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Exhibit 4
EXECUTION COPY
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REGAL CINEMAS, INC.,
Issuer
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
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Indenture
Dated as of May 27, 1998
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9 1/2% Senior Subordinated Notes due 2008
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
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ss. 310(a)(1)....................................... 7.10
(a)(2)....................................... 7.10
(b).......................................... 7.03; 7.08
ss. 311(a).......................................... 7.03
(b).......................................... 7.03
ss. 312(a).......................................... 2.04
(b).......................................... 10.02
(c).......................................... 10.02
ss. 313(a).......................................... 7.06
(b)(2)....................................... 7.07
(c).......................................... 7.05; 7.06; 11.02
(d).......................................... 7.06
ss. 314(a).......................................... 7.05; 11.02
(a)(4)....................................... 4.12; 11.02
(c)(1)....................................... 11.03
(c)(2)....................................... 11.03
(e).......................................... 4.12; 11.04
ss. 315(a).......................................... 7.02
(b).......................................... 7.05; 11.02
(c).......................................... 7.02
(d).......................................... 7.02
(e).......................................... 6.11
ss. 316(a)(1)(A).................................... 6.05
(a)(1)(B).................................... 6.04
(b).......................................... 6.07
(c).......................................... 9.03
ss. 317(a)(1)....................................... 6.08
(a)(2)....................................... 6.09
(b).......................................... 2.05
ss. 318(a).......................................... 11.01
(c).......................................... 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act................17
SECTION 1.03. Rules of Construction............................................18
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating..................................................19
SECTION 2.02. Restrictive Legends..............................................20
SECTION 2.03. Execution, Authentication and Denominations......................22
SECTION 2.04. Registrar and Paying Agent.......................................23
SECTION 2.05. Paying Agent to Hold Money in Trust..............................24
SECTION 2.06. Transfer and Exchange............................................24
SECTION 2.07. Book-Entry Provisions for Global Notes...........................25
SECTION 2.08. Special Transfer Provisions......................................27
SECTION 2.09. Replacement Notes................................................30
SECTION 2.10. Outstanding Notes................................................30
SECTION 2.11. Temporary Notes..................................................31
SECTION 2.12. Cancellation.....................................................31
SECTION 2.13. CUSIP Numbers....................................................31
SECTION 2.14. Defaulted Interest...............................................32
SECTION 2.15. Issuance of Additional Notes.....................................32
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption..............................................32
SECTION 3.02. Notices to Trustee...............................................33
SECTION 3.03. Selection of Notes to Be Redeemed................................33
SECTION 3.04. Notice of Redemption.............................................33
SECTION 3.05. Effect of Notice of Redemption...................................35
SECTION 3.06. Deposit of Redemption Price......................................35
SECTION 3.07. Payment of Notes Called for Redemption...........................35
SECTION 3.08. Notes Redeemed in Part...........................................35
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Note: The Table of Contents shall not for any purposes be deemed to be
a part of the Indenture.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.................................................36
SECTION 4.02. Maintenance of Office or Agency..................................36
SECTION 4.03. Fall-away Event..................................................37
SECTION 4.04. Limitation on Restricted Payments................................37
SECTION 4.05. Limitation on the Incurrence of Additional Indebtedness and
Issuance of Capital Stock...................................39
SECTION 4.06. Limitations on Transactions with Affiliates......................40
SECTION 4.07. Repurchase of Notes upon a Change of Control.....................41
SECTION 4.08. Existence........................................................42
SECTION 4.09. Payment of Taxes and Other Claims................................42
SECTION 4.10. Maintenance of Properties and Insurance..........................43
SECTION 4.11. Notice of Defaults...............................................43
SECTION 4.12. Compliance Certificates..........................................43
SECTION 4.13. Commission Reports and Reports to Holders........................44
SECTION 4.14. Waiver of Stay, Extension or Usury Laws..........................44
SECTION 4.15. Limitation on Layering...........................................45
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc......................................45
SECTION 5.02. Successor Substituted............................................46
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default................................................46
SECTION 6.02. Acceleration.....................................................47
SECTION 6.03. Other Remedies...................................................48
SECTION 6.04. Waiver of Past Defaults..........................................48
SECTION 6.05. Control by Majority..............................................49
SECTION 6.06. Limitation on Suits..............................................49
SECTION 6.07. Rights of Holders to Receive Payment.............................50
SECTION 6.08. Collection Suit by Trustee.......................................50
SECTION 6.09. Trustee May File Proofs of Claim.................................50
SECTION 6.10. Priorities.......................................................51
SECTION 6.11. Undertaking for Costs............................................51
SECTION 6.12. Restoration of Rights and Remedies...............................51
SECTION 6.13. Rights and Remedies Cumulative...................................51
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SECTION 6.14. Delay or Omission Not Waiver.....................................52
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General..........................................................52
SECTION 7.02. Certain Rights of Trustee........................................52
SECTION 7.03. Individual Rights of Trustee.....................................54
SECTION 7.04. Trustee's Disclaimer.............................................54
SECTION 7.05. Notice of Default................................................54
SECTION 7.06. Reports by Trustee to Holders....................................54
SECTION 7.07. Compensation and Indemnity.......................................54
SECTION 7.08. Replacement of Trustee...........................................55
SECTION 7.09. Successor Trustee by Merger, Etc.................................56
SECTION 7.10. Eligibility......................................................56
SECTION 7.11. Money Held in Trust..............................................57
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.............................57
SECTION 8.02. Defeasance and Discharge of Indenture............................58
SECTION 8.03. Defeasance of Certain Obligations................................60
SECTION 8.04. Application of Trust Money.......................................62
SECTION 8.05. Repayment to Company.............................................62
SECTION 8.06. Reinstatement....................................................62
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.......................................63
SECTION 9.02. With Consent of Holders..........................................63
SECTION 9.03. Revocation and Effect of Consent.................................64
SECTION 9.04. Notation on or Exchange of Notes.................................65
SECTION 9.05. Trustee to Sign Amendments, Etc..................................65
SECTION 9.06. Conformity with Trust Indenture Act..............................65
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Indebtedness.......................66
SECTION 10.02. No Payment on Notes in Certain Circumstances....................66
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SECTION 10.03. Payment over of Proceeds upon Dissolution, Etc..................68
SECTION 10.04. Subrogation.....................................................70
SECTION 10.05. Obligations of Company Unconditional............................70
SECTION 10.06. Notice to Trustee...............................................71
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating Agent..72
SECTION 10.08. Trustee's Relation to Senior Indebtedness.......................72
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness...........72
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination of Notes..73
SECTION 10.11. Not to Prevent Events of Default................................73
SECTION 10.12. Trustee's Compensation Not Prejudiced...........................73
SECTION 10.13. No Waiver of Subordination Provisions...........................73
SECTION 10.14. Payments May Be Paid Prior to Dissolution.......................73
SECTION 10.15. Consent of Holders of Senior Indebtedness Under
the Senior Credit Facilities...............................74
SECTION 10.16. Trust Moneys Not Subordinated...................................74
SECTION 10.17. Notice to Representative of Designated Senior Indebtedness......74
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939.....................................75
SECTION 11.02. Notices.........................................................75
SECTION 11.03. Certificate and Opinion as to Conditions Precedent..............76
SECTION 11.04. Statements Required in Certificate or Opinion...................76
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar.....................77
SECTION 11.06. Payment Date Other Than a Business Day..........................77
SECTION 11.07. Governing Law...................................................77
SECTION 11.08. No Adverse Interpretation of Other Agreements...................77
SECTION 11.09. No Recourse Against Others......................................77
SECTION 11.10. Successors......................................................78
SECTION 11.11. Duplicate Originals.............................................78
SECTION 11.12. Separability....................................................78
SECTION 11.13. Table of Contents, Headings, Etc................................78
EXHIBIT A Form of Note.......................................................A-1
EXHIBIT B Form of Certificate................................................B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Non-QIB Accredited Investors...............C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S...............................D-1
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INDENTURE, dated as of May 27, 1998, between REGAL CINEMAS, INC., a
Tennessee corporation (the "Company"), and IBJ XXXXXXXX BANK & TRUST COMPANY, a
New York banking corporation, trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of up to $400,000,000 aggregate
principal amount of the Company's 9 1/2% Senior Subordinated Notes due 2008 (the
"Notes") issuable as provided in this Indenture. All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms,
have been done, and the Company has done all things necessary to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, valid obligations of the Company as
hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER 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, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with the Company or any of
its Restricted Subsidiaries or assumed in connection with the acquisition of
assets from such Person and not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation.
"Acquired Preferred Stock" means the Preferred Stock of any Person at
such time as such Person becomes a Restricted Subsidiary of the Company or at
the time it merges or consolidates with the Company or any of its Restricted
Subsidiaries and not issued by such Person in connection with, or in
anticipation or contemplation of, such acquisition, merger or consolidation.
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"Act III" means Act III Cinemas, Inc., a Delaware corporation.
"Act III Merger" means the merger of Act III with and into the Company.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliate Transaction" has the meaning specified in Section 4.06.
"Agent" means any Registrar, Co-Registrar, Paying Agent, Transfer Agent
or authenticating agent.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) any transaction pursuant to which any
Person shall become a Restricted Subsidiary of the Company or shall be
consolidated or merged with the Company or any Restricted Subsidiary of the
Company or (ii) the acquisition by the Company or any Restricted Subsidiary of
the Company of assets of any Person comprising a division, line of business or
theatre site of such Person.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York, New York.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and (ii) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease to which such Person
is a party that is required to be classified and accounted for as a capital
lease obligation under GAAP, and for purposes of this
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definition, the amount of such obligation at any date shall be the capitalized
amount of such obligation at such date, determined in accordance with GAAP.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group") (whether or not otherwise in
compliance with the provisions of this Indenture), other than to Xxxxx Muse, KKR
or any of their respective officers or directors or any Affiliates of any of the
foregoing (the "Permitted Holders"); or (ii) the acquisition by any Person or
Group (other than the Permitted Holders or any direct or indirect subsidiary of
any Permitted Holder) of the power, directly or indirectly, to vote or direct
the voting of securities having more than 50% of the ordinary voting power for
the election of directors of the Company.
"Change of Control Offer" has the meaning provided in Section 4.07(a).
"Change of Control Payment Date" has the meaning provided in Section
4.07(c).
"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 TIA, then the body performing such duties at
such time.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman of the Board, its Chief Executive Officer, its
President, a Vice President or its Chief Financial Officer and (ii) by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; provided, however, that such written request or order
may be signed by any two officers or directors listed in clause (i) above in
lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Restricted Subsidiaries for such period plus, to the extent such
amount was deducted in calculating such net income (i) Consolidated Interest
Expense, (ii) income taxes, (iii) depreciation expense, (iv) amortization
expense, (v) all other non-cash items, extraordinary items, nonrecurring and
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unusual items and cumulative effects of changes in accounting principles
reducing such net income, less all non-cash items, extraordinary items,
nonrecurring and unusual items and cumulative effects of changes in accounting
principles increasing such net income, all as determined on a consolidated basis
for the Company and its Restricted Subsidiaries in conformity with GAAP; (vi)
upfront expenses resulting from equity offerings, investments, mergers,
recapitalizations, option buyouts, Dispositions, Asset Acquisitions and similar
transactions to the extent such expenses reduce net income; (vii) restructuring
charges reducing net income; and (viii) gains or losses on Dispositions;
provided that Consolidated EBITDA shall not include (x) the net income (or net
loss) of any Person that is not a Restricted Subsidiary, except (I) with respect
to net income, to the extent of the amount of dividends or other distributions
actually paid to the Company or any of its Restricted Subsidiaries by such
Person during such period and (II) with respect to net losses, to the extent of
the amount of investments made by the Company or any Restricted Subsidiary in
such Person during such period; (y) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to clause (iii) of
Section 4.04(a) (and in such case, except to the extent includable pursuant to
clause (x) above), the net income (or net loss) of any Person accrued prior to
the date it becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or all or substantially
all of the property and assets of such Person are acquired by the Company or any
of its Restricted Subsidiaries; and (z) the net income of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not at the
time permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary (other than any agreement or instrument
evidencing Indebtedness or Preferred Stock outstanding on the Issue Date or
incurred or issued thereafter in compliance with Section 4.05; provided that the
terms of any such agreement restricting the declaration and payment of dividends
or similar distributions apply only in the event of a default with respect to a
financial covenant or a covenant relating to payment (beyond any applicable
period of grace) contained in such agreement or instrument and provided such
terms are determined by the Company to be customary in comparable financings and
such restrictions are determined by the Company not to materially affect the
Company's ability to make principal or interest payments on the Notes when due).
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Swap
Agreements (including any amortization of discounts), (c) the interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid or accrued by such
Person and its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP; excluding, however, any amount of such interest
of any Restricted Subsidiary if the net income of
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such Restricted Subsidiary is excluded in the calculation of Consolidated EBITDA
pursuant to clause (z) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Consolidated EBITDA pursuant to clause (z) of the definition
thereof), all as determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with GAAP.
"Construction Indebtedness Amount" shall mean an amount equal to the
lesser of (i) $100 million and (ii) the total Indebtedness of any Person and its
Restricted Subsidiaries outstanding on the last day of any Reference Period
incurred in connection with the construction or enhancement of motion picture
theatres or screens that, on such day, are not open for business.
