paragraph of this
covenant; and
(viii) Debt not otherwise permitted to be Incurred pursuant to
Clauses (i) through (vii) above, which, together with any other
outstanding Debt Incurred pursuant to this Clause (viii), has an
aggregate principal amount not in excess of $5.0 million at any time
outstanding.
SECTION 1009. Limitation on Senior Subordinated Debt.
The Company shall not Incur any Debt which by its terms is both
(i) subordinated in right of payment to any Senior Debt and (ii) senior in
right of payment to the Notes.
SECTION 1010. Limitation on Issuance of Guarantees of Subordinated Debt.
The Company shall not permit any Restricted Subsidiary, directly
or indirectly, to assume, guarantee or in any other manner become liable with
respect to any Debt
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of the Company that by its terms is pari passu or junior in right of payment to
the Notes.
SECTION 1011. Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien on or with respect to any
property or assets of the Company or any such Restricted Subsidiary now owned
or hereafter acquired except for (i) Liens incurred after the date of the
Indenture securing Debt of the Company that ranks pari passu or junior in right
of payment to the Notes, if the Notes are secured equally and ratably with such
Debt, (ii) Liens outstanding on the date of the Indenture, (iii) Liens for
taxes, assessments, governmental charges or claims not yet delinquent or which
are being contested in good faith by appropriate proceedings, provided, that
adequate reserves with respect thereto are maintained on the books of the
Company or its Restricted Subsidiaries, as the case may be, in conformity with
generally accepted accounting principles, (iv) landlords' carriers',
warehousemen's, mechanics', material men's, repairmen's or the like Liens
arising by contract or statute in the ordinary course of business and with
respect to amount which are not yet delinquent or are being contested in good
faith by appropriate proceedings, (v) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and similar
obligations, or (B) in connection with workers' compensation, unemployment
insurance and other social security legislation, (vi) easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar
encumbrances which, in the aggregate, do not materially detract from the value
of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or such Restricted Subsidiary, (vii) any
attachment or judgment Lien that does not constitute an Event of Default,
(viii) Liens securing Acquired Debt, provided, that such Liens attach solely to
the acquired assets or the assets of the acquired entity and do not extend to
or cover any other assets of the Company or any of its Restricted Subsidiaries,
(ix) Liens to secure Senior Debt, (x) Liens in
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favor of the Trustee for its own benefit and for the benefit of the Holders,
(xi) any interest or title of a lessor pursuant to a lease constituting a
Capital Lease Obligation, (xii) pledges or deposits made in connection with
acquisition agreements or letters of intent entered into in respect of a
proposed acquisition; (xiii) Liens in favor of prior holders of leases on
property acquired by the Company or of sublessors under leases on the Company
property; (xiv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, banker's
acceptances, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money); (xv) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the date of the Indenture; provided
that (a) such Lien is created solely for the purpose of securing Debt incurred,
in accordance with Section 1008, (1) to finance the cost (including the cost of
improvement or construction) of the item property or assets subject thereto and
such Lien is created prior to, at the time of or within six months after the
later of the acquisition, the completion of construction or the commencement of
full operation of such property or (2) to refinance any Debt previously so
secured, (b) the principal amount of the Debt secured by such Lien does not
exceed 100% of such cost and (c) any such Lien shall not extend to or cover any
property or assets other than such item of property or assets and any
improvements on such item; (xvi) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries, taken as a whole; (xvii) Liens arising from
filing Uniform Commercial Code financing statements regarding leases; (xviii)
Liens on property of, or on shares of stock or Debt of, any Person existing at
the time such Person becomes, or becomes a part of, any Restricted Subsidiary,
provided that such Liens do not extend to or cover any property or assets of
the Company or any Restricted Subsidiary other than the property or assets
acquired; (xix) Liens in favor of the Company or any Restricted Subsidiary;
(xx) Liens encumbering deposits securing Debt under Permitted Interest Rate,
Currency or
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Commodity Price Agreements; (xxi) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods entered
into by the Company or any of its Restricted Subsidiaries in the ordinary
course of business in accordance with the past practices of the Company and its
Restricted Subsidiaries; (xxii) Liens on or sales of receivables; (xxiii) the
rights of film distributors under film licensing contracts entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
businesses on a basis customary in the movie exhibition industry; and (xxiv)
any renewal of or substitution of any Liens permitted by any of the preceding
clauses, provided that the Debt secured is not increased (other than by any
premium and accrued interest, plus customary fees, expenses and costs related
to such renewal or substitution of Liens or the incurrence of any related
refinancing of Debt) nor the Liens extended to any additional assets (other
than proceeds and accessions). This covenant does not authorize the incurrence
of any Debt not otherwise permitted by Section 1008.
