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EXHIBIT 4.11
XXXXX ADVERTISING COMPANY
THE GUARANTORS
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
_____________________
INDENTURE
Dated as of [__________], 1996
_____________________
$225,000,000
[____]% Senior Subordinated Notes due 2006
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . 2.10
(b) . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(b)(1) . . . . . . . . . . . . . . . . 7.10
(b)(9) . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d) . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . 4.02; 4.04; 12.02
(b) . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . 12.04; 12.05
(c)(2) . . . . . . . . . . . . . . . . 12.04; 12.05
(c)(3) . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . 7.01; 7.02
(b) . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c) . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . 6.05; 7.01; 7.02
(e) . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . 12.06
(a)(1)(A) . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . 8.02
(b) . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . 8.04
317(a)(1) . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . 2.04; 7.12
318(a) . . . . . . . . . . . . . . . . 12.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . 24
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 2. THE NOTES
Section 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . 26
Section 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . 27
Section 2.04. Paying Agent To Hold Assets in Trust . . . . . . . . . . . . . 28
Section 2.05. Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 29
Section 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.09. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.12. Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.13. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 3. REDEMPTION
Section 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.02. Selection by Trustee of Notes To Be Redeemed . . . . . . . . . 33
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 33
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . 35
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 35
Section 3.06. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 4. COVENANTS
Section 4.01. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.03. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . 37
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Section 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . 37
Section 4.05. Payment of Taxes and Other Claims . . . . . . . . . . . . . . 38
Section 4.06. Maintenance of Properties and Insurance . . . . . . . . . . . 39
Section 4.07. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 39
Section 4.08. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 40
Section 4.09. Maintenance of Office or Agency . . . . . . . . . . . . . . . 40
Section 4.10. Limitation on Additional Indebtedness and Preferred
Stock of Restricted Subsidiaries . . . . . . . . . . . . . . 41
Section 4.11. Limitation on Issuances and Sales of Preferred
Stock by Restricted Subsidiaries . . . . . . . . . . . . . . 42
Section 4.12. Limitation on Restricted Payments . . . . . . . . . . . . . . 42
Section 4.13. Limitation on Other Senior Subordinated Debt . . . . . . . . . 45
Section 4.14. Limitation on Certain Asset Sales . . . . . . . . . . . . . . 45
Section 4.15. Limitation on Transactions with Affiliates . . . . . . . . . . 49
Section 4.16. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . 50
Section 4.17. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . 50
Section 4.18. Guarantees of Certain Indebtedness . . . . . . . . . . . . . . 51
Section 4.19. Payments for Consent . . . . . . . . . . . . . . . . . . . . . 51
Section 4.20. Line of Business . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.21. Change of Control . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 5. SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets . . . . 54
Section 5.02. Successor Person Substituted . . . . . . . . . . . . . . . . . 56
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 6.04. Waiver of Past Defaults and Events of Default . . . . . . . . 59
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . 59
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 60
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Section 6.07. Rights of Holders To Receive Payment . . . . . . . . . . . . . 60
Section 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . 61
Section 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 61
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 7. TRUSTEE
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . 65
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 65
Section 7.05. Notice of Default . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . 66
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 66
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 67
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion . . . 68
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . 68
Section 7.11. Preferential Collection of Claims Against Company . . . . . . 69
Section 7.12. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . 69
Section 8.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . 70
Section 8.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . 72