"Contemplated Acquisition" means the business combination, by the Act
III Merger or otherwise, of Act III and the Company.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Corporate
Administration and, in the event the Notes are listed on the Luxembourg Stock
Exchange, at Greffier et Chef du Tribunal d'Arrondissement de et a Luxembourg,
Chief Registrar of the District Court in Luxembourg.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Debt Rating" shall mean the rating assigned to the Notes by Xxxxx'x or
S&P, as the case may be.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depositary" means The Depository Trust Company, its nominees, and
their respective successors.
"Designated Preferred Stock" means preferred stock of the Company
(other than Disqualified Capital Stock) that is issued for cash (other than to a
Restricted Subsidiary) and is so designated as Designated Preferred Stock,
pursuant to an Officers' Certificate executed by the principal executive officer
and the principal financial officer of the Company, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in clause (iii) of Section 4.04(a).
"Designated Senior Indebtedness" means (i) all obligations under the
Senior Credit Facilities and (ii) any other Senior Indebtedness of the Company
which, at the date of
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determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof are committed to lend up to,
at least $25.0 million and is specifically designated by the Company in the
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, or transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets or Capital Stock.
"Disqualified Capital Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control if such Capital Stock requires that
the Change of Control Offer with respect to the Notes be completed prior to any
similar offer being made with respect to such Capital Stock), in whole or in
part, on or prior to the final maturity date of the Notes; provided that only
the portion of Capital Stock which so matures or is mandatorily redeemable or is
so redeemable at the sole option of the holder thereof prior to the final
maturity date of the Notes shall be deemed Disqualified Capital Stock.
"Equity Offering" means a private sale or public offering of Capital
Stock or preferred stock (other than Disqualified Capital Stock) of the Company.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Notes" means any securities of the Company containing terms
identical to the Notes (except that such Exchange Notes shall be registered
under the Securities Act) that are issued and exchanged for the Notes pursuant
to the Registration Rights Agreement and this Indenture.
"Existing Regal Notes" means the Company's 8 1/2% Senior Subordinated
Notes due October 1, 2007.
"GAAP" means generally accepted accounting principles in the United
States of America, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or the Commission or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and
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computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP as in effect on the date hereof.
"Global Notes" has the meaning provided in Section 2.01.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Xxxxx Muse" means Hicks, Muse, Xxxx & Xxxxx Incorporated.
"Holder" or "Noteholder" means the registered holder of any Note.
"Indebtedness" means with respect to any Person, without duplication,
any liability of such Person (i) for borrowed money, (ii) evidenced by bonds,
debentures, notes or other similar instruments, (iii) constituting Capitalized
Lease Obligations, (iv) incurred or assumed as the deferred purchase price of
property or services, or pursuant to conditional sale obligations and title
retention agreements (but excluding trade accounts payable arising in the
ordinary course of business), (v) for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction, (vi) for
Indebtedness of others guaranteed by such Person, (vii) for Interest Swap
Agreements, Commodity Agreements and Currency Agreements and (viii) for
Indebtedness of any other Person of the type referred to in clauses (i) through
(vii) which is secured by any Lien on any property or asset of such first
referred to Person, the amount of such Indebtedness being deemed to be the
lesser of the value of such property or asset or the amount of the Indebtedness
so secured. The amount of Indebtedness of any Person at any date shall be (i)
the outstanding principal amount of all unconditional obligations described
above, as such amount would be calculated in accordance with GAAP, (ii) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount and (iii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking firm or consultant to Persons engaged in the motion picture
exhibition and distribution business of nationally recognized standing that is,
in the judgment of the Company's Board of Directors, qualified to perform the
task for which it has been engaged.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
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"Interest Payment Date" means each semiannual interest payment date on
June 1 and December 1 of each year, commencing December 1, 1998.
"Interest Swap Agreements" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge or arrangement.
"Investment Grade Status" exists as of a date and thereafter if at such
date either (i) the Debt Rating of Xxxxx'x is at least Baa3 (or the equivalent)
or higher or (ii) the Debt Rating of S&P is at least BBB--(or the equivalent)
or higher.
"Issue Date" means the date of original issuance of the Notes.
"KKR" means Kohlberg Kravis Xxxxxxx & Co. L.P.
"Leverage Ratio" means the ratio of (i) the aggregate outstanding
amount of Indebtedness (excluding any Construction Indebtedness Amount and net
of any cash and cash equivalents) of the Company and its Restricted Subsidiaries
on a consolidated basis in accordance with GAAP plus the aggregate liquidation
preference of all Disqualified Capital Stock of such Person and all Preferred
Stock of Restricted Subsidiaries of such Person (other than any such
Disqualified Capital Stock or Preferred Stock held by such Person or any of its
Restricted Subsidiaries) on such date to (ii) the aggregate amount of
Consolidated EBITDA for the most recent four full fiscal quarters (the "Four
Quarter Period") for which financial statements of the Company have been filed
with the Commission or delivered to the Trustee pursuant to Section 4.13. The
Four Quarter Period shall be hereinafter referred to as the "Reference Period."
For purposes of this definition, the aggregate outstanding principal
amount of Indebtedness or aggregate liquidation preference of Preferred Stock of
the Person and its Restricted Subsidiaries for which such calculation is made
shall be determined on a pro forma basis as if the Indebtedness or Preferred
Stock giving rise to the need to perform such calculation had been incurred and
the proceeds therefrom had been applied, and all other transactions in respect
of which such Indebtedness or Preferred Stock is being incurred has occurred, on
the last day of the Reference Period. In addition to the foregoing, for purposes
of this definition, "Consolidated EBITDA" shall be calculated on a pro forma
basis after giving effect to (i) the Transactions, (ii) the incurrence of the
Indebtedness or Preferred Stock of such Person and its Restricted Subsidiaries
(and the application of the proceeds therefrom) giving rise to the need to make
such calculation and any incurrence (and the application of the proceeds
therefrom) or repayment of other Indebtedness or Preferred Stock, other than the
incurrence or repayment of Indebtedness pursuant to working capital facilities,
at any time subsequent to the beginning of the Reference Period and on or prior
to the date of determination, as if such incurrence (and the application of the
proceeds thereof), or the repayment, as the case may be, occurred on the first
day of the Reference Period, (iii) any Dispositions, Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise
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to the need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person that becomes a Restricted Subsidiary as a
result of such Asset Acquisition) incurring, assuming or otherwise becoming
liable for Indebtedness or Preferred Stock) or Theatre Completions at any time
on or subsequent to the first day of the Reference Period and on or prior to the
date of determination, as if such Disposition, Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness or Preferred Stock
and also including any Consolidated EBITDA associated with such Asset
Acquisition) or Theatre Completion occurred on the first day of the Reference
Period, (iv) the effects of incremental contributions to Consolidated EBITDA the
Company reasonably believes in good faith could have been achieved during the
Reference Period as a result of such Asset Acquisition or Theatre Completion
(regardless of whether such incremental contributions could then be reflected in
pro forma financial statements under GAAP, Regulation S-X promulgated by the
Commission or any other regulation or policy of the Commission); provided,
however, that such incremental contributions were identified and quantified in
good faith in an Officers' Certificate delivered to the Trustee at the time of
any calculation of the Leverage Ratio and (v) any motion picture theatre that
was permanently closed for business at any time on or subsequent to the first
day of the Reference Period and on or prior to the date of determination as if
such theatre was closed on the first day of the Reference Period. In calculating
"Consolidated Interest Expense" for purposes of the calculation of "Consolidated
EBITDA," (i) interest on Indebtedness determined on a fluctuating basis as of
the date of determination (including Indebtedness actually incurred on the date
of the transaction giving rise to the need to calculate the Leverage Ratio) and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness as in effect on the date of determination and (ii) notwithstanding
(i) above, interest determined on a fluctuating basis, to the extent such
interest is covered by Interest Swap Agreements that will remain in effect for
at least 12 months, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements. For purposes of
calculating the Consolidated EBITDA associated with any Theatre Completion, the
amount thereof for the Reference Period shall be the amount of Consolidated
EBITDA expected by the Company in good faith to be derived by the Company from
such Theatre Completion during the first 12-month period following the date on
which the relevant theatre or screen opens for business.
"Lien" means, with respect to any asset, any lien, mortgage, deed of
trust, pledge, security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"Non-U.S. Person" means a person who is not a "U.S. person" (as defined
in Regulation S).
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"Note Obligations" means all Obligations relating to the Notes,
including, without limitation, all principal, premium, if any, interest
(including, without limitation, any additional amounts payable with respect to
the Notes as a result of the failure to comply with the terms of the
Registration Rights Agreement).
"Notes" means any of the securities, as defined in the first paragraph
of the recitals hereof, that are authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Notes" shall include
the Notes initially issued on the Issue Date, any Exchange Notes to be issued
and exchanged for any Notes pursuant to the Registration Rights Agreement and
this Indenture and any other Notes issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Notes shall vote together as one
series of Notes under this Indenture.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing, or otherwise relating to, any
Indebtedness.
"Officer" means, with respect to the Company, (i) the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof or two officers listed in clause (i) of the
definition thereof. Each Officers' Certificate shall include the statements
provided for in TIA Section 314(e) to the extent applicable.
"Offshore Global Note" has the meaning provided in Section 2.01.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.04 hereof. The counsel may be an employee of or counsel to the Company. Each
such Opinion of Counsel shall include the statements provided for in TIA Section
314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Payment Blockage Period" has the meaning provided in Section 10.02.
"Permitted Indebtedness" means, without duplication, (i) Indebtedness
outstanding on the Issue Date (including the Existing Regal Notes); (ii)
Indebtedness of the Company and any of its
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Restricted Subsidiaries incurred under the Senior Credit Facilities (including
letter of credit obligations), provided that the aggregate principal amount at
any time outstanding does not exceed $725.0 million, which amount shall be
increased to $1.22 billion upon the consummation of the Contemplated
Acquisition; (iii) Indebtedness evidenced by or arising under the Notes and this
Indenture in respect of the Notes; (iv) Interest Swap Agreements, Commodity
Agreements and Currency Agreements; provided, however, that such agreements are
entered into for bona fide hedging purposes and not for speculative purposes;
(v) additional Indebtedness of the Company or any of its Restricted Subsidiaries
not otherwise permitted under Section 4.05 of this Indenture, in an aggregate
principal amount, which when aggregated with the aggregate principal amount of
all other Indebtedness then outstanding and incurred pursuant to this clause
(v), does not at any one time outstanding exceed the sum of (x) $100.0 million
and (y) 100% of the net cash proceeds received by the Company from the issue or
sale after the Issue Date of Capital Stock (other than Disqualified Capital
Stock) of the Company or net cash proceeds contributed to the capital of the
Company (other than in respect of Disqualified Capital Stock) as determined in
accordance with clauses (iii)(b) and (iii)(c) of Section 4.04(a) to the extent
such net cash proceeds have not been applied pursuant to such clause to make
Restricted Payments or to effect other transactions pursuant to Section 4.04(b)
(it being understood that any Indebtedness incurred under this clause (v) shall
cease to be deemed incurred or outstanding for purposes of this clause (v) from
and after the first date on which the Company could have incurred such
Indebtedness under Section 4.05 without reliance upon this clause (v), and such
Indebtedness shall thereupon be deemed to have been so incurred); (vi)
Refinancing Indebtedness (other than in respect of Indebtedness incurred
pursuant to clauses (ii), (v) and (xiii) of this definition); (vii) Indebtedness
owed by the Company to any Restricted Subsidiary of the Company (so long as it
shall remain a Restricted Subsidiary of the Company) or by any Restricted
Subsidiary (so long as it remains a Restricted Subsidiary of the Company) of the
Company to the Company or any Restricted Subsidiary of the Company; (viii)
guarantees by the Company or Restricted Subsidiaries of any Indebtedness
permitted to be incurred pursuant to this Indenture; (ix) Indebtedness in
respect of performance bonds, reimbursement obligations with respect to letters
of credit, bankers' acceptances, completion guarantees and surety or appeal
bonds provided by the Company or any of its Restricted Subsidiaries in the
ordinary course of their business or Indebtedness with respect to reimbursement
type obligations regarding workers' compensation claims; (x) Indebtedness
arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in each case incurred in
connection with the disposition of any business assets or Subsidiaries of the
Company (other than guarantees of Indebtedness or other obligations incurred by
any Person acquiring all or any portion of such business assets or Restricted
Subsidiaries of the Company for the purpose of financing such acquisition) in a
principal amount not to exceed the gross proceeds, including non-cash proceeds,
actually received by the Company or any of its Restricted Subsidiaries in
connection with such disposition; provided, however, that such Indebtedness is
not reflected on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements and
not otherwise reflected on the balance sheet will not be
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deemed to be reflected on such balance sheet for purposes of this clause); (xi)
Indebtedness (including but not limited to Capitalized Lease Obligations,
mortgage financings or purchase money obligations) incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property or assets (whether through direct purchase of assets or
the Capital Stock of any Person owning such assets) or incurred to refinance any
such purchase price or cost of construction or improvement; (xii) Indebtedness
or Disqualified Capital Stock of Persons that are acquired by the Company or any
of its Restricted Subsidiaries or merged into a Restricted Subsidiary in
accordance with the terms of this Indenture; provided, however, that such
Indebtedness or Disqualified Capital Stock is not incurred in contemplation of
such acquisition or merger; and provided further that after giving effect to
such acquisition or merger, either (i) the Company would be permitted to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
under Section 4.05(a) or (ii) the Leverage Ratio is less than immediately prior
to such acquisition or merger; and (xiii) Indebtedness incurred in connection
with any Real Estate Financing Transaction; provided, however, that the amount
of Indebtedness outstanding under clause (ii) above and this clause (xiii) shall
not exceed $725.0 million (which amount shall be increased to $1.22 billion upon
consummation of the Contemplated Acquisition) at any time outstanding.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"principal" of a debt security, including the Notes, means the
principal amount due on the stated maturity as shown on such debt security.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in Section 2.02.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Real Estate Financing Transaction" means a financing or series of
financings consisting principally of one or more mortgage financings, real
estate sale or leaseback transactions or an asset-backed program based on real
estate owned by the Company or any of its Subsidiaries (funded by the issuance
of commercial paper, medium term notes or other forms of borrowing and
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including credit enhancement facilities), and which may consist of or include
such other forms of financing consistent with the foregoing as the Board of
Directors shall approve in good faith, in each case as such financing or
financings may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including any amendment
extending the maturity of, refinancing, replacing or otherwise restructuring all
or any portion of the Indebtedness under such financing or financings or any
successor or replacement agreement and whether including the same or any other
lender or group of lenders, and whether including or replacing as borrowers or
guarantors one or more Subsidiaries of the Company.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or in accordance with this
Indenture.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price at which such Note is to be redeemed in accordance with this
Indenture.