SECTION 1012. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly, declare or pay
any dividend or make any distribution (including any payment in connection with
any merger or consolidation derived from assets of the Company or any
Restricted Subsidiary) in respect of its Capital Stock or to the holders
thereof, excluding any dividends or distributions by the Company payable solely
in shares of its Capital Stock (other than Redeemable Stock) or in options,
warrants or other rights to acquire its Capital Stock (other than Redeemable
Stock), (ii) shall not, and shall not permit any Restricted Subsidiary to,
purchase, redeem, or otherwise acquire or retire for value (a) any Capital
Stock of the Company or any Related Person of the Company or (b) any options,
warrants or other rights to acquire shares of Capital Stock of the Company or
any Related Person of the Company or any securities convertible or exchangeable
into shares of Capital Stock of the Company or any Related Person of the
Company, (iii) shall not make, or permit any Restricted Subsidiary to make, any
Investment other than a
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Permitted Investment, and (iv) shall not, and shall not permit any Restricted
Subsidiary to, redeem, repurchase, defease or otherwise acquire or retire for
value prior to any scheduled maturity, repayment or sinking fund payment Debt
of the Company which is subordinate in right of payment to the Notes (each of
clauses (i) through (iv) being a "Restricted Payment") if: (1) an Event of
Default, or an event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default, shall have occurred and is
continuing or would result from such Restricted Payment, or (2) after giving
pro forma effect to such Restricted Payment as if such Restricted Payment had
been made at the beginning of the applicable four-fiscal- quarter period, the
Company could not Incur at least $1.00 of additional Debt pursuant to the terms
of the Indenture described in the first paragraph of Section 1008 hereof, or
(3) upon giving effect to such Restricted Payment, the aggregate of all
Restricted Payments from the date of issuance of the Notes exceeds the sum of:
(a) 50% of cumulative Consolidated Net Income (or, in the case Consolidated Net
Income shall be negative, less 100% of such deficit) of the Company since the
date of issuance of the Notes through the last day of the last full fiscal
quarter ending immediately preceding the date of such Restricted Payment for
which quarterly or annual financial statements are available (taken as a single
accounting period); plus (b) 100% of the aggregate net proceeds received by the
Company after the date of original issuance of the Notes, including the fair
market value of property other than cash (determined in good faith by the Board
of Directors as evidenced by a resolution of the Board of Directors filed with
the Trustee), from contributions of capital or the issuance and sale (other
than to a Restricted Subsidiary) of Capital Stock (other than Redeemable Stock)
of the Company, options, warrants or other rights to acquire Capital Stock
(other than Redeemable Stock) of the Company and Debt of the Company that has
been converted into or exchanged for Capital Stock (other than Redeemable Stock
and other than by or from a Restricted Subsidiary) of the Company after the
date of original issuance of the Notes, provided that any such net proceeds
received by the Company from an employee stock ownership plan financed by loans
from the Company or a Restricted Subsidiary of the Company shall be included
only
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to the extent such loans have been repaid with cash on or prior to the date of
determination; plus (c) $5.0 million. Prior to the making of any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
setting forth the computations by which the determinations required by clauses
(2) and (3) above were made and stating that no Event of Default, or event that
with the passing of time or the giving of notice, or both, would constitute an
Event of Default, has occurred and is continuing or will result from such
Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or would
result therefrom, (i) the Company may pay any dividend on Capital Stock of any
class within 60 days after the declaration thereof if, on the date when the
dividend was declared, the Company could have paid such dividend in accordance
with the foregoing provisions; (ii) the Company may refinance any Debt
otherwise permitted by clause (vi) of the second paragraph under Section 1008
above or solely in exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsidiary or from or to an
employee stock ownership plan financed by loans from the Company or a
Restricted Subsidiary of the Company) of shares of Capital Stock (other than
Redeemable Stock) of the Company, provided that the amount of net proceeds from
such exchange or sale shall be excluded from the calculation of the amount
available for Restricted Payments pursuant to the preceding paragraph; (iii)
the Company may purchase, redeem, acquire or retire any shares of Capital Stock
of the Company solely in exchange for or out of the net proceeds of the
substantially concurrent sale (other than from or to a Restricted Subsidiary or
from or to an employee stock ownership plan financed by loans from the Company
or a Restricted Subsidiary of the Company) of shares of Capital Stock (other
than Redeemable Stock) of the Company; and (iv) the Company or a Restricted
Subsidiary may purchase or redeem any Debt from Net Available Proceeds to the
extent permitted under Section 1014. Any payment made pursuant to clause (i)
or (iii) of this paragraph shall be a Restricted Payment for
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purposes of calculating aggregate Restricted Payments pursuant to the preceding
paragraph.
SECTION 1013. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company (i) to pay dividends (in cash or
otherwise) or make any other distributions in respect of its Capital Stock or
pay any Debt or other obligation owed to the Company or any other Restricted
Subsidiary; (ii) to make loans or advances to the Company or any other
Restricted Subsidiary; or (iii) to transfer any of its property or assets to
the Company or any other Restricted Subsidiary. Notwithstanding the foregoing,
the Company may, and may permit any Restricted Subsidiary to, suffer to exist
any such encumbrance or restriction (a) pursuant to any agreement in effect on
the date of original issuance of the Notes; (b) pursuant to an agreement
relating to any Debt Incurred by a Person (other than a Restricted Subsidiary
of the Company existing on the date of original issuance of the Notes or any
Restricted Subsidiary carrying on any of the businesses of any such Restricted
Subsidiary) prior to the date on which such Person became a Restricted
Subsidiary of the Company and outstanding on such date and not Incurred in
anticipation of becoming a Restricted Subsidiary, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person so acquired; (c) pursuant to an agreement
effecting a renewal, refunding or extension of Debt Incurred pursuant to an
agreement referred to in clause (a) or (b) above, provided, however, that the
provisions contained in such renewal, refunding or extension agreement relating
to such encumbrance or restriction are no more restrictive in any material
respect than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a
resolution of the Board of Directors filed with the Trustee; (d) in the case of
clause (iii) above, restrictions contained in any
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security agreement (including a capital lease) securing Debt of a Restricted
Subsidiary otherwise permitted under this Indenture, but only to the extent
such restrictions restrict the transfer of the property subject to such
security agreement; (e) in the case of clause (iii) above, customary
nonassignment provisions entered into in the ordinary course of business
consistent with past practices in leases and other contracts to the extent such
provisions restrict the transfer or subletting of any such lease or the
assignment of rights under any such contract; (f) any restriction with respect
to a Restricted Subsidiary of the Company imposed pursuant to an agreement
which has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary, provided that
consummation of such transaction would not result in an Event of Default or an
event that, with the passing of time or the giving of notice or both, would
constitute an Event of Default, that such restriction terminates if such
transaction is closed or abandoned and that the closing or abandonment of such
transaction occurs within one year of the date such agreement was entered into;
or (g) such encumbrance or restriction is the result of applicable corporate
law or regulation relating to the payment of dividends or distributions.
SECTION 1014. Limitation on Asset Disposition.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related transactions
unless: (i) the Company or the Restricted Subsidiary, as the case may be,
receives consideration for such disposition at least equal to the fair market
value for the assets sold or disposed of as determined by the Board of
Directors in good faith and evidenced by a resolution of the Board of Directors
filed with the Trustee; (ii) at least 75% of the consideration for such
disposition consists of cash or readily marketable cash equivalents or
Qualifying Theater Assets or the assumption of Debt (other than Debt that is
subordinated to the Notes) relating to such assets and release from all
liability on the Debt assumed; and (iii) all Net Available Proceeds, less any
amounts invested within 360 days of such disposition in
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assets related to the business of the Company, are applied within 360 days of
such disposition (1) first, to the permanent repayment or reduction of Senior
Debt then outstanding under any agreements or instruments which would require
such application or prohibit payments pursuant to clause (2) following, (2)
second, to the extent of remaining Net Available Proceeds, to make an Offer to
Purchase outstanding Notes at 100% of their principal amount plus accrued
interest to the date of purchase and, to the extent required by the terms
thereof, any other Debt of the Company that is pari passu with the Notes at a
price no greater than 100% of the principal amount thereof plus accrued
interest to the date of purchase, (3) third, to the extent of any remaining Net
Available Proceeds following the completion of the Offer to Purchase, to the
repayment of other Debt of the Company or Debt of a Restricted Subsidiary of
the Company, to the extent permitted under the terms thereof and (4) fourth, to
the extent of any remaining Net Available Proceeds, to any other use as
determined by the Company which is not otherwise prohibited by the Indenture.