Section 8.04. Revocation and Effect of Consents . . . . . . . . . . . . . . 72
Section 8.05. Notation on or Exchange of Notes . . . . . . . . . . . . . . . 73
Section 8.06. Trustee To Sign Amendments, etc. . . . . . . . . . . . . . . . 73
ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . 73
Section 9.02. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 75
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance . . . . 75
Section 9.05. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions . . . . . . . 77
Section 9.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 78
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Section 9.07. Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . 78
Section 9.08. Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 10. GUARANTEE OF NOTES
Section 10.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.02. Execution and Delivery of Guarantees . . . . . . . . . . . . 81
Section 10.03. Limitation of Guarantee . . . . . . . . . . . . . . . . . . . 81
Section 10.04. Additional Guarantors . . . . . . . . . . . . . . . . . . . . 82
Section 10.05. Release of Guarantor . . . . . . . . . . . . . . . . . . . . 82
Section 10.06. Guarantee Obligations Subordinate to Senior Indebtedness . . 83
Section 10.07. No Payment on Guarantees in Certain Circumstances . . . . . . 83
Section 10.08. Guarantee Obligations Subordinated to Prior Payment of
All Senior Indebtedness of Guarantors on Dissolution,
Liquidation or Reorganization . . . . . . . . . . . . . . . 85
Section 10.09. Holders to be Subrogated to Rights of Holders of
Senior Indebtedness of Guarantors . . . . . . . . . . . . . 86
Section 10.10. Application of Certain Article 11 Provisions . . . . . . . . 87
Section 10.11. Contribution . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE 11. SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness . . . . . . . . . . 88
Section 11.02. No Payment on Notes in Certain Circumstances . . . . . . . . 88
Section 11.03. Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation
or Reorganization . . . . . . . . . . . . . . . . . . . . . 90
Section 11.04. Holders to be Subrogated to Rights of Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 91
Section 11.05. Obligations of the Company Unconditional . . . . . . . . . . 92
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Section 11.06. Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice . . . . . . . . . . . . . . . . . . . . 92
Section 11.07. Application by Trustee of Assets Deposited With it . . . . . 93
Section 11.08. Subordination Rights Not Impaired by Acts of
or Omissions of the Company or Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 93
Section 11.09. Holders Authorize Trustee to Effectuate
Subordination of Notes . . . . . . . . . . . . . . . . . . . 94
Section 11.10. Right of Trustee to Hold Senior Indebtedness . . . . . . . . 95
Section 11.11. Article 11 Not to Prevent Events of Default . . . . . . . . . 95
Section 11.12. No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 95
ARTICLE 12. MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . 96
Section 12.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 12.03. Communications by Holders with Other Holders . . . . . . . . 97
Section 12.04. Certificate and Opinion as to Conditions Precedent . . . . . 97
Section 12.05. Statements Required in Certificate and Opinion . . . . . . . 98
Section 12.06. When Treasury Notes Disregarded . . . . . . . . . . . . . . . 98
Section 12.07. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . 99
Section 12.08. Business Days; Legal Holidays . . . . . . . . . . . . . . . . 99
Section 12.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 12.10. No Adverse Interpretation of Other Agreements . . . . . . . . 99
Section 12.11. No Recourse Against Others . . . . . . . . . . . . . . . . 100
Section 12.12. Successors . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 12.13. Multiple Counterparts . . . . . . . . . . . . . . . . . . . 100
Section 12.14. Table of Contents, Headings, etc. . . . . . . . . . . . . . 100
Section 12.15. Separability . . . . . . . . . . . . . . . . . . . . . . . 100
EXHIBITS
Exhibit A. - Form of Note . . . . . . . . . . . . . . . . . . . . . . . . A-1
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INDENTURE, dated as of [___________], 1996, among XXXXX
ADVERTISING COMPANY, a Delaware corporation, as Issuer (the "Company"), the
GUARANTORS (as hereinafter defined), and STATE STREET BANK AND TRUST COMPANY, a
trust company duly organized under the laws of the Commonwealth of
Massachusetts, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's [____]%
Senior Subordinated Notes due 2006 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (including
an Unrestricted Subsidiary) existing at the time such Person becomes a
Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean the
lesser of (x) the amount by which the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee of such
Guarantor at such date and (y) the amount by which the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities and after giving
effect to any collection from any Subsidiary of such Guarantor in respect of
the obligations of such Subsidiary under the Guarantee), excluding Indebtedness
in respect of the Guarantee, as they become absolute and matured.