"Refinancing Indebtedness" means any refinancing by the Company or its
Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted
Subsidiaries incurred in accordance with Section 4.05 that does not (i) result
in an increase in the aggregate principal amount of Indebtedness (such principal
amount to include, for purposes of this definition, any premiums, fees,
penalties or accrued interest paid with the proceeds of the Refinancing
Indebtedness) of such Person or (ii) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to Maturity
of the Indebtedness being refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being refinanced.
"Refunding Capital Stock" has the meaning provided in Section 4.04(b).
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated May 27, 1998, between the Company and Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and Xxxxxxx,
Sachs & Co. and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 or November 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
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"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, any assistant 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 in its corporate trust department 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 or her knowledge of and
familiarity with the particular subject.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Senior Indebtedness; provided, however, that
if, and for so long as, any issue of Senior Indebtedness lacks such a
representative, then the Representative for such issue of Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such issue of Senior Indebtedness.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock or in options, rights or
warrants to acquire Qualified Capital Stock or dividends or distributions by a
Restricted Subsidiary so long as in the case of any dividend or distribution
payable on or in respect of any class or series of Capital Stock issued by a
Subsidiary other than a Wholly Owned Subsidiary, the Company or a Restricted
Subsidiary receives at least its pro rata share of such dividend or distribution
in accordance with its Capital Stock) on shares of the Company's Capital Stock,
or (ii) the purchase, redemption, retirement or other acquisition for value of
any Capital Stock of the Company, or any warrants, rights or options to acquire
shares of Capital Stock of the Company, other than through the exchange of such
Capital Stock or any warrants, rights or options to acquire shares of any class
of such Capital Stock for Qualified Capital Stock or warrants, rights or options
to acquire Qualified Capital Stock.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The Board of Directors may designate any
Unrestricted Subsidiary or any person that is to become a Subsidiary as a
Restricted Subsidiary if, immediately after giving effect to such action (and
treating any Acquired Indebtedness as having been incurred at the time of such
action), the Company could have incurred at least $1.00 of additional
indebtedness under the first paragraph of Section 4.05 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor to the rating agency business
thereof.
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"Secured Indebtedness" means any Indebtedness of the Company or a
Restricted Subsidiary secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04.
"Senior Credit Facilities" means the credit facilities under that
certain Credit Agreement dated as of the date hereof, among the Company and The
Bank of Nova Scotia, as administrative agent and collateral agent, BancAmerica
Xxxxxxxxx Xxxxxxxx, as syndication agent, The Chase Manhattan Bank, as
documentation agent, and the other financial institutions from time to time
party thereto, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending or shortening the maturity of, refinancing, replacing or
otherwise restructuring (including by way of adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder or increasing the amount of
Indebtedness thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders (or other institutions).
"Senior Indebtedness" means, whether outstanding on the Issue Date or
thereafter issued, all Indebtedness of the Company, including interest
(including interest accruing on or after the filing of, or which would have
accrued but for the filing of, any petition in bankruptcy or for reorganization
relating to the Company or any Restricted Subsidiary whether or not a claim for
post-filing interest is allowed in such proceeding) and premium, if any,
thereon, and other monetary amounts (including fees, expenses, reimbursement
obligations under letters of credit and indemnities) owing in respect thereof
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that the obligations in respect of such
Indebtedness ranks pari passu with the Notes; provided, however, that Senior
Indebtedness will not include (1) any obligation of the Company to any
Restricted Subsidiary, (2) any liability for federal, state, foreign, local or
other taxes owed or owing by the Company, (3) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness, Guarantee or obligation of the Company that is expressly
subordinate or junior in right of payment to any other Indebtedness, Guarantee
or obligation of the Company, including any Note Obligations and the Existing
Regal Notes or (5) obligations in respect of any Capital Stock.
"Senior Subordinated Indebtedness" means the Notes and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank pari passu with the Notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of the
Company which is not Senior Indebtedness.
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"Significant Restricted Subsidiary" means any Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date.
"Subsidiary", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, through one or more
intermediaries, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or indirectly, through one or more intermediaries, owned by such
Person. Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to financial
information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its Subsidiaries as to which financial
statements are prepared on a combined basis in accordance with GAAP and to
financial information prepared on such a combined basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall not
be deemed to be a Restricted Subsidiary for purposes of this Indenture.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Theatre Completion" means any motion picture theatre or screen or
enhancement which was first opened for business during any applicable period.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code xx.xx. 77aaa-77bbbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
"Total Assets" means the total consolidated assets of the Company and
its Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Transaction Date" means, with respect to the incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
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"Unrestricted Subsidiary" means a Subsidiary of the Company created
after the Issue Date and so designated by a resolution adopted by the Board of
Directors; provided, however, that (a) neither the Company nor any of its other
Restricted Subsidiaries (1) provides any credit support for any Indebtedness or
other Obligations of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (2) is directly or indirectly liable
for any Indebtedness or other Obligations of such Subsidiary and (b) at the time
of designation of such Subsidiary, such Subsidiary has no property or assets
(other than de minimis assets resulting from the initial capitalization of such
Subsidiary). The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation (x) the Company could incur $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this Indenture and (y)
no Default or Event of Default shall have occurred or be continuing. Any
designation pursuant to this definition by the Board of Directors shall be
evidenced to the Trustee by the filing with the Trustee of a certified copy of
the resolution of the Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Global Notes" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or shares owned by foreign
nationals to the extent mandated by applicable law) by such Person or one or
more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
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"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of
GAAP set forth in Section 1.01; and
(viii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
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ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. The Notes and the Trustee's certificate
of authentication shall be substantially in the form annexed hereto as Exhibit A
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange agreements to which the
Company is subject. Each Note shall be dated the date of its authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "U.S. Global Notes"),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more temporary
global Notes in registered form substantially in the form set forth in Exhibit A
(the "Temporary Offshore Global Notes"), registered in the name of the nominee
of the Depositary, deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Offshore Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided. At any time after the 40th day following the later of commencement of
the offering of the Notes and the Issue Date, upon receipt by the Trustee and
the Company of a certificate substantially in the form of Exhibit B hereto, one
or more permanent global Notes in registered form substantially in the form set
forth in Exhibit A (the "Permanent Offshore Global Notes"; and together with the
Temporary Offshore Global Notes, the "Offshore Global Notes") duly executed by
the Company and authenticated by the Trustee as hereinafter provided shall be
deposited with the Trustee, as custodian for the Depositary or its nominee, and
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Temporary Offshore Global Notes in an amount equal
to the principal amount of the beneficial interest in the Temporary Offshore
Global Notes transferred.
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Notes offered and sold to Institutional Accredited Investors shall be
issued in the form of permanent certificated Notes in registered form in
substantially the form set forth in Exhibit A (the "U.S. Physical Notes").
Notes issued pursuant to Section 2.07 in exchange for interests in the
Offshore Global Notes shall be in the form of permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Notes
and the Offshore Global Notes are sometimes referred to herein as the "Global
Notes."
The definitive Notes shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Restrictive Legends. Unless and until a Note is exchanged
for an Exchange Note or otherwise sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, (i) the
U.S. Global Notes and U.S. Physical Notes shall bear the legend set forth below
on the face thereof and (ii) the Offshore Physical Notes and Offshore Global
Notes shall bear the legend set forth below on the face thereof until at least
the 41st day after the Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Exhibit B hereto, and the
Temporary Offshore Global Notes shall bear the legend set forth below on the
face thereof.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) TO
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A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE
TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY
AS IS REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION S 2.01, 2.06, 2.07 AND 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Subject to
Article Four and applicable law, the aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. The Notes
shall be executed by two Officers of the Company. The signature of these
Officers on the Notes may be by facsimile or manual signature in the name and on
behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Notes in the aggregate principal
amount specified in such Company Order; provided that the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company in connection with such authentication of Notes. Such Company Order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in case of an issuance of
Notes pursuant to Section 2.15, shall certify that such issuance is in
compliance with Article Four.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
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The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple
thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain
one or more offices or agencies where Notes may be presented for registration of
transfer or for exchange (each a "Transfer Agent" and such Transfer Agent in the
Borough of Manhattan, The City of New York, the "Registrar"), one or more
offices or agencies where Notes may be presented for payment (each a "Paying
Agent") and an office or agency where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served, one of which in each
case shall be in the Borough of Manhattan, The City of New York and, so long as
the Notes are listed on the Luxembourg Stock Exchange, one of which shall be in
Luxembourg. The Company shall cause the Registrar to keep a register of the
Notes and of their transfer and exchange (the "Security Register"). The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or Transfer Agent, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. The Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee as of each Regular Record Date and at such other
times as the Trustee may reasonably request the names and addresses of Holders
as they appear in the Security Register, including the aggregate principal
amount of Notes held by each Holder.
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SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than 11:00
a.m. (New York City time) each due date of the principal, premium, if any, and
interest on any Notes, the Company shall deposit with one or more Paying Agents
money in immediately available funds sufficient to pay such principal, premium,
if any, and interest so becoming due. The Company shall require each Paying
Agent other than the Trustee to agree in writing that such Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal of, premium, if any, and interest
on the Notes (whether such money has been paid to it by the Company or any other
obligor on the Notes), and such Paying Agent shall promptly notify the Trustee
of any default by the Company (or any other obligor on the Notes) in making any
such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to
the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of
any of them acts as a Paying Agent, it will, on or before each due date of any
principal of, premium, if any, or interest on the Notes, segregate and hold in a
separate trust fund for the benefit of the Holders a sum of money sufficient,
with monies held by all other Paying Agents, to pay such principal, premium, if
any, or interest so becoming due until such sum of money shall be paid to such
Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee of its action or failure to act.
SECTION 2.06. Transfer and Exchange. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application to the
Registrar or another Transfer Agent stating the name of the proposed transferee
and otherwise complying with the terms of this Indenture. No such transfer shall
be effected until, and such transferee shall succeed to the rights of a Holder
only upon, final acceptance and registration of the transfer by the Registrar in
the Security Register. Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee, and any agent of the Company shall
treat the person in whose name the Note is registered as the owner thereof for
all purposes whether or not the Note shall be overdue, and neither the Company,
the Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or another Transfer Agent with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations (including an exchange of Notes for Exchange Notes),
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met (including that such Notes are
duly endorsed or accompanied by a written instrument of transfer duly executed
by the Holder thereof or by an attorney who is authorized in writing to act on
behalf of the Holder); provided that no exchanges of Notes for Exchange Notes
shall occur until a Registration
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Statement shall have been declared effective by the Commission and that any
Notes that are exchanged for Exchange Notes shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange or redemption
of the Notes, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 2.11, 3.08 or 9.04).
Neither the Registrar nor any other Transfer Agent shall 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 3.03 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.
SECTION 2.07. Book-Entry Provisions for Global Notes. (a) The U.S.
Global Notes and Offshore Global Notes initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.08. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the Offshore Global
Notes, as the case may be, if (i) the Company notifies the Trustee in writing
that the Depositary it no longer willing or able to act as Depositary or the
Depositary ceases to be registered as a clearing agency under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of the Notes in definitive form under this
Indenture, (iii) an Event of Default has occurred
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and is continuing and the Registrar has received a request from the Depositary
or (iv) in accordance with the rules and procedures of the Depositary and the
provisions of Section 2.08.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in another
Global Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in such other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other procedures applicable
to beneficial interests in such other Global Note for as long as it remains such
an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Note to beneficial owners pursuant to paragraph (b) of
this Section 2.07, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount equal to
the principal amount of the beneficial interest in such Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Notes or Offshore Physical Notes, as the
case may be, of like tenor and amount.
(e) In connection with the transfer of the U.S. Global Notes or the
Offshore Global Notes, in whole, to beneficial owners pursuant to paragraph (b)
of this Section 2.07, the U.S. Global Notes or Offshore Global Notes, as the
case may be, shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Notes or Offshore Global Notes, as the
case may be, an equal aggregate principal amount of U.S. Physical Notes or
Offshore Physical Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Notes pursuant to paragraph (b), (d) or (e) of this Section 2.07
shall, except as otherwise provided by paragraph (e) of Section 2.08, bear the
legend regarding transfer restrictions applicable to the U.S. Physical Note set
forth in Section 2.02.
(g) Any Offshore Physical Note delivered in exchange for an interest in
the Offshore Global Notes pursuant to paragraph (b), (d) or (e) of this Section
2.07 shall, except as otherwise provided by paragraph (e) of Section 2.08, bear
the legend regarding transfer restrictions applicable to the Offshore Physical
Note set forth in Section 2.02.