SECTION 1015. Transactions with Affiliates
and Related Persons.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, enter into any transaction (or series of related
transactions) with an Affiliate or Related Person of the Company (other than
the Company or a Wholly Owned Restricted Subsidiary of the Company), including
any Investment, either directly or indirectly, unless such transaction is on
terms no less favorable to the Company or such Restricted Subsidiary than those
that could be obtained in a comparable arm's-length transaction with an entity
that is not an Affiliate or Related Person. For any transaction that involves
in excess of $100,000 but less than or equal to $1,000,000, the Chief Executive
Officer of the Company shall determine that the transaction satisfies the above
criteria and shall evidence such a determination by a certificate filed with
the Trustee. For any transaction that involves in excess of $1,000,000, a
majority of the disinterested members of the Board of Directors shall determine
that the transaction
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satisfies the above criteria and shall evidence such a determination by a Board
Resolution filed with the Trustee. For any transaction that involves in excess
of $5,000,000, the Company shall also obtain an opinion from a nationally
recognized expert with experience in appraising the terms and conditions of the
type of transaction (or series of related transactions) for which the opinion
is required stating that such transaction (or series of related transactions)
is on terms no less favorable to the Company or such Restricted Subsidiary than
those that could be obtained in a comparable arm's-length transaction with an
entity that is not an Affiliate or Related Person of the Company, which opinion
shall be filed with the Trustee.
Notwithstanding anything to the contrary contained in the
Indenture, the foregoing provisions shall not apply to (i) transactions with
any employee, officer or director of the Company or any of its Restricted
Subsidiaries pursuant to employee benefit plans or compensation arrangements or
agreements entered into in the ordinary course of business, (ii) transactions
with any Affiliate or Related Person in which such Affiliate or Related Person
acquires or purchases the capital stock of the Company or any Restricted
Subsidiary at fair market value or (iii) transactions with any Affiliate or
Related Person in which such Affiliate or Related Person receives a customary
finder's fee or other advisory fee for services rendered to the Company or any
Restricted Subsidiary.
SECTION 1016. Change of Control.
Within 30 days of the occurrence of a Change of Control, the
Company will be required to make an Offer to Purchase all Outstanding Notes at
a purchase price equal to 101% of their principal amount plus accrued interest
to the date of purchase. A "Change of Control" will be deemed to have occurred
at such time as either (a) any Person (other than a Permitted Holder) or any
Persons acting together that would constitute a "group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, or any successor provision
thereto (other than Permitted Holders), together with any Affiliates or Related
Persons thereof, shall
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beneficially own (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision thereto), directly or indirectly, at least 50% of the
aggregate voting power of all classes of Voting Stock of the Company (for the
purposes of this clause (a) a person shall be deemed to beneficially own the
Voting Stock of a corporation that is beneficially owned (as defined above) by
another corporation (a "parent corporation"), if such person beneficially owns
(as defined above) at least 50% of the aggregate voting power of all classes of
Voting Stock of such parent corporation); or (b) any Person or Group (other
than Permitted Holders), together with any Affiliates or Related Persons
thereof, shall succeed in having a sufficient number of its nominees elected to
the Board of Directors of the Company such that such nominees, when added to
any existing director remaining on the Board of Directors of the Company after
such election who was a nominee of or is an Affiliate or Related Person of such
Person or Group, will constitute a majority of the Board of Directors of the
Company.
In the event that the Company makes an Offer to Purchase the
Notes, the Company intends to comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act.
SECTION 1017. Provision of Financial Information.
Prior to the time the Company becomes subject to Section 13(a) or
15(d) of the Exchange Act, the Company shall provide to all Holders and file
with the Trustee copies of the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if the Company were so required, such documents to be mailed to Holders
and filed with the Trustee on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so required. After the Company commences filing
such reports, and so long as any of the Notes are outstanding, the Company, or
if the Company is not required to file,
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Holdings shall file with the Commission the annual reports, quarterly reports
and other documents which the Company is required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act or any successor
provisions thereto.
SECTION 1018. Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the Company to be an
"Unrestricted Subsidiary" as provided below in which event such Subsidiary and
each other Person that is then or thereafter becomes a Subsidiary of such
Subsidiary will be deemed to be an Unrestricted Subsidiary. "Unrestricted
Subsidiary" means (1) any Subsidiary designated as such by the Board of
Directors as set forth below where (a) neither the Company nor any of its other
Subsidiaries (other than another Unrestricted Subsidiary) (i) provides credit
support for, or any Guarantee of, any Debt of such Subsidiary or any Subsidiary
of such Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (ii) is directly or indirectly liable for any Debt of
such Subsidiary or any Subsidiary of such Subsidiary, and (b) no default with
respect to any Debt of such Subsidiary or any Subsidiary of such Subsidiary
(including any right which the holders thereof may have to take enforcement
action against such Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Debt of the Company and its Subsidiaries (other
than another Unrestricted Subsidiary) to declare a default on such other Debt
or cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary, provided that either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) immediately after giving effect to such
designation, the Company could Incur at least $1.00 of additional Debt pursuant
to the first paragraph under
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Section 1008 hereof and provided, further, that the Company could make a
Restricted Payment in an amount equal to the greater of the fair market value
and book value of such Subsidiary pursuant to Section 1012 hereof and such
amount is thereafter treated as a Restricted Payment for the purpose of
calculating the aggregate amount available for Restricted Payments thereunder.
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each fiscal quarter of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Company or any Guarantor is in default in the
performance and observance of any of the terms, provisions and conditions of
Section 801 or Sections 1004 to 1018, inclusive, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware or
should reasonably become aware of the occurrence of an Event of Default or an
event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default, and the action which the Company proposes to take
with respect thereto.
SECTION 1020. Waiver of Certain Covenants.
The Company or any Guarantor may omit in any particular instance
to comply with any covenant or condition set forth in Section 801 and Sections
1004 to 1018, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Notes shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such
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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 each of the
Guarantors and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect; provided, however, with
respect to an Offer to Purchase as to which an Offer has been mailed, no such
waiver may be made or shall be effective against any Holder tendering Notes
pursuant to such Offer, and the Company may not omit to comply with the terms
of such Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
The Notes may be redeemed at the option of the Company, in whole
or in part, at any time on or after August 1, 2002 and prior to maturity, upon
not less than 30 nor more than 60 days' notice mailed to each Holder of Notes
to be redeemed at such Holder's address appearing in the Security Register, in
amounts of $1,000 or an integral multiple of $1,000, at the Redemption Prices
specified in the form of Note hereinbefore set forth together with accrued
interest to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
In addition, if on or before August 1, 2000 the Company receives
net proceeds from the sale of its Common Stock or the Common Stock of Holdings
in one or more Public Equity Offerings, the Company may, at its option, use an
amount equal to all or a portion of any such net proceeds to redeem Notes in an
aggregate principal amount of up to 30% of the original aggregate principal
amount of the Notes, provided, however, that Notes having a principal amount
equal to at least 70% of the original aggregate principal amount of the Notes
remain outstanding after such
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redemption. Such redemption must occur on a Redemption Date within 90 days of
such sale and upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Notes to be redeemed at such Holder's address appearing in the
Note Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price of 110.625% of the principal amount of the Notes plus accrued
interest to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the particular
Notes to be redeemed or any portion thereof that is an integral multiple of
$1,000.