"Advertising Displays" mean all posters, signs (including logo
sign structures), billboards and other
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outdoor advertising displays and related contracts and sites therefor owned or
leased (as lessee) by the Company and the Restricted Subsidiaries.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent
for service of notices and demands.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be consolidated or merged with the
Company or any Restricted Subsidiary or (ii) the acquisition by the Company or
any Restricted Subsidiary of assets of any Person.
"Asset Sale" means the sale, transfer or other disposition (other
than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions having a fair market value in
excess of $1 million of (a) any Capital Stock of or other equity interest in
any Restricted Subsidiary, (b) all or substantially all of the assets of any
business owned by the Company or any Restricted Subsidiary or a division, line
of business or comparable business segment of the Company or any Restricted
Subsidiary or (c) any other assets or property of the Company or of any
Restricted Subsidiary, (whether real or personal property). For purposes of
this definition, the term Asset Sale shall not include any sale, transfer or
other disposition that is governed by and made in accordance with Section 5.01
or any sale, transfer or
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other disposition to the Company or a Wholly-Owned Restricted Subsidiary that
is a Guarantor.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i)
cash received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such
Asset Sale, (b) payment of all brokerage commissions, underwriting and other
fees and expenses related to such Asset Sale, and (c) deduction of appropriate
amounts to be provided by the Company or such Restricted Subsidiary as a
reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or disposed of in such Asset Sale and retained by the Company or
such Restricted Subsidiary after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale,
and (ii) promissory notes and other noncash consideration received by the
Company or any Restricted Subsidiary from such Asset Sale or other disposition
upon the liquidation or conversion of such notes or noncash consideration into
cash.
"Available Asset Sale Proceeds" means, with respect to any Asset
Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clauses (iii)(a) or (iii)(b) of Section 4.14, and
which have not been the basis for an Excess Proceeds Offer in accordance with
clause (iii)(c) of such Section 4.14.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years (or any
fraction thereof) from such date to the date or dates of each successive
scheduled principal payment (including, without limitation, any sinking fund
requirements) of such Indebtedness multiplied by (b) the amount of each such
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principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means the Board of Directors of the Company
or a Guarantor, as appropriate, or any committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company or a Guarantor, as appropriate, and to be in full
force and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), excluding Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time, upon the
happening of an event or otherwise), directly or indirectly, of more than 35%
of the total voting power of all Voting Stock of the Company; provided,
however, that the Permitted Holders (i) "beneficially own" (as so defined) a
lower percentage of such total voting power with respect to the Voting Stock
than such other person or "group" and (ii) do not have the
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right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors of the Company; (b) the
Company consolidates with, or merges with or into, another person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person, or any person consolidates with,
or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is converted
into or exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of the Company is converted
into or exchanged for (1) Voting Stock (other than Disqualified Capital Stock)
of the surviving or transferee corporation or (2) cash, securities and other
property in an amount which could then be paid by the Company as a Restricted
Payment under this Indenture, or a combination thereof, and (ii) immediately
after such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted Holders, is
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person or group shall be deemed to have "beneficial
ownership" of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time, upon the happening of an event or otherwise), directly or
indirectly, of more than 50% of the total voting power of all Voting Stock of
the surviving or transferee corporation; (c) at any time during any consecutive
two-year period, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of at least 66-2/3% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation.
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"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other primary obligor
on the Notes.