(h) The registered holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
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SECTION 2.08. Special Transfer Provisions. Unless and until a Note is
exchanged for an Exchange Note or otherwise sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the time period referred to in Rule 144(k)
under the Securities Act or (y) the proposed transferee has delivered
to the Registrar (A) a certificate substantially in the form of Exhibit
C hereto and (B) if the aggregate principal amount of the Notes being
transferred is less than $100,000, an opinion of counsel acceptable to
the Company that such transfer is in compliance with the Securities
Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Notes, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) above
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Notes in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Notes to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more U.S. Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) either
Offshore Physical Notes prior to the removal of the Private Placement
Legend or U.S. Physical Notes, the Registrar shall register the
transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A
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or (y) an interest in the U.S. Global Notes, the transfer of such
interest may be effected only through the book entry system maintained
by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Note to be transferred consists of U.S. Physical Notes, upon receipt by
the Registrar of the documents referred to in paragraph (i) above and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of U.S. Global
Notes in an amount equal to the principal amount of the U.S. Physical
Notes to be transferred, and the Trustee shall cancel the U.S. Physical
Notes so transferred.
(c) Transfers of Interests in the Temporary Offshore Global Notes. The
following provisions shall apply with respect to registration of any proposed
transfer of an interest in a Temporary Offshore Global Notes:
(i) The Registrar shall register the transfer of any Note (x)
if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Registrar of the documents referred to in clause (i)(y)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
U.S. Global Notes in an amount equal to the principal amount of the
Temporary Offshore Global Notes to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Notes.
(d) Transfers of Interests in the Permanent Offshore Global Notes or
Unlegended Offshore Physical Notes. The following provisions shall apply with
respect to any transfer of
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interests in Permanent Offshore Global Notes or unlegended Offshore Physical
Notes. The Registrar shall register the transfer of any such Note without
requiring any additional certification.
(e) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Note to a Non-U.S. Person:
(i) Prior to the 41st day following the later of commencement
of the offering of the Notes and the Issue Date, the Registrar shall
register any proposed transfer of a Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form of Exhibit D hereto
from the proposed transferor.
(ii) On and after the 41st day following the later of
commencement of the offering of the Notes and the Issue Date, the
Registrar shall register any proposed transfer to any Non-U.S. Person
if the Note to be transferred is a U.S. Physical Note or an interest in
U.S. Global Notes, upon receipt of a certificate substantially in the
form of Exhibit D hereto from the proposed transferor.
(iii) (a) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Notes, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph (ii)
and (y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Notes in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Notes to be transferred, and (b)
if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Offshore Global Notes in an amount equal to the principal amount of the
U.S. Physical Notes or the U.S. Global Notes, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Note, if any, so
transferred or decrease the amount of the U.S. Global Notes.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by the fourth paragraph of
Section 2.01 or (a)(i)(x) or (e)(ii) of this Section 2.08 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
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(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such Note set forth in
this Indenture. The Registrar shall be entitled to receive and rely on written
instructions from the Company verifying that such transfer complies with such
restrictions on transfer. In connection with any transfer of Notes, each Holder
agrees by its acceptance of the Notes to furnish the Registrar or the Company
such certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, 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
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding;
provided that the requirements of this Section 2.09 are met. If required by the
Company, an indemnity bond must be furnished that is sufficient in the judgment
of the Company to protect the Company, the Trustee or any Agent from any loss
that any of them may suffer if a Note is replaced. The Company may charge such
Holder for its expenses and the expenses of the Trustee in replacing a Note. In
case any such mutilated, lost, destroyed or wrongfully taken Note has become or
is about to become due and payable, the Company in its discretion may pay such
Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
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If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one of
its Subsidiaries holds such Note, 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
Subsidiaries 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 has actual
knowledge 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 Subsidiaries of the Company or of such other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the temporary
Notes, as evidenced by their execution of such temporary Notes. If temporary
Notes are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.12. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. Each Transfer Agent and
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation and shall destroy them in
accordance with its normal procedure.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the Company
and the Trustee shall use
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CUSIP, CINS or ISIN numbers, as the case may be, in notices of redemption or
exchange as a convenience to Holders; provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Notes. The Company shall promptly notify the Trustee of any change in
"CUSIP", "CINS" or "ISIN" numbers for the Notes.
SECTION 2.14. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.14 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.15. Issuance of Additional Notes. The Company may, subject to
Article Four of this Indenture and applicable law, issue additional Notes under
this Indenture. The Notes issued on the Closing Date and any additional Notes
subsequently issued shall be treated as a single class for all purposes under
this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. (a) The Notes are redeemable, at the
Company's option, in whole or in part, at any time or from time to time, on or
after June 1, 2003 and prior to maturity, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's last address (and
so long as the Notes are listed on the Luxembourg Stock Exchange, publication of
notice in Luxembourg), as it appears in the Security Register, at the following
Redemption Prices (expressed in percentages of principal amount thereof on the
applicable Redemption Date), plus accrued and unpaid interest to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing June 1 of the
years set forth below:
Redemption
Year Price
---- ----------
2003..................................104.750%
2004..................................103.167
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2005....................................... 101.583
2006 and thereafter........................ 100.000
(b) In addition, at any time and from time to time prior to June 1,
2001, the Company may, at its option, redeem up to 35% of the aggregate
principal amount of the Notes originally issued with the proceeds of one or more
Equity Offerings, at a Redemption Price (expressed as a percentage of principal
amount) of 109.50%, plus accrued and unpaid interest to the Redemption Date
(subject to the rights of Holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest due on an Interest
Payment Date); provided that (i) at least 65% of Notes initially issued remains
outstanding after each such redemption and (ii) any such redemption shall occur
on or prior to the date that is 90 days after receipt by the Company of the
proceeds of an Equity Offering. The Company shall effect such redemption on a
pro rata basis.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem Notes
pursuant to Section 3.01, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed and the clause
of this Indenture pursuant to which redemption shall occur.
The Company shall give each notice provided for in this Section 3.02 in
an Officers' Certificate at least 45 days before the Redemption Date (unless a
shorter period shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Notes to Be Redeemed. If less than all of
the Notes are to be redeemed at any time, the Trustee shall select the Notes to
be redeemed in compliance with the requirements, as certified to it by the
Company, of the principal national securities exchange, if any, on which the
Notes are listed or, in the absence of such requirements or if the Notes are not
listed on a national securities exchange, on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem fair and
appropriate; provided that no Note of $1,000 in principal amount or less shall
be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption. The Trustee may select for redemption portions
(equal to $1,000 in principal amount or any integral multiple thereof) of Notes
that have denominations larger than $1,000 in principal amount. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption. The Trustee shall notify the Company and the
Registrar promptly in writing of the Notes or portions of Notes to be called for
redemption.
SECTION 3.04. Notice of Redemption. With respect to any redemption of
Notes pursuant to Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail to each Holder whose Notes are to be redeemed at its registered
address and shall publish such notice in Luxembourg at Greffier et
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Chef du Tribunal d'Arrondissement de et a Luxembourg, Chief Registrar of the
District Court in Luxembourg.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of each Paying Agent;
(iv) that Notes called for redemption must be surrendered to a
Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the Redemption Price plus accrued
interest to the Redemption Date upon surrender of the Notes to a Paying
Agent;
(vi) that, if any Note is being redeemed in part, the portion
of the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will
be reissued; and
(vii) that, if any Note contains a CUSIP, CINS or ISIN number
as provided in Section 2.13, no representation is being made as to the
correctness of the CUSIP, CINS or ISIN number either as printed on the
Notes or as contained in the notice of redemption and that reliance may
be placed only on the other identification numbers printed on the
Notes.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
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SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption
is mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to a Paying Agent,
such Notes shall be paid at the Redemption Price, plus accrued interest, if any,
to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Notes held by Holders to whom such notice was properly
given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with its Paying Agents not later than
11:00 a.m. (New York City time) (or, if the Company is acting as its own Paying
Agent, shall segregate and hold in trust as provided in Section 2.05) money
sufficient to pay the Redemption Price of and accrued interest on all Notes to
be redeemed on that date other than Notes or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation.
SECTION 3.07. Payment of Notes Called for Redemption. If notice of
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless the
Company shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided that installments of interest
whose stated maturity is on or prior to the Redemption Date shall be payable to
the Holders registered as such at the close of business on the relevant Regular
Record Date.
SECTION 3.08. Notes Redeemed in Part. Upon surrender of any Note that
is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver by mail to the Holder without service charge, a new
Note equal in principal amount to the unredeemed portion of such surrendered
Note.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. The Company shall pay the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the date due if the Trustee or
the Paying Agents (other than the Company, a Subsidiary of the Company, or any
Affiliate of any of them) holds on that date money designated for and sufficient
to pay the installment, except that, at the option of the Company, payment of
interest may be made by check mailed to the address of each Holder as such
address is specified in the Security Register. If the Company or any Subsidiary
of the Company or any Affiliate of any of them acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve as the
Paying Agent, if any, for the Notes.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York and, in the event the
Notes are listed on the Luxembourg Stock Exchange, in Luxembourg, an office or
agency where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of any 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 address of the Trustee set forth in Section
11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
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 and, in the event the Notes are listed on the Luxembourg
Stock Exchange, in Luxembourg, for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
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The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company in the Borough of Manhattan, The City
of New York in accordance with Section 2.04.
SECTION 4.03. Fall-away Event. The Company's and its Restricted
Subsidiaries' obligations to comply with the provisions of this Indenture under
Sections 4.04, 4.05, 4.06 and 5.01 will terminate if and when the Notes are
Investment Grade Status (a "Fall-away Event"); provided, however, that the
Company's and its Restricted Subsidiaries' obligations to comply with such
provisions shall be reinstated as to events occurring after such reinstatement
if the Notes cease to have Investment Grade Status, subject to the terms,
conditions and obligations set forth in this Indenture, provided, further, that
no such Default or Event of Default shall be deemed to have arisen as a result
of such reinstatement or as a result of any action taken or omitted from being
taken during the period that the foregoing covenants were not in effect.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company will
not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, make any Restricted Payment if at the time of such
Restricted Payment and immediately after giving effect thereto:
(i) a Default or Event of Default shall have occurred and be
continuing; or
(ii) the Company is not able to incur $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this
Indenture; or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as
determined by the Board of Directors in good faith) exceeds the sum of
(a) (x) 100% of Consolidated EBITDA of the Company accrued subsequent
to the Issue Date to the most recent date for which financial
information is available to the Company (taken as one accounting
period), less (y) 1.75 times Consolidated Interest Expense for the same
period, plus (b) 100% of the aggregate net proceeds, including the fair
market value of property other than cash as determined by the Board of
Directors in good faith, received subsequent to the Issue Date by the
Company from any Person (other than a Restricted Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company (excluding (i) any net proceeds
from issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Restricted Subsidiary of the Company,
until and to the extent such borrowing is repaid, but including the
proceeds from the issuance and sale of any securities convertible into
or exchangeable for Qualified Capital Stock to the extent such
securities are so converted or exchanged and including any additional
proceeds received by the Company upon such conversion or exchange, (ii)
any net proceeds received from issuances and sales that are used to
consummate a transaction described in clause (2) of paragraph (b) below
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and (iii) any net cash proceeds received from the issuance and sale of
Designated Preferred Stock), plus (c) without duplication of any amount
included in clause (iii)(b) above, 100% of the aggregate net proceeds,
including the fair market value of property other than cash (valued as
provided in clause (iii)(b) above), received by the Company as a
capital contribution subsequent to the Issue Date, plus (d) the greater
of (i) $100 million and (ii) 15% of the Total Assets of the Company and
its consolidated Subsidiaries as determined in accordance with GAAP as
of the date of the most recently prepared internal balance sheet of the
Company.
(b) Notwithstanding the foregoing, these provisions will not prohibit:
(1) the payment of any dividend or the making of any distribution within 60 days
after the date of its declaration if such dividend or distribution would have
been permitted on the date of declaration; (2) (A) the purchase, redemption or
other acquisition or retirement of any Capital Stock of the Company or any
warrants, options or other rights to acquire shares of any class of such Capital
Stock ("Retired Capital Stock") either (x) solely in exchange for shares of
Qualified Capital Stock or other warrants, options or rights to acquire
Qualified Capital Stock or (y) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Restricted Subsidiary of
the Company) of shares of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock or (z) in the case of Disqualified
Capital Stock, solely in exchange for, or through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a Restricted
Subsidiary of the Company) of, Disqualified Capital Stock (in each case,
"Refunding Capital Stock") and (B) the declaration and payment of dividends on
Refunding Capital Stock in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that could have been paid on such
Retired Capital Stock pursuant to this covenant (other than this clause
(b)(2)(B)) immediately prior to such retirement; provided, however, that at the
time of the declaration of any such dividends, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(3) payments made pursuant to any merger, consolidation or sale of assets
effected in accordance with Article Five; provided, however, that no such
payment may be made pursuant to this clause (3) unless, after giving pro forma
effect to such transaction (and the incurrence of any Indebtedness in connection
therewith and the use of the proceeds thereof), the Company would be able to
incur $1.00 of additional Indebtedness under the first paragraph of Section 4.05
of this Indenture; (4)(A) the declaration and payment of dividends to holders of
any class or series of Designated Preferred Stock (other than Disqualified
Capital Stock) issued after the Issue Date or (B) the declaration and payment of
dividends on Refunding Capital Stock in excess of the dividends declarable and
payable thereon pursuant to clause (2)(B) above; provided, however, in either
case, after giving effect to such issuance or declaration on a pro forma basis,
the Company and its Restricted Subsidiaries would be able to incur $1.00 of
Indebtedness under the first paragraph of Section 4.05 of this Indenture; (5)
repurchases of warrants, options or rights to acquire Capital Stock deemed to
occur upon exercise of warrants, options or rights to acquire Capital Stock if
such warrants, options or rights represent a portion of the exercise price of
such warrants, options or rights; (6) the declaration and
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payment of dividends to holders of any class or series of Disqualified Capital
Stock or the declaration and payment of dividends to holders of Preferred Stock
of Restricted Subsidiaries, in each case, issued in accordance with Section 4.05
of this Indenture; (7) commencing on the six month anniversary of the Issue
Date, a Restricted Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests of the Company in
existence on the Issue Date and which are not held by KKR, Xxxxx Muse or any of
their respective affiliates on the Issue Date (including any Capital Stock
issued in respect of such Capital Stock as a result of a stock split,
recapitalization, merger, combination, consolidation or otherwise, but excluding
any Equity Interests issued pursuant to any management equity plan or stock
option plan or similar agreement); provided that notwithstanding the foregoing,
the Company and its Restricted Subsidiaries shall be permitted to make
Restricted Payments under this clause (7) only if after giving effect thereto,
the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this Indenture; and
(8) dividends on the Company's Capital Stock (other than Disqualified Capital
Stock) after the first underwritten Equity Offering in an annual amount not to
exceed 6.0% of the gross proceeds (before deducting underwriting discounts and
commissions and other fees and expenses of the offering) received from shares of
Capital Stock (other than Disqualified Capital Stock) sold for the account of
the issuer thereof (and not for the account of any stockholder) in such initial
underwritten Equity Offering; provided, however, that in the case of clauses
other than clauses (1) and (2)(A), no Event of Default shall have occurred or be
continuing at the time of such payment or as a result thereof. In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date,
amounts expended pursuant to clauses (1), 2(B), (3), (4) and (8) shall be
included in such calculation.