The Note will not have the benefit of any sinking fund.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed.
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SECTION 1104. Selection by Trustee of Notes to Be
Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion
of the principal amount of such Notes which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at his address appearing in the
Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed,
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the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Notes
which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price plus accrued
interest) such Notes shall cease to bear interest.
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Upon surrender of any such Note for redemption in accordance with said notice,
such Note shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; provided, however, that installments
of interest on Notes whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 308.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note, without service
charge, a new Note or Notes, having the same form, terms and Stated Maturity,
in any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE TWELVE
Senior Subordinated Guarantee
SECTION 1201. Senior Subordinated Guarantee.
Each of the Guarantors hereby jointly and severally
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee, and to the
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Trustee on behalf of such Holder, the due and punctual payment of the principal
of (and premium, if any) and interest on such Note when and as the same shall
become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, in accordance with the terms of such
Note and of this Indenture. In case of the failure of the Company punctually
to make any such payment, each of the Guarantors hereby jointly and severally
agrees to cause such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, and as if such payment were made by the
Company.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of any Note or this Indenture, the absence of any
action to enforce the same, any creation, exchange, release or non-perfection
of any Lien on any collateral for, or any release or amendment or waiver of any
term of any other Guarantee of, or any consent to departure from any
requirement of any other Guarantee, of all or any of the Notes, the election by
the Trustee or any of the Holders in any proceeding under Chapter 11 of Title
11 of the United States Code (the "Bankruptcy Code") of the application of
Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security
interest by the Company, as debtor-in-possession, under Section 364 of the
Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Notes, any waiver or consent by the Holder of any Note or
by the Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto
or exhaust any right or take any action against the Company or
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any other Person or any collateral, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to any Note or the
indebtedness evidenced thereby and all demands whatsoever, and covenants, that
this Senior Subordinated Guarantee will not be discharged in respect of any
Note except by complete performance of the obligations contained in such Note
and in this Senior Subordinated Guarantee. Each of the Guarantors hereby
agrees that, in the event of a default in payment of principal (or premium, if
any) or interest on any Note, whether at its Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Guarantors to enforce its Senior Subordinated Guarantee
without first proceeding against the Company. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Notes, to collect
interest on the Notes or to enforce or exercise any other right or remedy with
respect to the Notes, or the Trustee or the Holders are prevented from taking
any action to realize on any collateral, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
No provision of any Senior Subordinated Guarantee or Note or of
the Indenture shall alter or impair the Senior Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (and premium, if any) and interest on the Note upon which such
Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holders
of the Notes upon which its Senior Subordinated Guarantee is endorsed against
the Company in respect of any amounts paid by such Guarantor on account of such
Note pursuant to the provisions of its Senior
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Subordinated Guarantee or this Indenture; provided, however, that no Guarantor
shall be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of (and premium, if
any) and interest on all Notes issued hereunder shall have been paid in full.
Each Senior Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the assets
of the Company and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes are, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Notes, whether as a "voidable preference," "fraudulent transfer" or otherwise,
all as though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator,
past, present or future, of any Guarantor, as such, shall have any personal
liability under any Senior Subordinated Guarantee by reason of his, her or its
status as such stockholder, officer, director, employer or incorporator.
Notwithstanding any provision in this Article to the contrary,
each Guarantor, and by its acceptance hereof each Holder of the Notes, hereby
confirms that it is the intention of all such parties that the Senior
Subordinated Guarantee of such Guarantor not constitute a fraudulent transfer
or conveyance for purposes of any federal or state law. To effectuate the
foregoing intention, the Holders of the Notes and each Guarantor hereby
irrevocably agree that the obligations of each Guarantor under its Senior
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Subordinated Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities (including, but not
limited to, Guarantor Senior Debt) of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Senior
Subordinated Guarantee or pursuant to the next succeeding paragraph hereof,
result in the obligations of such Guarantor under its Senior Subordinated
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. This paragraph is for the benefit of the creditors of
each Guarantor.
To the extent that any Guarantor shall be required to pay any
amounts on account of the Notes pursuant to its Senior Subordinated Guarantee
in excess of the greater of (i) the amount of the economic benefit actually
received by such Guarantor from the issuance of the Notes and (ii) an amount
calculated as the product of (A) the aggregate amount payable by the Guarantors
on account of the Notes pursuant to their Senior Subordinated Guarantees times
(B) the proportion (expressed as a fraction) that such Guarantor's net worth at
the date of enforcement of its Senior Subordinated Guarantee is sought bears to
the aggregate net worth of all Guarantors at such date, then such Guarantor
shall be reimbursed by the other Guarantors for the amount of such excess, pro
rata, based upon the respective net worth of such other Guarantors at the date
enforcement of its Senior Subordinated Guarantees is sought. This paragraph is
intended only to define the relative rights of the Guarantors as among
themselves, and nothing set forth in this paragraph is intended to or shall
impair the joint and several obligations of the Guarantors under their
respective Senior Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise or such right does not impair the
rights of the Holders under any Senior Subordinated Guarantee.
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SECTION 1202. Execution and Delivery of Senior
Subordinated Guarantees.
The Senior Subordinated Guarantees to be endorsed on the Notes
shall include the terms of the Senior Subordinated Guarantee set forth in
Section 1201 and any other terms that may be set forth in the form established
pursuant to Section 205. Each of the Guarantors hereby agrees to execute its
Senior Subordinated Guarantee, in a form established pursuant to Section 205,
to be endorsed on each Note authenticated and delivered by the Trustee.
The Senior Subordinated Guarantee shall be executed on behalf of
each respective Guarantor by any one of such Guarantor's Chairman of the Board,
Vice Chairman of the Board, President or Vice Presidents, attested by its
Secretary or Assistant Secretary. The signature of any or all of these
officers on the Senior Subordinated Guarantee may be manual or facsimile and
may be pursuant to a duly executed power of attorney.