"Company Request" means any written request signed in the name of
the Company by its Chief Executive Officer, its President, any Vice President,
its Chief Financial Officer or its Treasurer and attested to by the Secretary
or any Assistant Secretary of the Company.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest which, in conformity with GAAP, would be set forth
opposite the caption "interest expense" or any like caption on an income
statement for the Company and its Restricted Subsidiaries on a consolidated
basis (including, but not limited to, imputed interest included in Capitalized
Lease Obligations, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, the net
costs associated with hedging obligations, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all other
non-cash interest expense (other than interest amortized to cost of sales))
plus, without duplication, all net capitalized interest for such period and all
interest incurred or paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of any Person,
plus an amount equal to the product of (a) the aggregate dividends paid on
Disqualified Capital Stock during such period and (b) a fraction, the numerator
of which is one and the denominator of which is one minus the Company's then
effective combined tax rate, to the extent paid; provided, however, that
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"Consolidated Interest Expense" shall exclude the amortization of deferred
financing fees.
"Consolidated Net Income" means, for any period, the aggregate of
the Net Income of the Company and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP; provided, however,
that (a) the Net Income of any Person (the "other Person") in which the Company
or any of its Restricted Subsidiaries has less than a 100% interest (which
interest does not cause the net income of such other Person to be consolidated
into the net income of the Company in accordance with GAAP) shall be included
only to the extent of the amount of dividends or distributions paid to the
Company or such Restricted Subsidiary, (b) the Net Income of any Restricted
Subsidiary that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions (other than pursuant to the
Notes or this Indenture) shall be excluded to the extent of such restriction or
limitation, except that to the extent that any such restriction or limitation
results solely from covenant limitations under any SBA Indebtedness, there
shall not be deducted that portion of such Restricted Subsidiary's Net Income
which exceeds the outstanding aggregate principal amount of such SBA
Indebtedness, (c)(i) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition and
(ii) any net gain (but not loss) resulting from an Asset Sale by the Company or
any of its Restricted Subsidiaries other than in the ordinary course of
business shall be excluded, and (d) extraordinary gains and losses shall be
excluded.
"Consolidated Net Tangible Assets" means the book value of the
assets of the Company and its Restricted Subsidiaries (other than patents,
patent rights, trademarks, trade names, franchises, copyrights, licenses,
permits, goodwill and other intangible assets classified as such in accordance
with GAAP) after all applicable deductions in accordance with GAAP (including,
without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization) less all liabilities of the
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Company and its Restricted Subsidiaries determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000.
"Cumulative Consolidated Interest Expense" means, as of any date
of determination, Consolidated Interest Expense of the Company from the Issue
Date to the end of the Company's most recently ended full fiscal quarter prior
to such date, taken as a single accounting period.
"Cumulative EBITDA" means, as of any date of determination,
EBITDA of the Company from the Issue Date to the end of the Company's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Default" means any event that is, or with the passing of time or
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to Global Notes, the Person
designated as Depositary pursuant to Section 2.01 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, such Persons.
"Designated Senior Indebtedness," as to the Company or any
Guarantor, as the case may be, means any Senior Indebtedness (a) under or in
respect of the Senior Credit Facility, or (b) which at the time of
determination exceeds $10 million in aggregate principal amount (or accreted
value in the case of Indebtedness issued at a discount) outstanding or
available under a committed facility, and (i) which is specifically designated
in the instrument evidencing such Senior Indebtedness as
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"Designated Senior Indebtedness" and (ii) as to which the Trustee has been
given written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the
Company or any Restricted Subsidiary which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness.
"EBITDA" means, for any Person, for any period, an amount equal
to (a) the sum of, without duplication, (i) Consolidated Net Income for such
period, plus (ii) the provision for taxes for such period based on income or
profits to the extent such income or profits were included in computing
Consolidated Net Income and any provision for taxes utilized in computing net
loss under clause (i) hereof, plus (iii) to the extent it reduces Consolidated
Net Income during such period, Consolidated Interest Expense for such period,
plus (iv) depreciation for such period on a consolidated basis, plus (v)
amortization of intangibles for such period on a consolidated basis, plus (vi)
any other non-cash items reducing Consolidated Net Income for such period,
minus (b) all non-cash items increasing Consolidated Net Income for such
period, all for the Company and its Restricted Subsidiaries determined in
accordance with GAAP.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"fair market value" means, unless otherwise specified, with
respect to any asset or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion
to complete the transaction. Fair market value shall be determined by the
Board of Directors of the Company acting reasonably and in good faith and shall
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be evidenced by a Board Resolution of the Company delivered to the Trustee.