To the extent the issuance of Capital Stock and the receipt of capital
contributions are applied to permit the issuance of Indebtedness pursuant to
clause (v) of the definition of Permitted Indebtedness, the issuance of such
Capital Stock and the receipt of such capital contributions shall not be applied
to permit payments under this Section 4.04.
SECTION 4.05. Limitation on the Incurrence of Additional Indebtedness
and Issuance of Capital Stock. (a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness) and the Company will not issue
any Disqualified Capital Stock and its Restricted Subsidiaries will not issue
any Preferred Stock (except Preferred Stock issued to the Company or a
Restricted Subsidiary of the Company so long as it is so held); provided,
however, that the Company and its Restricted Subsidiaries may incur Indebtedness
or issue shares of such Capital Stock if, in either case, the Company's Leverage
Ratio at the time of incurrence of such Indebtedness or the issuance of such
Capital Stock, as the case may be, after giving pro forma effect to such
incurrence or issuance as of such date and to the use of proceeds therefrom is
less than 7:1.
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(b) The Company will not incur or suffer to exist, or permit any of its
Restricted Subsidiaries to incur or suffer to exist, any Obligations with
respect to an Unrestricted Subsidiary that would violate the provisions set
forth in the definition of Unrestricted Subsidiary set forth in Section 1.01.
(c) For purposes of determining compliance with this Section 4.05, in
the event that an item of Permitted Indebtedness meets the criteria of more than
one of the categories of Permitted Indebtedness or is entitled to be incurred
pursuant to the first paragraph of this Section 4.05, the Company shall, in its
sole discretion, classify such item of Indebtedness in any manner that complies
with this Section 4.05 and such item of Indebtedness will be treated as having
been incurred pursuant to only one of the clauses of the definition of Permitted
Indebtedness or pursuant to the first paragraph hereof except as otherwise set
forth in clause (v) of the definition of Permitted Indebtedness. Accrual of
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.05.
SECTION 4.06. Limitations on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions involving aggregate payments or consideration in excess of $5.0
million (including, without limitation, the purchase, sale, lease, contribution
or exchange of any property or the rendering of any service) with or for the
benefit of any of its or any of its Restricted Subsidiary's Affiliates (other
than transactions between the Company and a Restricted Subsidiary of the Company
or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"),
other than Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction on an
arm's-length basis from a person that is not an Affiliate; provided, however,
that for a transaction or series of related transactions involving value of
$10.0 million or more, such determination will be made in good faith by a
majority of members of the Board of Directors and by a majority of the
disinterested members of the Board of Directors, if any. The foregoing
restrictions will not apply to (1) reasonable and customary directors' fees,
indemnification and similar arrangements and payments thereunder; (2) any
obligations of the Company under any employment agreement, noncompetition or
confidentiality agreement with any officer of the Company, as in effect on the
Issue Date (provided that each amendment of any of the foregoing agreements
shall be subject to the limitations of this covenant); (3) any Restricted
Payment permitted to be made pursuant to Section 4.04 of this Indenture; (4) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors; (5) loans
or advances to employees in the ordinary course of business of the Company or
any of its Restricted Subsidiaries consistent with past practices; (6) payments
made in connection with the Transactions, including, without limitation, fees
payable to and expenses of Xxxxx Muse and KKR; (7) payments by the Company or
any of its Restricted Subsidiaries to KKR or Xxxxx Muse or their respective
Affiliates
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made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which payments are
approved by a majority of the Board of Directors in good faith; (8) transactions
in which the Company or any of its Restricted Subsidiaries, as the case may be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Company or such Restricted Subsidiary from
a financial point of view or that is on terms that are no less favorable than
those that might reasonably have been obtained in a comparable transaction on an
arm's-length basis from a person that is not an Affiliate; (9) the existence of,
or the performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party as of the Issue Date and any similar agreements which it may enter
into thereafter; provided, however, that the existence of, or the performance by
the Company or any of its Restricted Subsidiaries of obligations under any
future amendment to any such existing agreement or under any similar agreement
entered into after the Issue Date shall only be permitted by this clause (9) to
the extent that the terms (taken as a whole) of any such amendment or new
agreement are not otherwise disadvantageous to the Holders in any material
respect; (10) transactions with customers, clients, suppliers, or purchasers or
sellers of goods or services, in each case in the ordinary course of business
and otherwise in compliance with the terms of this Indenture which are fair to
the Company or its Restricted Subsidiaries, in the reasonable determination of
the Board of Directors or the management thereof, or are on terms (taken as a
whole) at least as favorable as might reasonably have been obtained at such time
from an unaffiliated party; (11) any agreement as in effect as of the Issue Date
or any amendment thereto (so long as any such amendment, taken as a whole, is
not disadvantageous to the Holders in any material respect) or any transaction
contemplated thereby and (12) any purchases of Capital Stock (other than
Disqualified Capital Stock) of the Company by Affiliates thereof.
SECTION 4.07. Repurchase of Notes upon a Change of Control. (a) Upon
the occurrence of a Change of Control, each Holder shall have the right to
require that the Company purchase all or a portion of such Holder's Notes in
cash pursuant to the offer described in paragraph (c) of this Section 4.07 (the
"Change of Control Offer"), at a purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following the date on which the Company becomes aware that
a Change of Control has occurred, if the purchase of the Notes would violate or
constitute a default under any other Indebtedness of the Company, then the
Company shall, to the extent needed to permit such purchase of Notes, either (i)
repay all such Indebtedness and terminate all commitments outstanding thereunder
or (ii) obtain the requisite consents, if any, under such Indebtedness to permit
the purchase of the Notes as provided below. The Company will first comply with
the covenant in the preceding sentence
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before it will be required to make the Change of Control Offer or purchase the
Notes pursuant to the provisions of paragraphs (c) and (d) below.
(c) Within 30 days following the date on which the Company becomes
aware that a Change of Control has occurred, the Company shall send, by
first-class mail, postage prepaid, a notice to each Holder (and publish notice
in Luxembourg at Greffier et Chef du Tribunal d'Arrondissement de et a
Luxembourg, Chief Registrar of the District Court in Luxembourg), which notice
shall govern the terms of the Change of Control Offer. Such notice shall state,
among other things, the purchase date, which must be no earlier than 30 days nor
later than 60 days from the date such notice is mailed, other than as may be
required by law (the "Change of Control Payment Date"). Holders electing to have
any Notes purchased pursuant to a Change of Control Offer must surrender such
Notes to the Transfer Agent and/or Paying Agent for the Notes at the addresses
specified in the notice prior to the close of business on the business day prior
to the Change of Control Payment Date. The Company will not be required to make
a Change of Control Offer pursuant to this covenant if a third party makes a
Change of Control Offer in compliance with this Section 4.07 and repurchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
(d) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act, to the extent applicable in connection with the purchase of
Notes pursuant to a Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this
Indenture, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations described
in this Indenture by virtue hereof.
SECTION 4.08. Existence. Subject to Articles Four and Five of this
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement, statute
or otherwise), licenses and franchises of the Company and each Restricted
Subsidiary; provided that the Company shall not be required to preserve any such
right, license or franchise, or the existence of any Restricted Subsidiary, if
the maintenance or preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will pay
or discharge and shall cause each of its Subsidiaries to pay or discharge, or
cause to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and
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supplies that, if unpaid, might by law become a lien upon the property of the
Company or any such Subsidiary; provided 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 the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which, if
necessary, adequate reserves have been established.
SECTION 4.10. Maintenance of Properties and Insurance. The Company will
cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries 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 that nothing in
this Section 4.10 shall prevent the Company or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or any such Restricted Subsidiary, as the case may
be, is then conducting business.
SECTION 4.11. Notice of Defaults. In the event that any Officer becomes
aware of any Default or Event of Default, the Company shall promptly deliver to
the Trustee an Officers' Certificate specifying such Default or Event of
Default.
SECTION 4.12. Compliance Certificates. (a) The Company shall deliver to
the Trustee, within 45 days after the end of each fiscal quarter (120 days after
the end of the last fiscal quarter of each year), an Officers' Certificate
stating whether or not the signers know of any Default or Event of Default that
occurred during such fiscal quarter. In the case of the Officers' Certificate
delivered within 120 days after the end of the Company's fiscal year, such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under this Indenture and that the Company has complied with all conditions and
covenants under this Indenture. For purposes of this Section 4.12, such
compliance shall be
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determined without regard to any period of grace or requirement of notice
provided under this Indenture. If any of the Officers signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status. The first
certificate to be delivered pursuant to this Section 4.12(a) shall be for the
first fiscal quarter beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, beginning with the fiscal year in which this Indenture
was executed, a certificate signed by the Company's independent certified public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Notes as they relate to accounting matters,
(ii) that they have read the most recent Officers' Certificate delivered to the
Trustee pursuant to paragraph (a) of this Section 4.12 and (iii) whether, in
connection with their audit examination, anything came to their attention that
caused them to believe that the Company was not in compliance with any of the
terms, covenants, provisions or conditions of Article Four and Section 5.01 of
this Indenture as they pertain to accounting matters and, if any Default or
Event of Default has come to their attention, specifying the nature and period
of existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
SECTION 4.13. Commission Reports and Reports to Holders. Whether or not
the Company is then required to file reports with the Commission, the Company
shall file with the Commission, to the extent such submissions are accepted for
filing, all such reports and other information as it would be required to file
with the Commission by Sections 13(a) or 15(d) under the Exchange Act if it were
subject thereto. The Company shall supply the Trustee and each Holder or shall
supply to the Trustee for forwarding to each such Holder, without cost to such
Holder, copies of such reports and other information within 15 days after the
date it would have been required to file such reports or other information with
the Commission had it been subject to such Sections. All such reports sent to
Holders shall be made available in Luxembourg at Greffier et Chef du Tribunal
d'Arrondissement de et a Luxembourg, Chief Registrar of the District Court in
Luxembourg. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.14. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly
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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.
SECTION 4.15. Limitation on Layering. The Company will not incur any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness unless such Indebtedness is Senior
Subordinated Indebtedness or is contractually subordinated in right of payment
to all Senior Subordinated Indebtedness (including the Notes).
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not, in a
single transaction or a series of related transactions, consolidate with or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of the Company's assets determined on a
consolidated basis for the Company to another Person or adopt a plan of
liquidation unless (i) either (1) the Company is the Surviving Person or (2) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety or,
in the case of a plan of liquidation, the Person to which assets of the Company
have been transferred, shall be a corporation, partnership, limited liability
company or trust organized and existing under the laws of the United States or
any State thereof or the District of Columbia; (ii) such Surviving Person shall
assume all of the obligations of the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately after giving effect to such transaction and the use
of the proceeds therefrom (on a pro forma basis, including giving effect to any
Indebtedness incurred or anticipated to be incurred in connection with such
transaction and the use of the proceeds therefrom), (1) no Default or Event of
Default shall have occurred and be continuing and (2) either (x) such Surviving
Person shall be able to incur $1.00 of additional Indebtedness under the first
paragraph of Section 4.05 of this Indenture or (y) the Leverage Ratio for such
Surviving Person would be less than the Leverage Ratio of the Company
immediately prior to such transaction; and (iv) the Company has delivered to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer complies with this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties and assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties or assets of the Company, will be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing
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clauses (ii) and (iii), (1) any Restricted Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company and (2) the Company may merge with an Affiliate thereof
organized solely for the purpose of reorganizing the Company in another
jurisdiction in the U.S. to realize tax or other benefits.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made 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 the Company shall be discharged from its Obligations
under the Notes; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the Notes in
the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Any of the following events shall
constitute an "Event of Default" hereunder:
(i) the failure to pay interest on the Notes when the same
becomes due and payable and the Default continues for a period of 30
days (whether or not such payment is prohibited by the provisions of
Article Ten);
(ii) the failure to pay principal of or premium, if any, on
any Notes when such principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by the provisions of Article Ten);
(iii) a default in the observance or performance of any other
covenant or agreement contained in the Notes or this Indenture, which
default continues for a period of 60 days after the Company receives
written notice thereof specifying the default from the Trustee or
holders of at least 30% in aggregate principal amount of outstanding
Notes;
(iv) the failure to pay at the final stated maturity (after
giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness, if the aggregate principal amount of such Indebtedness,
together with the aggregate principal amount of any other such
Indebtedness in default for failure
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to pay principal at the final stated maturity (giving effect to any
extensions thereof) or which has been accelerated, aggregates $20
million or more at any time;
(v) one or more judgments in an aggregate amount in excess of
$20 million (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the Company or any
of its Significant Restricted Subsidiaries and such judgment or
judgments remain undischarged or unstayed for a period of 60 days after
such judgment or judgments become final and nonappealable;
(vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Restricted Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law for relief of
debtors now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or (C)
the winding up or liquidation of the affairs of the Company or any of
its Significant Restricted Subsidiaries and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vii) the Company or any of its Significant Restricted
Subsidiaries (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law for relief of debtors now
or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any of its Significant Restricted Subsidiaries or for all or
substantially all of the property and assets of the Company or any of
its Significant Restricted Subsidiaries or (C) effects any general
assignment for the benefit of creditors.