A Senior Subordinated Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Note on which such Senior Subordinated Guarantee is endorsed or
did not hold such offices at the date of such Senior Subordinated Guarantee.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Senior Subordinated
Guarantee endorsed thereon on behalf of the Guarantors. Each of the Guarantors
hereby jointly and severally agrees that its Senior Subordinated Guarantee set
forth in Section 1201 shall remain in full force and effect notwithstanding any
failure to endorse a Senior Subordinated Guarantee on any Note.
SECTION 1203. Guarantors May Consolidate, Etc.,
on Certain Terms.
(a) Except as may be provided in Section 1204 and in Articles
Eight and Ten, nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the
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Company or a Guarantor or shall prevent any sale or conveyance of the property
of a Guarantor as an entirety or substantially as an entirety to the Company or
a Guarantor.
(b) Except as set forth in Article 8 hereof, nothing contained
in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into a corporation or corporations other than the
Company or a Guarantor (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which a Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety,
to a corporation other than the Company or another Guarantor (whether or not
affiliated with the Guarantor) authorized to acquire and operate the same;
provided, however, that, subject to Sections 1203(a) and 1204 hereof, (i)
immediately after such transaction, and giving effect thereto, no Default or
Event of Default shall have occurred as a result of such transaction and be
continuing, such transaction shall not violate any of the covenants in Article
10 hereof, and each Guarantor hereby covenants and agrees that, upon any such
consolidation, merger, sale or conveyance, such Guarantor's Guarantee set forth
in this Article 12 and in an endorsement on the Notes, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, shall be expressly assumed (in the
event that the Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by such corporation formed by such consolidation, or
into which the Guarantor shall have merged, or by the corporation that shall
have acquired such property (except to the extent the following Section 1204
would result in the release of such Guarantee in which case such surviving
corporation does not have to execute any such supplemental indenture). In the
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants and conditions of this
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Indenture to be performed by the Guarantor, such successor corporation shall
succeed to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor.
SECTION 1204. Release of Guarantors.
(a) Concurrently with any consolidation or merger of a Guarantor
or any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety, in each case as permitted by Section 1203, and
upon delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such consolidation, merger, sale or
conveyance was made in accordance with Section 1203, the Trustee shall execute
any documents reasonably required in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Notes and
under this Article Twelve. Any Guarantor not released from its obligations
under its Senior Subordinated Guarantees endorsed on the Notes and under this
Article Twelve shall remain liable for the full amount of principal of (and
premium, if any) and interest on the Notes and for the other obligations of a
Guarantor under its Senior Subordinated Guarantees endorsed on the Notes and
under this Article Twelve.
(b) Concurrently with the defeasance of the Notes under Section
1302 or the covenant defeasance of the Notes under Section 1303, the Guarantors
shall be released from all of their obligations under their Senior Subordinated
Guarantees endorsed on the Notes and under this Article Twelve.
(c) Upon the consummation of any transaction (whether involving
a sale or other disposition of securities, a merger, a designation as an
Unrestricted Subsidiary or otherwise) whereby any Guarantor ceases to be a
Restricted Subsidiary and which transaction is otherwise in compliance with the
provisions of this Indenture, such Guarantor shall automatically be released
from all obligations under its Guarantees endorsed on the Notes and under this
Article Twelve.
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SECTION 1205. Additional Guarantors.
The Company shall cause each Person that becomes a Restricted
Subsidiary after the date of this Indenture, upon becoming a Restricted
Subsidiary, to become a Guarantor with respect to the Notes. Any such Person
shall become a Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture, in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions of this Indenture as a Guarantor
and (b) an Opinion of Counsel to the effect that such supplemental indenture
has been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors' rights and equitable principles as
may be acceptable to the Trustee in its discretion).
ARTICLE THIRTEEN
Subordination of Notes and Senior Subordinated Guarantees
SECTION 1301. Notes Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Note, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to the provisions
of Article Four and Article Fourteen), (i) the payment of the principal of (and
premium, if any) and interest on each and all of the Notes are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all Senior Debt of the Company, and (ii) the payment of each Guarantor's
obligations in respect of its Senior Subordinated Guarantee is hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all the obligations of such Guarantor under all Guarantor Senior Debt of
such Guarantor.
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SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding") the holders
of Senior Debt shall be entitled to receive or retain payment in full of all
amounts due or to become due on or in respect of all Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Notes are entitled to receive any payment or distribution of any kind or
character, whether in cash, property or securities, on account of principal of
(or premium, if any) or interest on or other obligations in respect of the
Notes or on account of any purchase or other acquisition of Notes by the
Company or any Subsidiary of the Company (all such payments, distributions,
purchases and acquisitions herein referred to, individually and collectively,
as a "Company Notes Payment"), and to that end the holders of Senior Debt shall
be entitled to receive, for application to the payment thereof, any Company
Notes Payment which may be payable or deliverable in respect of the Notes in
any such Proceeding.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of any
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Guarantor, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Guarantor Proceeding";
the Company Proceeding and the Guarantor Proceeding each may be referred to as
a "Proceeding") the holders of all Guarantor Senior Debt of such Guarantor
shall first be entitled to receive payment in full of all amounts due or to
become due on or in respect of all such Guarantor Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Guarantor Senior Debt, before the
Holders of the Notes are entitled to receive or retain any payment or
distribution of any kind or character from such Guarantor, whether in cash,
property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of such
Guarantor subordinated to the payment of its Senior Subordinated Guarantee by
such Guarantor) on account of its Senior Subordinated Guarantee (all such
payments and distributions herein referred to, individually and collectively,
as a "Guarantor Notes Payment"; any of the Company Notes Payment and the
Guarantor Notes Payment each may be referred to as a "Notes Payment"), and to
that end the holders of Guarantor Senior Debt of such Guarantor shall be
entitled to receive, for application to the payment thereof, any Guarantor
Notes Payment which may be payable or deliverable in respect of the Senior
Subordinated Guarantee by such Guarantor in any such Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Note shall have received any
Notes Payment before all Senior Debt of the Company or Guarantor Senior Debt of
the Guarantor, as applicable, is paid in full or payment thereof provided for
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of such Debt, and if such fact shall, at or prior to the time of such
Notes Payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such Notes Payment shall be paid over or
delivered forthwith to the trustee in bankruptcy or other person making payment
or distribution of assets of the Company for the application to the payment of
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all Senior Debt remaining unpaid, to the extent necessary to pay the Senior
Debt in full.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company or any Guarantor provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of payment to
all then outstanding Senior Debt or Guarantor Senior Debt to substantially the
same extent as the Notes or Senior Subordinated Guarantors are so subordinated
as provided in this Article. The consolidation of the Company or any Guarantor
with, or the merger of the Company or any Guarantor into, another Person or the
liquidation or dissolution of the Company or any Guarantor following the
conveyance or transfer of all or substantially all of its properties and assets
as an entirety to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation or into which the Company or any
Guarantor is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1303. No Payment When Senior Debt in Default.