"Final Maturity Date" shall be the date fixed in the Indenture
for the final payment of principal on the Notes.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
"Global Note" means a Note issued to the Depositary or its
nominee in accordance with Section 2.02 and bearing the legend required by
Section 2.02.
"Guarantee" means the guarantee of the Obligations of the Company
with respect to the Notes by each Guarantor pursuant to the terms of Article 10
hereof.
"Guaranteed Permitted Unrestricted Subsidiary Obligations" shall
have the meaning set forth in the definition of "Investments."
"Guarantor" means each Subsidiary of the Company listed on the
signature pages of this Indenture and each Restricted Subsidiary which
thereafter guarantees payment of the Notes pursuant to the covenant described
under Section 4.18.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to directly or indirectly create, issue, incur (by
conversion, exchange or otherwise), assume, guarantee or otherwise become
liable with respect to (including as a result of an Asset Acquisition), or
otherwise become responsible for, contingently or otherwise any Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness or other obligation on the balance sheet of such
Person (and "incurrence," "incurred," "incurrable," and "incurring" shall have
meanings correlative to the
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foregoing); provided that a change in GAAP that results in an obligation of
such Person that exists at such time becoming Indebtedness shall not be deemed
an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding any balances that constitute accounts payable
or trade payables, and other accrued liabilities arising in the ordinary course
of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and shall also include, to the extent not otherwise
included (i) any Capitalized Lease Obligations of such Person, (ii) obligations
secured by a lien to which the property or assets owned or held by such Person
is subject, whether or not the obligation or obligations secured thereby shall
have been assumed (the amount of such obligation being deemed to be the lesser
of the value of such property or asset or the amount of the obligations so
secured), (iii) guarantees of obligations of other Persons which would be
included within this definition for such other Persons (whether or not such
items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any banker's acceptance or
for reimbursement of any obligor on any letter of credit with respect to
drawings made thereunder and not yet reimbursed, (v) in the case of the
Company, Disqualified Capital Stock of the Company or any Restricted
Subsidiary, (vi) obligations of any such Person under any Interest Rate
Agreement applicable to any of the foregoing (if and to the extent such
Interest Rate Agreement obligations would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP) and (vii) the
outstanding amount of any Guaranteed Permitted Unrestricted Subsidiary
Obligations; provided, however, that except for purposes of
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this clause (vii) obligations in respect of performance and surety bonds and in
respect of reimbursement obligations for undrawn letters of credit (whether or
not secured by a lien) supporting insurance arrangements and performance and
surety bonds, each incurred in the ordinary course of business and not as a
part of a financing transaction, for the benefit of the Company or any
Restricted Subsidiary, shall not be considered Indebtedness for purposes of
this Indenture. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above, provided (a) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the principal amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP and (b) that Indebtedness shall not include any liability for Federal,
state, local or other taxes.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement designed to protect the party indicated
therein against fluctuations in interest rates.
"Investments" means, (x) directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business), loan or capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities of, the acquisition,
by purchase or otherwise, of all or substantially all of the business or assets
or stock or other evidence of beneficial ownership of, any Person and (y) any
Permitted Unrestricted Subsidiary Obligation to the extent it is guaranteed by
the
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Company or a Restricted Subsidiary or otherwise is recourse to or obligates the
Company or any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof ("Guaranteed Permitted Unrestricted
Subsidiary Obligations"). Investments shall exclude extensions of trade credit
on commercially reasonable terms in accordance with normal trade practices.
"Issue Date" means November __, 1996.