SECTION 6.02. Acceleration. Upon the occurrence of an Event of Default
(other than an Event of Default specified in clause (vi) or (vii) of Section
6.01 that occurs with respect to the Company), the Trustee may, and the Trustee
upon the request of the Holders of 30% in principal amount of the outstanding
Notes shall, or the Holders of at least 30% in principal amount of outstanding
Note may, declare the principal of all the Notes, together with all accrued and
unpaid interest and premium, if any, due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "Acceleration Notice"). Upon such a
declaration of acceleration, such principal, premium, if any, and accrued
interest (i) shall be immediately due and payable or (ii) if there are any
amounts outstanding under the Senior Credit Facilities, will become due and
payable upon the first to occur of an acceleration under the Senior Credit
Facilities or five Business Days after receipt by the Company and the agent
under the Senior Credit Facilities of such Acceleration Notice (unless all
Events of Default specified in such Acceleration Notice have been cured or
waived). If an Event
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of Default specified in clauses (vi) through (vii) of Section 6.01 occurs with
respect to the Company, the principal of, premium, if any, and accrued interest
on the Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such declaration or occurrence of acceleration, but
before a judgment or decree for the payment of the money due has been obtained
by the Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee, may
rescind and annul a declaration or occurrence of acceleration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) 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 (ii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and overdue payments of
principal which has become due otherwise than by such declaration of
acceleration, at the rate prescribed therefor by such Notes, (b) all existing
Defaults and Events of Default, other than the non-payment of the principal of,
premium, if any, and accrued interest on the Notes that have become due solely
by such declaration of acceleration, have been cured or waived, (c) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (d) in the event of the cure or waiver of a Default
or Event of Default of the type described in clauses (vi) or (vii) of Section
6.01, the Trustee has received an Officers' Certificate and Opinion of Counsel
that such Default or Event of Default has been cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Notes shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Note as specified in clause
(i) or (ii) of Section 6.01 or in respect of a covenant or provision of this
Indenture which 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 Event of Default or impair any
right consequent thereto. In the event of any Event of Default specified in
clauses (iv), (vi) or (vii) of Section 6.01,
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such Event of Default and all consequences thereof (including without limitation
any acceleration or resulting payment default) shall be annulled, waived and
rescinded, automatically and without any action by the Trustee or Holders of the
Notes, if within 60 days after such Event of Default arose (x) the Indebtedness
that is the basis for such Event of Default has been discharged or (y) the
Holders of such Indebtedness have rescinded or waived the acceleration, notice
or action (as the case may be) giving rise to such Event of Default, or (z) if
the Default that is the basis for such Event of Default has been cured.
SECTION 6.05. Control by Majority. The Holders of at least a majority
in aggregate principal amount of the outstanding Notes may 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
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Notes not joining in the giving of such direction; and provided
further that the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes.
SECTION 6.06. Limitation on Suits. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder has previously given the Trustee written notice
of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes shall have made a written request to the Trustee
to pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liability or
expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.06,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes have concurred in any request or
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direction of the Trustee to pursue any remedy available to the Trustee or the
Holders with respect to this Indenture or the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium, if any, or interest on, such Note or to
bring suit for the enforcement of any such payment, on or after the due date
expressed in the Notes, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (i) or (ii) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Notes for the whole amount of principal, premium, if any, and
accrued interest remaining unpaid, together with interest on overdue principal,
premium, if any, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate specified
in the Notes, and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Notes or upon 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 to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower 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 6.10. Priorities. If the Trustee collects any money pursuant
to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to the holders of Senior Indebtedness, and as to the
extent required by Article Ten;
Third: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal, premium, if any,
and interest, respectively; and
Fourth: to the Company or any other obligors of the Notes,
as their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by Holders of more than 10% in principal amount of the
outstanding Notes.
SECTION 6.12. 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
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Notes in Section 2.09, 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
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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 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder 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 Six 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.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. 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 herein 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
Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA
Sections 315(a) through (d):
(i) 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 in good faith by it to be genuine and to
have been signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion;
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(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not
constitute negligence or bad faith;
(vi) 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;
(vii) 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 at the sole cost of the Company;
(viii) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(ix) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(x) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a Default is received by the Trustee at its Corporate Trust
Office, and such notice references the Notes and this Indenture.
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SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for the Company's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement in
the Notes other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent
provided in TIA Section 313(c) notice of the Default or Event of Default within
45 days after it occurs, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a Default in the payment of the
principal of, premium, if any, or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the Board of Directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 1999, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services hereunder. The compensation of the Trustee shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by the Trustee in the administration of its duties
hereunder without negligence, willful misconduct or bad faith on its part. Such
disubrsements, expenses and advances shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence,
wilful misconduct or bad faith on its part in connection with the acceptance or
administration of this Indenture and its duties under this
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Indenture and the Notes, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel.
The obligations of the Company under this Section 7.07 shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article Ten. To
secure the Company's payment obligations in this Section 7.07, the Trustee shall
have a lien prior to the Notes on all money or property held or collected by the
Trustee, in its capacity as Trustee, except money or property held in trust to
pay principal of, premium, if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clauses (vi) through (vii) of Section 6.01,
the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company. The Company may remove the Trustee if:
(i) the Trustee is no longer eligible under Section 7.10; (ii) the Trustee is
adjudged a bankrupt or an insolvent; (iii) a receiver or other public officer
takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the
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Company. If the successor Trustee does not deliver its written acceptance
required by the next succeeding paragraph of this Section 7.08 within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of the outstanding
Notes may, at the expense of the Company, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder and to the
administrative agent under the Senior Credit Facilities. 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.
If the Trustee is no longer eligible under Section 7.10 or shall fail
to comply with TIA Section 310(b), any Holder who satisfies the requirements of
TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 7.08, the Trustee shall resign immediately in the manner and with
the effect provided in this Section.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein, provided such corporation shall be otherwise qualified and eligible
under this Article.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable Federal or state supervising or examining authority. If
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at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in this Article.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
that are paid pursuant to Section 4.01 or Notes for whose payment money
or securities have theretofore been held in trust and thereafter repaid
to the Company, as provided in Section 8.05) have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by
it hereunder; or
(ii) (A) the Notes mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money, U.S. Government
Obligations or 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), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D)
such deposit will not result in a breach or violation of, or constitute
a Default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound and (E) the
Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
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With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the
Notes are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07, 8.04 and 8.05 and Article Ten (with respect to payments in
respect of Note Obligations other than with the assets held in trust as
described in clause (ii) above) shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under the Notes and this Indenture except for those
surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the date of the deposit referred to in clause (A) of
this Section 8.02, and the provisions of this Indenture will no longer be in
effect with respect to the Notes, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same if:
(A) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (1) money in an amount, (2) U.S.
Government Obligations that, through the payment of interest, premium,
if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (A), money in an amount or (3) a
combination thereof in an amount 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, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding Notes on
the stated maturity of such principal or interest or any applicable
Redemption Date selected by the Company; provided that the Trustee
shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Notes;
(B) the Company has delivered to the Trustee (1) either (x) an
Opinion of Counsel to the effect that Holders will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner
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and at the same times as would have been the case if such option had
not been exercised, which Opinion of Counsel shall be based upon (and
accompanied by a copy of) a ruling of the Internal Revenue Service
directed to the Company to the same effect unless there has been a
change in applicable federal income tax law after the Closing Date such
that a ruling is no longer required or (y) a ruling directed to the
Company received from the Internal Revenue Service to the same effect
as the aforementioned Opinion of Counsel and (2) an Opinion of Counsel
to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and that after the passage
of 123 days following the deposit (except, with respect to any trust
funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute, provided, that in
delivering any such Opinion of Counsel, such counsel shall be entitled
to rely upon the statements of experts as to the solvency of the
Company, and either (I) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (a) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
except for the effect of Section 552(b) of the United States Bankruptcy
Code on interest on the trust funds accruing after the commencement of
a case under such statute and (b) the Holders will be entitled to
receive adequate protection of their interests in such trust funds if
such trust funds are used in such case or proceeding;
(C) immediately after giving effect to such deposit, on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound and is permitted by Article Ten;
(D) if the Notes are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result
of such deposit, defeasance and discharge; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 have been complied with.
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Notwithstanding the foregoing, the Company's obligations in Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 8.04,
8.05, 8.06 and the rights, powers, trusts, duties and immunities of the Trustee
hereunder and Article Ten (with respect to payments in respect of Note
Obligations other than with the assets held in trust as described in this
Section 8.02) shall survive until the Notes are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive. If and when a ruling from the Internal Revenue Service or an Opinion of
Counsel referred to in clause (B)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the
Company's obligations under Section 4.01, then the Company's obligations under
such Section 4.01 shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company may omit
to comply with any term, provision or condition set forth in clause (iii) of
Section 5.01, the proviso in Section 4.03 and Sections 4.04 through 4.07, 4.13
and 4.15 and clauses (iii) through (vii) of Section 6.01 shall be deemed not to
be Events of Default and Article Ten shall not apply to the money and/or U.S.
Government Obligations held by the trust referred to in clause (i) below, in
each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest, premium,
if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount 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, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding Notes on
the stated maturity of such principal or interest or on any applicable
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Redemption Date selected by the Company; provided that the Trustee
shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Notes;
(ii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (B) after the
passage of 123 days following the deposit (except, with respect to any
trust funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute, provided, that in
delivering any such Opinion of Counsel, such counsel shall be entitled
to rely upon the statements of experts as to the solvency of the
Company, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (x) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
(except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute) and (y) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding,
(C) the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred and (D) the Trustee, for the benefit of the Holders, has a
valid first-priority security interest in the trust funds;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound and is permitted by Article Ten;
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(iv) if the Notes are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result
of such deposit, defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium, if any, and interest on the Notes; but such money need
not be segregated from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal, premium, if
any, or interest that remains unclaimed for two years; provided that the Trustee
or Paying Agent before being required to make any payment may cause to be
published at the expense of the Company once in a newspaper of general
circulation in The City of New York and, in the event the Notes are listed on
the Luxembourg Stock Exchange, in Luxembourg, or mail to each Holder entitled to
such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified therein
(which shall be at least 30 days from the date of such publication or mailing)
any unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holders entitled to such money must look
to the Company for payment as general creditors unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.01, 8.02 or 8.03, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.01, 8.02 or 8.03, as the case may be; provided that, if the Company has made
any payment of principal of, premium, if any, or interest
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on any Notes because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when authorized
by a resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(6) to add one or more subsidiary guarantees on the terms
required by this Indenture; or
(7) to make any change that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution, does not
materially and adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture and the Notes with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding, and the Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Notes.
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Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) reduce the amount of Notes whose holders must consent to
an amendment;
(ii) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Notes;
(iii) reduce the principal of or change the fixed maturity of
any Notes, or change the fixed maturity of any Notes, or change the
date on which any Notes may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor;
(iv) make any Notes payable in money other than that stated in
the Notes and the Indenture;
(v) make any change in provisions of the Indenture protecting
the right each Holder of a Note to receive payment of, premium on and
interest on such Note on or after the due date thereof or to bring suit
to enforce such payment or permitting Holders of a majority in
principal amount of Notes to waive a Default or Event of Default; or
(vi) after the Company's obligation to purchase Notes arises
under Section 4.07, amend, modify or change the obligation of the
Company to make or consummate a Change of Control Offer or modify any
of the provisions or definitions with respect to any such offer.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date
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the amendment, supplement or waiver becomes effective. An amendment, supplement
or waiver shall become effective on receipt by the Trustee of written consents
from the Holders of the requisite percentage in principal amount of the
outstanding Notes.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the
second paragraph of Section 9.02, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent Holder of a Note that evidences the
same indebtedness as the Note of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver such Note to the Trustee. At the Company's expense, the
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Note thereafter authenticated. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation, or issue a new Note, shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
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ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Indebtedness. The Company
and the Trustee each covenants and agrees, and each Holder, by its acceptance of
a Note, likewise covenants and agrees that all Notes shall be issued subject to
the provisions of this Article Ten; and each Person holding any Note, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees that Note Obligations shall, to the extent and in the manner set
forth in this Article Ten, be subordinated in right of payment to the prior
payment in full, in cash, of all existing and future Senior Indebtedness,
including, without limitation, the Company's obligations under the Senior Credit
Facilities (including any interest accruing on or subsequent to, or which would
have accrued but for the occurrence of, an event specified in Sections 6.01(vi)
and 6.01(vii) of this Indenture, whether or not such interest is an allowed
claim enforceable against the debtor under the United States Bankruptcy Code).