In the event that any Company Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Company Notes Payment
shall be made unless and until such Company Senior Payment Default shall have
been cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Senior Debt shall have been paid in full, or provision
shall have been
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made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt. "Company Senior Payment Default"
means any default in the payment of principal of (or premium, if any) or
interest on Designated Senior Debt when due, whether at the Stated Maturity of
any such payment or by declaration of acceleration, call for redemption or
otherwise.
In the event that any Guarantor Senior Payment Default (as
defined below) shall have occurred and be continuing, then no Guarantor Notes
Payment shall be made unless and until such Guarantor Senior Payment Default
shall have been cured or waived or shall have ceased to exist or all amounts
then due and payable in respect of Guarantor Senior Debt shall have been paid
in full, or provision shall have been made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt. "Guarantor Senior Payment Default" means any default in the payment of
principal of (or premium, if any) or interest on Guarantor Designated Senior
Debt when due, whether at the Stated Maturity of any such payment or by
declamation of acceleration, call for redemption or otherwise. Any Company
Senior Payment Default or Guarantor Senior Payment Default may be referred to
herein as a "Senior Payment Default".
Upon the occurrence of a Senior Nonmonetary Default and receipt
of written notice by the Company and the Trustee of the occurrence of such
Senior Nonmonetary Default from any holder of Designated Senior Debt (or a
trustee or other agent on behalf of the holders thereof), which is the subject
of such Senior Nonmonetary Default, no payments on account of principal of,
premium, if any, or interest on, or in respect of the purchase or other
acquisition of, the Notes, and no defeasance of the Notes, may be made for a
period (the "Company Payment Blockage Period") commencing on the date of the
receipt of such notice and ending the earlier of (i) the date on which such
Senior Nonmonetary Default shall have been cured or waived or ceased to exist
or all Senior Debt the subject of such Senior Nonmonetary Default shall have
been discharged and (ii) the 179th day after the date of the receipt of such
notice. In any event, no more than one Company Payment Blockage Period may be
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commenced during any 360-day period and there shall be a period of at least 181
days during each 360-day period when no Company Payment Blockage Period is in
effect. In addition, no Senior Nonmonetary Default that existed or was
continuing on the date of the commencement of a Company Payment Blockage Period
may be made the basis of the commencement of a subsequent Company Payment
Blockage Period whether or not within a period of 360 consecutive days, unless
such Senior Nonmonetary Default shall have been cured for a period of not less
than 90 consecutive days. "Senior Nonmonetary Default" means the occurrence or
existence and continuance of an event of default with respect to Designated
Senior Debt, other than a Senior Payment Default, permitting the holders of the
Designated Senior Debt (or a trustee or other agent on behalf of the holders
thereof) then to declare such Designated Senior Debt due and payable prior to
the date on which it would otherwise become due and payable.
Upon the occurrence of a Guarantor Senior Nonmonetary Default and
receipt of written notice by the Company and the Trustee of the occurrence of
such Guarantor Senior Nonmonetary Default from any holder of Guarantor Senior
Debt (or a trustee or other agent on behalf of the holders thereof), agent,
which is the subject of such Guarantor Senior Nonmonetary Default, no payments
on account of principal of, premium, if any, or interest on, or in respect of
the purchase or other acquisition of, the Notes, and no defeasance of the
Notes, may be made for a period (the "Guarantor Payment Blockage Period")
commencing on the date of the receipt of such notice and ending the earlier of
(i) the date on which such Guarantor Senior Nonmonetary Default shall have been
cured or waived or ceased to exist or all Guarantor Senior Debt the subject of
such Senior Nonmonetary Default shall have been discharged and (ii) the 179th
day after the date of the receipt of such notice. In any event, no more than
one Guarantor Payment Blockage Period may be commenced during any 360-day
period and there shall be a period of at least 181 days during each 360-day
period when no Guarantor Payment Blockage Period is in effect. In addition, no
Guarantor Senior Nonmonetary Default that existed or was continuing on the date
of the commencement of a Guarantor Payment Blockage Period may be
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made the basis of the commencement of a subsequent Guarantor Payment Blockage
Period whether or not within a period of 360 consecutive days, unless such
Guarantor Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days. "Guarantor Senior Nonmonetary Default" means
the occurrence or existence and continuance of an event of default with respect
to Guarantor Senior Debt, other than a Guarantor Senior Payment Default,
permitting the holders of the Guarantor Senior Debt (or a trustee or other
agent on behalf of the holders thereof) then to declare such Guarantor Senior
Debt due and payable prior to the date on which it would otherwise become due
and payable. Any of the Company Senior Nonmonetary Defaults and the Guarantor
Senior Nonmonetary Defaults may be referred to herein as a "Senior Nonmonetary
Default".
The failure to make any payment on the Notes by reason of the
provisions of the Indenture described under this Article Thirteen will not be
construed as preventing the occurrence of an Event of Default with respect to
the Notes arising from any such failure to make payment. Upon termination of
any period of payment blockage the Company shall resume making any and all
required payments in respect of the Notes, including any missed payments.
In the event that, notwithstanding the foregoing, the Company or
any Guarantor shall make any Company Notes Payment or Guarantor Notes Payment
to the Trustee or any Holder prohibited by the foregoing of this Section, and
if such fact shall, at or prior to the time of such Notes Payment, have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such Notes Payment shall be paid over and delivered forthwith to the
holders of the Senior Debt of the Company or of the Guarantor Senior Debt of
the Guarantor, as the case may be.
By reason of such subordination, in the event of insolvency,
creditors of the Company who are not holders of Senior Debt or of the Notes may
recover less, ratably, than holders of Senior Debt and more, ratably, than
Holders of the Notes.
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The subordination provisions described above will not be
applicable to payments in respect of the Notes from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Notes as described under Article Fourteen.
The provisions of this Section shall not apply to any Notes
Payment with respect to which Section 1302 would be applicable.
SECTION 1304. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Notes shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Notes Payments, or (b) the
application by the Trustee of any money deposited with it hereunder to Notes
Payments or the retention of such Notes Payment by the Holders, if, at the time
of such application by the Trustee, it did not have knowledge that such Notes
Payment would have been prohibited by the provisions of this Article.