"Junior Security" means any securities of the Company or any
other Person that are (i) equity securities without special covenants or (ii)
subordinated in right of payment to all Senior Indebtedness of the Company or
any Guarantor, as the case may be, to substantially the same extent as, or to a
greater extent than, the Notes are subordinated as provided in this Indenture,
in any event issued pursuant to a court order so providing and as to which (a)
the rate of interest on such securities shall not exceed the effective rate of
interest on the Notes on the date of this Indenture, (b) such securities shall
not be entitled to the benefits of covenants or defaults materially more
beneficial to the holders of such securities than those in effect with respect
to the Notes on the date of this Indenture and (c) such securities shall not
provide for amortization (including sinking fund and mandatory prepayment
provisions) commencing prior to the date six months following the final
scheduled maturity date of the Senior Indebtedness of the Company or Guarantor,
as the case may be (as modified by the plan of reorganization or readjustment
pursuant to which such securities are issued).
"Leverage Ratio" means the ratio of (i) the sum of the aggregate
outstanding amount of (x) Indebtedness of the Company and the Restricted
Subsidiaries and (y) except to the extent included in the previous clause (x),
Preferred Stock of the Company's Restricted Subsidiaries as of the date of
calculation on a consolidated basis in accordance with GAAP to (ii) the
Company's EBITDA for the four full fiscal quarters (the "Four Quarter Period")
ending on or prior to the date of determination for which financial statements
are available. For purposes of this definition, the Company's "EBITDA" shall
be calculated on a pro forma
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basis after giving effect to any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of the Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) at any time on or subsequent to the first day of the Four Quarter
Period and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including any EBITDA associated with such Asset Acquisition
and including any pro forma expense and cost reductions determined in
accordance with Article 11 of Regulation S-X relating to such Asset
Acquisition) occurred on the first day of the Four Quarter Period.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Maturity Date" means [________ __], 2006.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Income" means with respect to any Person for any period, the
net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock
or Indebtedness by the Company, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions and the like incurred in
connection therewith, and (b) in the case of any exchange, exercise, conversion
or surrender of outstanding securities
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of any kind for or into shares of Capital Stock of the Company which is not
Disqualified Capital Stock, the net book value of such outstanding securities
on the date of such exchange, exercise, conversion or surrender (plus any
additional amount required to be paid by the holder to the Company upon such
exchange, exercise, conversion or surrender, less any and all payments made to
the holders, e.g., on account of fractional shares and less all expenses
incurred by the Company in connection therewith).
"Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Obligations" means, with respect to any Indebtedness, including
any Guarantee, any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other expenses payable under the
documentation governing such Indebtedness or Guarantee.
"Officer" means the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer or the Secretary of
the Company or a Guarantor, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel
which counsel is reasonably acceptable to the Trustee.
"Permitted Asset Swap" means the exchange, in the ordinary course
of the outdoor advertising business, of any interest of the Company or any of
the Restricted Subsidiaries in any Advertising Display or Displays for a
similar interest in an Advertising Display or Displays of a Person other than
the Company or such Restricted Subsidiary; provided that the aggregate fair
market value (as determined
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in good faith by the Board of Directors of the Company) of the Advertising
Display or Displays being transferred by the Company or such Restricted
Subsidiary is not greater than the aggregate fair market value (as determined
in good faith by the Board of Directors of the Company) of the Advertising
Display or Displays received by the Company or such Restricted Subsidiary in
such exchange.