SECTION 10.02. No Payment on Notes in Certain Circumstances. (a) No
direct or indirect payment by or on behalf of the Company of Note Obligations
(other than with the money, securities or proceeds held under any defeasance
trust established in accordance with this Indenture), whether pursuant to the
terms of the Notes or upon acceleration or otherwise, shall be made if (i) any
Senior Indebtedness is not paid when due or (ii) any other default on Senior
Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms unless, in either case, the default has been cured
or waived and/or any such acceleration has been rescinded or such Senior
Indebtedness has been paid; provided, however, that the Company may pay any Note
Obligation without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of the
Senior Indebtedness with respect to which either of the events set forth in
clause (i) or (ii) above has occurred and is continuing.
(b) During the continuance of any other event of default with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, upon receipt by the Trustee with a copy to the Company of written
notice from the trustee or other representative for the holders of such
Designated Senior Indebtedness (or the holders of at least a majority in
principal amount of such Designated Senior Indebtedness then outstanding
specifying an election to effect a Payment Blockage Period (as defined below) (a
"Blockage Notice")), no payment of Note Obligations (other than with the money,
securities or proceeds held under any defeasance trust established in accordance
with this Indenture) may be made by or on behalf of the Company and except that
holders of any Note Obligation may receive (i) Qualified Capital Stock issued by
the Company to pay interest on the Notes or issued in exchange for the Notes,
(ii) securities substantially identical
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to the Notes issued by the Company in payment of interest accrued thereon or
(iii) securities issued by the Company which are subordinated to Senior
Indebtedness at least to the same extent as the Notes and having a Weighted
Average Life to Maturity at least equal to the remaining Weighted Average Life
to Maturity of the Notes) may be made for a period (a "Payment Blockage Period")
commencing on the date of receipt of such notice and ending 179 days thereafter
(or earlier if such Payment Blockage Period shall be terminated (i) by written
notice to the Trustee with a copy to the Company from such trustee of, or other
Representatives who gave such notice, (ii) because the default giving rise to
such Blockage Notice has been cured or waived or is no longer continuing or
(iii) because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence,
but subject to the provisions of paragraphs (a) and (c) of this Section 10.02,
the Company may resume payments on the Notes after the end of such Payment
Blockage Period. Not more than one Payment Blockage Period may be commenced with
respect to the Notes during any period of 360 consecutive days, irrespective of
the number of defaults with respect to Designated Senior Indebtedness during
such period. However, if any Blockage Notice within such 360-day period is given
by or on behalf of any holders of Designated Senior Indebtedness (other than the
agent under the Senior Credit Facilities), the agent under the Senior Credit
Facilities may give another Blockage Notice within such period. In no event,
however, may the total number of days during which any Payment Blockage Period
or Payment Blockage Periods is in effect exceed 179 days in the aggregate during
any 360-consecutive-day period. No nonpayment default that existed or was
continuing on the date of delivery of any Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Blockage Notice unless such default
shall have been cured or waived for a period of not less than 90 consecutive
days. The failure of the Company to pay principal when due or to pay interest on
the Notes for more than 30 days after the scheduled payment therefor as a result
of the occurrence of a Payment Blockage Period shall nevertheless constitute an
Event of Default under this Indenture. For the purposes of this Article Ten (but
without limiting the effect of any other provision of this Article Ten), paying
any Note Obligation shall include any payment or distribution of any kind or
character by the Company or its Subsidiaries, by set-off or otherwise,
including, without limitation, any repurchase, redemption or acquisition of the
Notes and any direct or indirect payment payable by reason of any other
Indebtedness or Obligation being subordinated to the Notes. In addition, as long
as the Notes are listed on the Luxembourg Stock Exchange, in the event of the
issuance of a Blockage Notice, the Company shall notify the Luxembourg Stock
Exchange and the Holders, in each case in accordance with Section 11.02.
(c) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by
Section 10.02(a) or 10.02(b) of this Indenture, the Trustee shall promptly
notify the representatives of such Senior Indebtedness of such prohibited
payment and such payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that, upon
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notice from the Trustee to the representatives of such Senior Indebtedness that
such prohibited payment has been made, such representatives within 30 days of
receipt of such notice from the Trustee notifies the Trustee of the amounts then
due and owing on the Senior Indebtedness, if any, and only the amounts specified
in such notice to the Trustee shall be paid to the representatives of such
Senior Indebtedness and any excess above such amounts due and owing on Senior
Indebtedness shall be paid to the Company.
SECTION 10.03. Payment over of Proceeds upon Dissolution, Etc. (a) Upon
any payment or distribution of assets or securities of the Company of any kind
or character, whether in cash, property or securities (other than with the
money, securities or proceeds held under any defeasance trust established in
accordance with this Indenture), in connection with any dissolution or
winding-up or total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other similar proceedings, any assignment for the benefit of creditors or any
marshalling of assets for the benefit of creditors, all amounts due or to become
due upon all Senior Indebtedness (including any interest accruing on or
subsequent to, or which would have accrued but for the occurrence of, an event
specified in paragraphs (vi) and (vii) of Section 6.01, whether or not such
interest is an allowed claim enforceable against the debtor under the United
States Bankruptcy Code) shall first be paid in full, in cash, before the Holders
or the Trustee on their behalf shall be entitled to receive any payment by (or
on behalf of) the Company on account of Note Obligations, or any payment to
acquire any of the Notes for cash, property or securities, or any distribution
with respect to the Notes of any cash, property or securities. Before any
payment may be made by, or on behalf of, the Company on any Note Obligations
(other than with the money, securities or proceeds held under any defeasance
trust established in accordance with this Indenture) in connection with any such
dissolution, winding-up, liquidation, reorganization, assignment, marshalling or
proceeding, any payment or distribution of assets or securities for the Company
of any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on their behalf would be entitled, but for the provisions
of this Article Ten, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, or by the Holders or the Trustee if received by them or
it, directly to the representatives of such Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders) or their representatives or to any trustee or trustees under
any other indenture pursuant to which any such Senior Indebtedness may have been
issued, as their respective interests appear, to the extent necessary to pay all
such Senior Indebtedness in full, in cash or cash equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for
the representatives of such Senior Indebtedness (except that Holders of the
Notes may receive (i) Qualified Capital Stock issued by the Company to pay
interest on the Notes or issued in exchange for the Notes, (ii) securities
substantially identical to the Notes issued by the Company in payment of
interest accrued thereon or (iii) securities issued by the Company which are
subordinated to Senior Indebtedness at least to the same extent as the
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Notes and having a Weighted Average Life to Maturity at least equal to the
remaining Weighted Average Life to Maturity of the Notes).
(b) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee or other
similar Person, the Senior Indebtedness or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Indebtedness
is declared to be fraudulent, invalid, or otherwise set aside under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
the obligation so declared fraudulent, invalid or otherwise set aside (and all
other amounts that would come due with respect thereto had such obligation not
been so affected) shall be deemed to be reinstated and outstanding as Senior
Indebtedness for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Section 10.03(a) of this Indenture
and before all obligations in respect of Senior Indebtedness are paid in full,
in cash, such payment or distribution shall be received and held in trust for
the benefit of, and shall be paid over or delivered to, the representatives of
such Senior Indebtedness (pro rata to such holders on the basis of such
respective amount of Senior Indebtedness held by such holders) or their
representatives, or to the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness may have been issued, as their respective
interests appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full, in
cash, after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
(d) For purposes of this Section 10.03, the words "cash, property or
securities" shall not be deemed to include, so long as the effect of this clause
is not to cause the Notes to be treated in any case or proceeding or similar
event described in this Section 10.03 as part of the same class of claims as the
Senior Indebtedness or any class of claims pari passu with, or senior to, the
Senior Indebtedness for any payment or distribution, securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment that are subordinated, at least to the extent that the Notes are
subordinated, to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (2) the
rights of the holders
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of the Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer, lease or other disposition of all or substantially all of its property
and assets to another corporation upon the terms and conditions provided in
Article Five of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 10.03 if such
other corporation shall, as a part of such consolidation, merger, sale,
conveyance, transfer, lease or other disposition, comply (to the extent
required) with the conditions stated in Article Five of this Indenture.
SECTION 10.04. Subrogation. (a) Upon the payment in full of all Senior
Indebtedness in cash, the Holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior Indebtedness until the
principal of, premium, if any, and interest on the Notes shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
representatives of the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders or the Trustee on their behalf would be
entitled except for the provisions of this Article Ten, and no payment pursuant
to the provisions of this Article Ten to the holders of Senior Indebtedness by
Holders or the Trustee on their behalf shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness. It
is understood that the provisions of this Article Ten are intended solely for
the purpose of defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
(b) If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of all
amounts payable under Senior Indebtedness, then, and in such case, the Holders
shall be entitled to receive from the holders of such Senior Indebtedness any
payments or distributions received by such holders of Senior Indebtedness in
excess of the amount required to make payment in full, in cash, of such Senior
Indebtedness of such holders.
SECTION 10.05. Obligations of Company Unconditional. (a) Nothing
contained in this Article Ten or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of, premium, if any, and interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Holders or the Trustee on their behalf
from exercising all remedies otherwise permitted by applicable law upon
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default under this Indenture, subject to the rights, if any, under this Article
Ten of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing, nothing contained
in this Article Ten will restrict the right of the Trustee or the Holders to
take any action to declare the Notes to be due and payable prior to their stated
maturity pursuant to Section 6.01 of this Indenture or to pursue any rights or
remedies hereunder; provided, however, that all Senior Indebtedness then due and
payable or thereafter declared to be due and payable shall first be paid in
full, in cash, before the Holders or the Trustee on behalf of the Holders are
entitled to receive any direct or indirect payment from the Company of Note
Obligations.
SECTION 10.06. Notice to Trustee. (a) The Company shall give prompt
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the Notes
pursuant to the provisions of this Article Ten. The Trustee shall not be charged
with the knowledge of the existence of any default or event of default with
respect to any Senior Indebtedness or of any other facts that would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing at its Corporate Trust Office to that effect
signed by an Officer of the Company, or by a holder of Senior Indebtedness or
trustee or agent thereof; and prior to the receipt of any such written notice,
the Trustee shall, subject to Article Seven, be entitled to assume that no such
facts exist; provided that, if the Trustee shall not have received the notice
provided for in this Section 10.06 at least three Business Days prior to the
date upon which, by the terms of this Indenture, any monies shall become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, notwithstanding anything herein
to the contrary, the Trustee shall have full power and authority to receive any
monies from the Company and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it on or after such prior date except for an acceleration of the
Notes prior to such application. Nothing contained in this Section 10.06 shall
limit the right of the holders of Senior Indebtedness to recover payments as
contemplated by this Article Ten. The foregoing shall not apply if the Paying
Agent is the Company. The Trustee shall be entitled to rely in good faith on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Indebtedness or a trustee or representative on behalf of
any such holder.
(b) In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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
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Ten and, if such evidence is not furnished to the Trustee, the Trustee may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets or securities referred to in
this Article Ten, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
similar Person making such payment or distribution, delivered to the Trustee or
to the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Ten, provided that such court, trustee, receiver,
custodian, assignee, agent or other Person has been apprised of, or the order,
decree or certificate makes reference to, the provisions of this Article.
SECTION 10.08. Trustee's Relation to Senior Indebtedness. (a) The
Trustee and any Paying Agent shall be entitled to all the rights set forth in
this Article Ten with respect to any Senior Indebtedness that may at any time be
held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Sections 10.02(c) and 10.03(c) of this Indenture) and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Notes or to the Company or to any other person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Ten or otherwise.
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as provided
in this Article Ten will at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with. The provisions of this
Article Ten are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
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SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination of
Notes. Each Holder by his acceptance of any Notes authorizes and expressly
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Ten, and
appoints the Trustee his attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the property and assets of the
Company, the filing of a claim for the unpaid balance of its Notes in the form
required in those proceedings. If the Trustee does not file a proper claim or
proof in indebtedness in the form required in such proceeding at least 30 days
before the expiration of the time to file such claim or claims, each holder of
Senior Indebtedness is hereby authorized to file an appropriate claim for and on
behalf of the Holders.
SECTION 10.11. Not to Prevent Events of Default. The failure to make a
payment on account of principal of, premium, if any, or interest on the Notes by
reason of any provision of this Article Ten will not be construed as preventing
the occurrence of an Event of Default.
SECTION 10.12. Trustee's Compensation Not Prejudiced. Nothing in this
Article Ten will apply to amounts due to the Trustee pursuant to other sections
of this Indenture, including without limitation Section 7.07.
SECTION 10.13. No Waiver of Subordination Provisions. Without in any
way limiting the generality of Section 10.09, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this Article Ten or
the obligations hereunder of the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (a) change the manner, place or terms of
payment or extend or shorten the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 10.14. Payments May Be Paid Prior to Dissolution. Nothing
contained in this Article Ten or elsewhere in this Indenture shall prevent (i)
the Company except under the conditions described in Section 10.02 or 10.03,
from making payments of principal of, premium, if any, and interest on the
Notes, or from depositing with the Trustee any money for such payments, or (ii)
the application by the Trustee of any money deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the Notes
to the holders entitled thereto unless, at least three Business Days prior to
the date upon which such payment
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becomes due and payable, the Trustee shall have received the written notice
provided for in Section 10.02(b) of this Indenture (or there shall have been an
acceleration of the Notes prior to such application) or in Section 10.06 of this
Indenture. The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of, or similar proceeding
(including any assignment for the benefit of creditors or any marshalling of
assets) with respect to, the Company.