SECTION 1305. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become
due on or in respect of Senior Debt of the Company or Guarantor Senior Debt of
a Guarantor, as the case may be, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, the Holders of the Notes shall be subrogated to the rights of the holders
of such Debt to receive payments and distributions of cash, property and
securities applicable to such Debt until the principal of (and premium, if any)
and interest on the Notes or the obligation under such Guarantor's Senior
Subordinated Guarantee, as the case may be, shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
the Senior Debt of the Company or
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Guarantor Senior Debt of a Guarantor, as the case may be, of any cash, property
or securities to which the Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt or
Guarantor Senior Debt by Holders of the Notes or the Trustee, shall, as among
the Company or such Guarantor, as the case may be, its creditors other than
holders of Senior Debt or Guarantor Senior Debt, as the case may be, and the
Holders of the Notes, be deemed to be a payment or distribution by the Company
or such Guarantor, as the case may be, to or on account of the Senior Debt of
the Company or Guarantor Senior Debt of such Guarantor, as the case may be.
SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Debt and Guarantor Senior Debt on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Notes is intended to or shall (a) impair, as among the Company or any
Guarantor, as applicable, its creditors other than holders of Senior Debt or
Guarantor Senior Debt and the Holders of the Notes as the Guarantees endorsed
thereon, the obligation of the Company or any Guarantor, as applicable, which
is absolute and unconditional (and which, subject to the rights under this
Article of the holders of Senior Debt, is intended to rank equally with all
other general obligations of the Company), to pay to the Holders of the Notes
with the Guarantees endorsed thereon the principal of (and premium, if any) and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company or any Guarantor, as applicable, of the Holders of the Notes with the
Guarantees endorsed thereon and creditors of the Company or any Guarantor, as
applicable, other than the holders of Senior Debt, and Guarantor Senior Debt;
or (c) prevent the Trustee or the Holder of any Note as the Guarantees endorsed
thereon from exercising all remedies otherwise permitted by
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applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt and Guarantor Senior Debt
and Guarantor Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt or
Guarantor Senior Debt to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt or Guarantor Senior Debt may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Notes to the holders
of Senior Debt and Guarantor Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Debt or Guarantor Senior Debt, or otherwise amend
or supplement in any manner Senior Debt or Guarantor Senior Debt or any
instrument evidencing the same or any agreement
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under which Senior Debt or Guarantor Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt or Guarantor Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt or Guarantor
Senior Debt; and (iv) exercise or refrain from exercising any rights against
the Company, the Guarantors and any other Person.
SECTION 1309. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes or any of the Senior Subordinated
Guarantees. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Notes or any of the Senior Subordinated
Guarantees, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Debt or Guarantor Senior Debt or
from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt or Guarantor Senior Debt (or
a trustee therefor) to establish that such notice has been given by a holder of
Senior Debt or Guarantor Senior Debt (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Debt or Guarantor
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such
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Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt or Guarantor Senior Debt held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of the
Company or any Guarantor referred to in this Article, the Trustee, subject to
the provisions of Section 601, and the Holders of the Notes shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt or Guarantor Senior Debt and other
indebtedness of the Company or any Guarantor, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 1311. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt or Guarantor Senior Debt and shall not be liable to any
such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Notes or to the Company or any Guarantor or to any other Person
cash, property or securities to which any holders of
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Senior Debt or Guarantor Senior Debt shall be entitled by virtue of this
Article or otherwise.
SECTION 1312. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Debt or
Guarantor Senior Debt which may at any time be held by it, to the same extent
as any other holder of Senior Debt or Guarantor Senior Debt, and nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1313. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1312 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1314. Defeasance of this Article Thirteen.
The subordination of the Notes and the Senior Subordinated
Guarantees provided by this Article Thirteen is expressly made subject to the
provisions for defeasance or covenant defeasance in Article Fourteen hereof
and, anything herein to the contrary notwithstanding, upon the effectiveness of
any such defeasance or covenant defeasance,
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the Notes then outstanding and the Senior Subordinated Guarantees related
thereto shall thereupon cease to be subordinated pursuant to this Article
Thirteen.
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time,
in accordance with the Exchange and Registration Rights Agreement, elect to
have either Section 1402 or Section 1403 applied to the Outstanding Notes upon
compliance with the conditions set forth below in this Article Fourteen.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1401 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Notes, and the
provisions of Article Twelve and Thirteen hereof shall cease to be effective,
on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Notes and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), and (ii) the Guarantors shall be released from all of
their obligations under their Senior Subordinated Guarantees and under Article
Twelve of this Indenture except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Notes to receive, solely from the trust fund described in Section 1404 and
as more fully set forth in such Section, payments in respect of the principal
of (and
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premium, if any) and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 304, 305, 306,
1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Fourteen. Subject to compliance with
this Article Fourteen, the Company may exercise its option under this Section
1402 notwithstanding the prior exercise of its option under Section 1403.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1401 applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3), (4)
and (5) of Section 801, (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (1), (3), (4) or (5) of Section 801),
501(5) (with respect to any of Sections 1005 through 1018, inclusive), 501(6)
and 501(7) shall not be deemed to be an Event of Default and (iii) the
provisions of Article Thirteen hereof shall cease to be effective on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any reference in any such
Section, Clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to the then Outstanding Notes:
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(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Notes, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (, premium,
if any,) and each instalment of interest on the Notes on the Stated
Maturity of such principal or instalment of interest in accordance with
the terms of this Indenture and of such Notes. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality
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of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the
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Outstanding Notes will not recognize gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and will
be subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(3) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Notes will not recognize gain or
loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Notes, if then listed on
any securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of
the Company.
(6) At the time of such deposit: (A) no default in the payment
of all or a portion of
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principal of (or premium, if any) or interest on or other obligations in
respect of any Senior Debt shall have occurred and be continuing, and no
event of default with respect to any Senior Debt shall have occurred and
be continuing and shall have resulted in such Senior Debt becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable and (B) no other event of default
with respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or the lapse of time, or both) the holders of
such Senior Debt (or a trustee on behalf of the holders thereof) to
declare such Senior Debt due and payable prior to the date on which it
would otherwise have become due and payable, or, in the case of either
Clause (A) or Clause (B) above, each such default or event of default
shall have been cured or waived or shall have ceased to exist.
(7) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing.
(8) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of
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Counsel, each stating that all conditions precedent provided for
relating to either the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied
with.
(10) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1405. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1405, the "Trustee") pursuant to Section 1304 in
respect of the Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes, of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law. Money so held in trust shall
not be subject to the provisions of Article Twelve.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
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177
which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Fourteen 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 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 1402 or 1403 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Fourteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
1402 or 1403; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Note to receive such payment from the money held by the
Trustee or the Paying Agent.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
HOLLYWOOD THEATERS, INC.