"Permitted Dividend Encumbrances" means encumbrances or
restrictions (a) existing on the Issue Date, (b) arising by reason of Acquired
Indebtedness of any Restricted Subsidiary existing at the time such Person
became a Restricted Subsidiary; provided that in the case of clause (b) above
such encumbrances or restrictions were not created in anticipation of such
Person becoming a Restricted Subsidiary and are not applicable to the Company
or any of the other Restricted Subsidiaries, (c) arising under Indebtedness
incurred pursuant to clause (i) of the definition of Permitted Indebtedness,
(d) arising under Refinancing Indebtedness; provided that the terms and
conditions of any such restrictions are no less favorable to the Holders of
Notes than those under the Indebtedness being refinanced, (e) customary
provisions restricting the assignment of any contract or interest of the
Company or any Restricted Subsidiary, (f) existing under an agreement relating
to SBA Indebtedness, (g) existing under an agreement relating to any Permitted
Lien referred to in clause (v) of the definition of "Permitted Liens" provided
that such encumbrance or restriction only relates to the assets or property
subject to such Permitted Lien and having an aggregate fair market value equal
to the Indebtedness secured thereby, (h) imposed by applicable law and (i)
imposed pursuant to a binding agreement which has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or of any
assets of such Restricted Subsidiary, provided such encumbrances and
restrictions apply solely to such Capital Stock or assets of such Restricted
Subsidiary which are the subject of such binding agreement.
"Permitted Holders" means (x) any of Xxxxxxx Xxxxxxx, Xxxxxxx X.
Xxxxx, III, Xxxxx X. Xxxxxx, Xx.,
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members of their immediate families or any lineal descendant of any of the
foregoing and the immediate families of any such lineal descendant, (y) any
trust, to the extent it is for the benefit of any of the foregoing or (z) any
Person, entity or group of Persons controlled by any of the foregoing.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company and any Restricted
Subsidiaries which are Guarantors pursuant to the Senior Credit Facility
in an aggregate principal amount not to exceed $400 million, less the
aggregate amount of all permanent repayments thereunder made in
accordance with Section 4.14 and guarantees of such Indebtedness by
Restricted Subsidiaries that are Guarantors;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the date of this Indenture;
(iv) Indebtedness of the Company to any Wholly-Owned Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary to the Company
or another Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred by the Company or any Restricted Subsidiary to
acquire or lease property in the ordinary course of business, provided
that (a) the aggregate amount of such Purchase Money Indebtedness and
Capitalized Lease Obligations outstanding at any time shall not exceed
the greater of (x) 5% of the Company's Consolidated Net Tangible Assets,
at the time of the incurrence of any such Purchase Money Indebtedness or
Capitalized Lease Obligation or (x) $10 million, and (b) in each case,
such Purchase Money Indebtedness or Capitalized Lease Obligation, as the
case may be, would not constitute more than 100% of the
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cost (determined in accordance with GAAP) of the property so purchased
or leased plus reasonable fees and expenses incurred in connection
therewith;
(vi) Interest Rate Agreements and any guarantees thereof;
(vii) additional Indebtedness of the Company or any Restricted
Subsidiary that is a Guarantor not to exceed $25 million in principal
amount outstanding at any time; and
(viii) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made
on or after the date of this Indenture consisting of:
(i) Investments by the Company or by a Restricted Subsidiary
in the Company or a Restricted Subsidiary which is a Guarantor;
(ii) Temporary Cash Investments;
(iii) Investments by the Company or by a Restricted Subsidiary
in a Person, if as a result of such Investment (A) such Person becomes a
Restricted Subsidiary which is a Guarantor or (B) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary which is a Guarantor; and
(iv) an Investment that is made by the Company or a Restricted
Subsidiary in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are
issued by a third party to the Company or such Restricted Subsidiary
solely as partial consideration for the consummation of an Asset Sale
that is otherwise permitted under Section 4.14 hereof.