SECTION 10.15. Consent of Holders of Senior Indebtedness Under the
Senior Credit Facilities. The provisions of this Article Ten (including the
definitions contained in this Article and references to this Article contained
in this Indenture) shall not be amended in a manner that would adversely affect
the rights of the holders of Senior Indebtedness under the Senior Credit
Facilities, and no such amendment shall become effective unless the holders of
Senior Indebtedness under the Senior Credit Facilities shall have consented (in
accordance with the provisions of the Senior Credit Facilities) to such
amendment. The Trustee shall be entitled to receive and rely on an Officers'
Certificate stating that such consent has been given.
SECTION 10.16. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article Eight by the Trustee for the
payment of principal of, premium, if any, and interest on the Notes shall not be
subordinated to the prior payment of any Senior Indebtedness (provided that, at
the time deposited, such deposit did not violate any then outstanding Senior
Indebtedness), and none of the Holders shall be obligated to pay over any such
amount to any holder of Senior Indebtedness.
SECTION 10.17. Notice to Representative of Designated Senior
Indebtedness. If payment of the Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the Representative (if
any) of any issue of Designated Senior Indebtedness which is then outstanding;
provided, however, that the Company and the Trustee shall be obligated to notify
such a Representative (other than with respect to the Senior Credit Facilities)
only if such Representative has delivered or caused to be delivered an address
for the service of such a notice to the Company and the Trustee (and the Company
and the Trustee shall be obligated only to deliver the notice to the address so
specified). If a notice is required pursuant to the immediately preceding
sentence, the Company may not pay the Notes (except payment (i) in Qualified
Capital Stock issued by the Company to pay interest on the Notes or issued in
exchange for the Notes, (ii) in securities substantially identical to the Notes
issued by the Company in payment of interest accrued thereon or (iii) in
securities issued by the Company which are subordinated to the Senior
Indebtedness at least to the same extent as the Notes and have a Weighted
Average Life to Maturity at least equal to the remaining Weighted Average Life
to Maturity of the Notes), until five Business Days after the respective
Representative of the Designated Senior Indebtedness receives notice (at the
address specified in the preceding sentence) of such acceleration and,
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thereafter, may pay the Notes only if the subordination provisions of the
Indenture otherwise permit payment at that time.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the effectiveness
of the Registration Statement, this Indenture shall incorporate and be governed
by the provisions of the TIA that are required or deemed to be part of and to
govern indentures qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the provisions of the
TIA that are required or deemed to be a part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, mailed by first-class
mail or sent by telecopier transmission addressed as follows:
if to the Company:
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Chief Financial Officer
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Corporate Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it at
its address as it appears on the Security Register by first-class mail and shall
be sufficiently given to him if so mailed within the time prescribed. Any notice
or communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
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Failure to mail a notice or communication to a Holder as provided
herein or any defect in any such notice or communication shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee,
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this Section 11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.03. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
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(iii) a statement that, in the opinion of each such person, 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
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date, stated maturity or date of maturity
of any Note shall not be a Business Day, then payment of principal of, premium,
if any, or interest on such Note, as the case may be, 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, Payment Date or Redemption
Date, or at the stated maturity or date of maturity of such Note; provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Payment Date, Redemption Date, stated maturity or date of maturity, as the
case may be.
SECTION 11.07. Governing Law. This Indenture and the Notes shall be
governed by the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby. The Trustee, the
Company and the Holders agree to submit to the jurisdiction of the courts of the
State of New York in any action or proceeding arising out of or relating to this
Indenture or the Notes.
SECTION 11.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09. No Recourse Against Others. No recourse for the payment
of the principal of, premium, if any, or interest on any of the Notes, or for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company contained in this
Indenture or in any of the Notes, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any past,
present or future partner, stockholder, other equityholder, officer, director,
employee or controlling person, as such, of the Company or of any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of
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law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.
SECTION 11.10. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 11.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
85
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
REGAL CINEMAS, INC.
By:
-------------------------------------
Name: Xxxxx Xxxxxx III
Title: Chief Financial Officer
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
86
EXHIBIT A
[APPLICABLE LEGENDS]
[FACE OF NOTE]
REGAL CINEMAS, INC.
9 1/2% Senior Subordinated Note due 2008
[CUSIP] [CINS] [ISIN] [__________]
No. ____ $_________
REGAL CINEMAS, INC., a Tennessee corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _____________, or its registered assigns, the
principal sum of ______________________ ($____________) on [________,____].
Interest Payment Dates: June 1 and December 1, commencing December
1, 1998
Regular Record Dates: May 15 and November 15.
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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: May 27, 1998 REGAL CINEMAS, INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
87
A-2
(Trustee's Certificate of Authentication)
This is one of the 9 1/2% Senior Subordinated Notes due 2008 described in the
within-mentioned Indenture.
IBJ XXXXXXXX BANK & TRUST
COMPANY,
as Trustee
By:
-----------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
REGAL CINEMAS, INC.
9 1/2% Senior Subordinated Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Note on June 1, 2008.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest will be payable semiannually (to the holders of record of the
Notes at the close of business on the May 15 or November 15 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
December 1, 1998.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Notes is not declared effective by the Commission, on or before January 7, 1999
in accordance with the terms of the Registration Rights Agreement dated May 27,
1998 between the Company and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and Xxxxxxx, Sachs & Co., the annual
interest rate borne by the Notes shall be increased by 0.5% from the rate shown
above accruing from the date that is 225 days after the Issue Date, payable in
cash semiannually, in arrears, on each Interest Payment Date, commencing June 1,
1999 until the Exchange Offer is consummated or the Shelf Registration Statement
is declared effective. The Holder of this Note is entitled to the benefits of
such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from May 27, 1998,
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
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2. Method of Payment.
The Company will pay interest on the principal amount of the Notes as
provided above on each June 1 and December 1, commencing December 1, 1998 to the
persons who are Holders (as reflected in the Security Register at the close of
business on the May 15 or November 15 immediately preceding the Interest Payment
Date), in each case, even if the Note is cancelled on registration of transfer
or registration of exchange after such record date; provided that, with respect
to the payment of principal, the Company will make payment to the Holder that
surrenders this Note to a Paying Agent on or after June 1, 2008.
The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal, premium, if any, and interest by its check payable in such money. It
may mail an interest check to a Holder's registered address (as reflected in the
Security Register). If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, a Paying Agent
and the Registrar. The Company may change any authenticating agent, Paying Agent
or Transfer Agent without notice. The Company, any Subsidiary or any Affiliate
of any of them may act as a Paying Agent or a Transfer Agent.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of May 27,
1998 (the "Indenture"), between the Company and IBJ Xxxxxxxx Bank & Trust
Company, as trustee (the "Trustee"). Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Notes are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Notes under the Indenture.
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5. Optional Redemption.
The Notes are redeemable, at the Company's option, in whole or in part,
at any time or from time to time, on or after June 1, 2003 and prior to
maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount thereof on the applicable Redemption Date), plus accrued and
unpaid interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date), if redeemed during the
12-month period commencing June 1 of the years set forth below:
Redemption
Year Price
---- ----------
2003....................................... 104.750%
2004....................................... 103.167
2005....................................... 101.583
2006 and thereafter........................ 100.000
At any time and from time to time prior to June 1, 2001, the Company
may redeem up to 35% of the principal amount of the Notes with the proceeds of
one or more Equity Offerings, at a Redemption Price (expressed as a percentage
of principal amount) of 109.50%, plus accrued and unpaid interest to the
Redemption Date (subject to the rights of Holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive interest due
on an Interest Payment Date); provided that (i) at least 65% of Notes initially
issued remains outstanding after each such redemption and (ii) any such
redemption shall occur on or prior to the date that is 90 days after receipt by
the Company of the proceeds of an Equity Offering. The Company shall effect such
redemption on a pro rata basis.
Notes in original denominations larger than $1,000 may be redeemed in
part. On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require that the Company purchase all or a portion of such Holder's
Notes in cash pursuant to the offer described in Section 4.07(c) of the
Indenture, at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase.
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A-6
(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following the date on which the Company becomes aware that
a Change of Control has occurred, if the purchase of the Notes would violate or
constitute a default under any other Indebtedness of the Company, then the
Company shall, to the extent needed to permit such purchase of Notes, either (i)
repay all such Indebtedness and terminate all commitments outstanding thereunder
or (ii) obtain the requisite consents, if any, under such Indebtedness to permit
the purchase of the Notes as provided below. The Company will first comply with
the covenant in the preceding sentence before it will be required to make the
Change of Control Offer or purchase the Notes pursuant to the provisions of
Section 4.07(c) and Section 4.07(d) of the Indenture.
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at its last address as it appears in
the Security Register. Notes in original denominations larger than $1,000 may be
sold to the Company in part. On and after the Payment Date, interest ceases to
accrue on Notes or portions of Notes surrendered for purchase by the Company,
unless the Company defaults in the payment of the purchase price.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before the day of
mailing of a notice of redemption of Notes selected for redemption.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
00
X-0
00. Discharge Prior to Redemption or Maturity.
Under certain circumstances, if the Company deposits with the Trustee
money, U.S. Government Obligations or a combination thereof sufficient to pay
the then outstanding principal of, premium, if any, and accrued interest on the
Notes to redemption or maturity of the Notes, the Company may, under certain
circumstances, be discharged from the Indenture and the Notes, except in certain
circumstances for certain provisions thereof, or from certain covenants set
forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to incur additional
Indebtedness, make Restricted Payments, issue Preferred Stock of Restricted
Subsidiaries, Guarantee Indebtedness of the Company, engage in transactions with
Affiliates, or merge, consolidate or transfer substantially all of its assets.
Within 45 days after the end of each fiscal quarter (90 days after the end of
the last fiscal quarter of each year), the Company shall deliver to the Trustee
an Officers' Certificate stating whether or not the signers thereof know of any
Default or Event of Default under such restrictive covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Defaults and Remedies.
Any of the following events constitutes an "Event of Default" under the
Indenture:
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(i) the failure to pay interest on the Notes when the same
becomes due and payable and the Default continues for a period of 30
days (whether or not such payment is prohibited by the provisions of
Article Ten);
(ii) the failure to pay principal of or premium, if any, on
any Notes when such principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by the provisions of Article Ten);
(iii) a default in the observance or performance of any other
covenant or agreement contained in the Notes or this Indenture, which
default continues for a period of 60 days after the Company receives
written notice thereof specifying the default from the Trustee or
holders of at least 30% in aggregate principal amount of outstanding
Notes;
(iv) the failure to pay at the final stated maturity (after
giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness, if the aggregate principal amount of such Indebtedness,
together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final
stated maturity (giving effect to any extensions thereof) or which has
been accelerated, aggregates $20 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of
$20 million (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the Company or any
of its Significant Restricted Subsidiaries and such judgment or
judgments remain undischarged or unstayed for a period of 60 days after
such judgment or judgments become final and nonappealable;
(vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Restricted Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law for relief of
debtors now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or (C)
the winding up or liquidation of the affairs of the Company or any of
its Significant Restricted Subsidiaries and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vii) the Company or any of its Significant Restricted
Subsidiaries (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law for relief of debtors now
or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession
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by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or (C)
effects any general assignment for the benefit of creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 30%
in aggregate principal amount of the Notes then outstanding shall, declare all
the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then outstanding
may direct the Trustee in its exercise of any trust or power.
15. Subordination.
The payment of the Notes will, to the extent set forth in the
Indenture, be subordinated in right of payment to the prior payment in full, in
cash, of all Senior Indebtedness.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder,
other equityholder, officer, director, employee or controlling person, as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
00
X-00
00. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to Regal Cinemas, Inc.,
0000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000; Attention: Chief
Financial Officer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________________ attorney to transfer said Note on
the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Note and the
Indenture.
97
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
-------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
-----------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
---------------------- -----------------------------------------------
NOTICE: To be executed by an executive officer
98
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.07 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.07 of the Indenture, state the amount:
$___________________.
Date:
------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
--------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
99
EXHIBIT B
Form of Certificate
___________, _____
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Re: Regal Cinemas, Inc. (the "Company")
9 1/2% Senior Subordinated Notes due 2008 (the "Notes")
Dear Sirs:
This letter relates to U.S. $____ principal amount of Notes represented
by a Note (the "Legended Note") which bears a legend outlining restrictions upon
transfer of such Legended Note. Pursuant to Section 2.02 of the Indenture dated
as of May 27, 1998 (the "Indenture") relating to the Notes, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Notes could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Notes, all in the
manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
---------------------------------
Authorized Signature
100
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, _____
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Re: Regal Cinemas, Inc. (the "Company")
9 1/2% Senior Subordinated Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of $__________ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture dated as of May
27, 1998 (the "Indenture") relating to the Notes and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with such restrictions and conditions and the Securities Act of 1933,
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes within the time period referred to in Rule
144(k) of the Securities Act, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of an aggregate principal amount of less than $100,000,
an opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available) or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to
101
C-2
provide to any person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Company such certifications, legal opinions
and other information as you and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes purchased by us for our own account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
Authorized Signature
102
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
___________, ______
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Re: Regal Cinemas, Inc.(the "Company")
9 1/2% Senior Subordinated Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$_______ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the Securities Act of 1933 and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------------
Authorized Signature