By/s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
President
Attest:
/s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxxxx
Secretary
HOLLYWOOD THEATER HOLDINGS, INC.
By/s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
President
Attest:
/s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxxxx
Secretary
Crown Theatre Corporation
By/s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
President
Attest:
/s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxxxx
Secretary
179
U.S. TRUST COMPANY OF TEXAS, N.A.
By/s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Attest:
/s/ Xxxx Xxxxxxxx
------------------------
000
XXXXX XX XXXXX ) ss.:
COUNTY OF DALLAS )
On the 7th day of August, 1997, before me personally came Xxxxxx
X. Xxxxxxxxxx, Xx., to me known, who, being by me duly sworn, did depose and
say that he is President of Hollywood Theaters, Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Xxxxxxx Xxxxxxxx
--------------------------
Notary Public
STATE OF TEXAS ) ss.:
COUNTY OF DALLAS )
On the 7th day of August, 1997, before me personally came Xxxxxx
X. Xxxxxxxxxx, Xx., to me known, who, being by me duly sworn, did depose and
say that he is President of Hollywood Theater Holdings, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Xxxxxxx Xxxxxxxx
--------------------------
Notary Public
000
XXXXX XX XXXXX ) ss.:
COUNTY OF DALLAS )
On the 7th day of August, 1997, before me personally came Xxxxxx
X. Xxxxxxxxxx, Xx., to me known, who, being by me duly sworn, did depose and
say that he is President of Crown Theatre Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Xxxxxxx Xxxxxxxx
--------------------------
Notary Public
STATE OF TEXAS) ss.:
COUNTY OF DALLAS)
On the 7th day of August, 1997, before me personally came Xxxx
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of U.S. Trust Company of Texas, N.A., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Xxxxx X. Xxxxxxx
--------------------------
182
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 306(b)(i) of the Indenture)
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: 10 5/8% Senior Subordinated Notes due August 1, 2007 of
Hollywood Theaters, Inc. (the "Securities")
Reference is made to the Indenture, dated as of August 1, 1997
(the "Indenture"), from Hollywood Theaters, Inc. (the "Company"), the
Guarantors named therein, U.S. Trust Company of Texas, N.A., as Trustee. Terms
used herein and defined in the Indenture or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
-------------------------
CERTIFICATE No(s).
-------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Note, they
are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the
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183
Owner. If the Specified Securities are not represented by a Global Security,
they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form
of a Regulation S Note. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a person
acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made
to a person in the United States;
(C) either:
(i) at the time the buy order was originated,
the Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities market
and neither the Owner nor any person acting on its behalf
knows that the transaction has been prearranged with a
buyer in the United States;
X-0
000
(X) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other renumeration in
respect of the Specified Securities, and the transfer is to occur
during the Restricted Period, then the requirements of Rule
904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of
at least two years (computed in accordance with paragraph (d) of
Rule 144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a holding period of
at least three years has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Company.
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185
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated:
--------------------------------------------
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
-----------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
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186
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 306(b)(ii) of the Indenture)
U.S. Trust Company of Texas, N.A.,
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: 10 5/8% Senior Notes due August 1, 2007 of Hollywood
Theaters, Inc.(the "Securities")
Reference is made to the Indenture, dated as of August 1, 1997
(the "Indenture"), from Hollywood Theaters, Inc. (the "Company"), the
Guarantors named therein and U.S. Trust Company of Texas, N.A., as Trustee.
Terms used herein and defined in the Indenture or in Rule 144A or Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
----------------------------
ISIN No(s), If any.
---------------------
CERTIFICATE No(s).
----------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by
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187
a Global Note, they are held through the Depositary or an Agent Member in the
name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Note, they are registered in the
name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form
of a Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, (i) the Owner is not a U.S.
Person (as defined in the Indenture) and (ii) such transfer is being effected
in accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have
taken reasonable steps to ensure that the Transferee is aware
that the Owner may be relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of
at least two years (computed in accordance with paragraph (d) of
Rule 144) has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and is being effected in
B-2
188
accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(B) the transfer is occurring after a holding period of
at least three years has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated:
--------------------------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this
certificate.)
By:
-----------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
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189
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 306(c))
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: 10 5/8% Senior Subordinated Notes due August 1, 2007 of
Hollywood Theaters, Inc. (the "Securities")
Reference is made to the Indenture, dated as of August 1, 1997
(the "Indenture"), from Hollywood Theaters, Inc. (the "Company"), the
Guarantors named therein and U.S. Trust Company of Texas, N.A., as Trustee.
Terms used herein and defined in the Indenture or in Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).
----------------------------
CERTIFICATE No(s).
----------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Note, they
are held through the Depositary or an Agent
C-1
190
Member in the name of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global Note, they are registered
in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to Section
306(c) of the Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring after a holding period of at least two
years (computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company. The
Owner also acknowledges that any future transfers of the Specified Securities
must comply with all applicable securities laws of the states of the United
States and other jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated:
--------------------------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this
certificate.)
By:
-----------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
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191
ANNEX D -- Form of Certification to
Be Given by Holders of Beneficial
Interest in a Regulation S Temporary
Global Note
OWNER SECURITIES CERTIFICATION
HOLLYWOOD THEATRES, INC.
10 5/8% Senior Subordinated Notes due August 1, 2007
This is to certify that, as of the date hereof, $________ of the
above-captioned Notes are beneficially owned by non-U.S. person(s). As used in
this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Notes held by you for our account in accordance with your operating procedures
if any applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this certification
applies as of such date.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
Dated: ,
------------- -------
By:
----------------------------------------------
As, or as agent for, the beneficial owner(s)
of the Notes to which this certificate
relates.
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192
ANNEX E -- Form of Certification to
Be Given by the Euroclear Operator
or Cedel S.A.
DEPOSITARY SECURITIES CERTIFICATION
HOLLYWOOD THEATRES, INC.
10 5/8% Senior Subordinated Notes due August 1, 2007
This is to certify that, with respect to U.S.$___________
principal amount of the above-captioned Notes, except as set forth below, we
have received in writing, by tested telex or by electronic transmission, from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of Notes set forth above (our "Member
Organizations"), certifications with respect to such portion, substantially to
the effect set forth in the Indenture.(1)
We further certify (i) that we are not making available herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Regulation S Temporary Global Note (as defined in
the Indenture) excepted in such certifications and (ii) that as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
--------------------
(1) Unless Xxxxxx Guaranty Trust Company of New York, London Branch is other
wise informed by the Agent, the long form certificate set out in the
Operating Procedures will be deemed to meet the requirements of this
sentence.
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193
We understand that this certification is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ,
------------- -------
Yours faithfully,
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By
----------------------------------
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