"Permitted Liens" means (i) Liens existing on the Issue Date,
(ii) Liens on property or assets of, or any
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shares of stock of or secured debt of, any corporation existing at the time
such corporation becomes a Restricted Subsidiary or at the time such
corporation is merged into the Company or any of the Restricted Subsidiaries;
provided that such Liens are not incurred in connection with, or in
contemplation of, such corporation becoming a Restricted Subsidiary or merging
into the Company or any of the Restricted Subsidiaries, (iii) Liens securing
Refinancing Indebtedness; provided that any such Lien does not extend to or
cover any Property, shares or debt other than the Property, shares or debt
securing the Indebtedness so refunded, refinanced or extended, (iv) Liens in
favor of the Company or any of the Restricted Subsidiaries, (v) Liens to secure
Purchase Money Indebtedness that is otherwise permitted under this Indenture;
provided that any such Lien is created solely for the purpose of securing such
Purchase Money Indebtedness and does not extend to or cover any Property other
than such item of Property and any improvements on such item, (vi) statutory
liens or landlords', carriers', warehouseman's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course
of business which do not secure any Indebtedness and secure obligations with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor,
(vii) Liens for taxes, assessments or governmental charges that are being
contested in good faith by appropriate proceedings, (viii) Liens securing
Capitalized Lease Obligations permitted to be incurred under clause (v) of the
definition of Permitted Indebtedness provided that any such Lien does not
extend to any property other than that subject to the underlying lease, (ix)
Liens securing Senior Indebtedness, (x) Permitted Dividend Encumbrances and
(xi) Liens securing Indebtedness in an aggregate principal amount not to exceed
$1 million outstanding at any time.
"Permitted Unrestricted Subsidiary Obligations" shall have the
meaning specified in the definition of "Unrestricted Subsidiary."
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of other Capital Stock issued by such Person.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) under GAAP.
"Public Equity Offerings" means a public offering by the Company
of shares of its common stock (however designated and whether voting or non-
voting but excluding Disqualified Capital Stock) and any and all rights,
warrants or options to acquire such common stock pursuant to a registration
statement registered pursuant to the Securities Act.
"Purchase Money Indebtedness" means any Indebtedness incurred by
a Person to finance the cost (including the cost of construction or improvement
and in the case of any Capitalized Lease Obligation, the lease) of any real or
personal property, the principal amount of which Indebtedness does not exceed
the sum of (i) 100% of such cost and (ii) reasonable fees and expenses of such
Person incurred in connection therewith.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company or the Restricted
Subsidiaries outstanding on the Issue Date or other Indebtedness permitted to
be incurred by
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the Company or the Restricted Subsidiaries pursuant to the terms of this
Indenture (other than pursuant to clauses (i), (iv), (v), (vi) and (vii) of the
definition of Permitted Indebtedness), but only to the extent that (i) the
Refinancing Indebtedness is subordinated to the Notes to at least the same
extent as the Indebtedness being refunded, refinanced or extended, (ii) the
Refinancing Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being refunded, refinanced or extended, or (b) after the maturity
date of the Notes, (iii) the portion, if any, of the Refinancing Indebtedness
that is scheduled to mature on or prior to the maturity date of the Notes has a
weighted average life to maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the weighted average life to maturity
of the portion of the Indebtedness being refunded, refinanced or extended that
is scheduled to mature on or prior to the maturity date of the Notes, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to
or less than the sum of (a) the aggregate principal amount then outstanding
under the Indebtedness being refunded, refinanced or extended, (b) the amount
of any premium required to be paid in connection with such refunding,
refinancing or extension pursuant to the terms of such Indebtedness or the
amount of any premium reasonably determined by the Board of Directors of the
Company as necessary to accomplish such refunding, refinancing or extension by
means of a tender offer or privately negotiated purchase and (c) the amount of
customary fees, expenses and costs related to the incurrence of such
Refinancing Indebtedness, and (v) such Refinancing Indebtedness is incurred by
the same Person that initially incurred the Indebtedness being refunded,
refinanced or extended, except that the Company may incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Wholly-Owned
Restricted Subsidiary.
"Related Business" means the business conducted (or proposed to
be conducted) by the Company and its Restricted Subsidiaries as of the Issue
Date and any all businesses that in the good faith judgment of the Board of
Directors of the Company are materially related businesses.
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"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Company or any Restricted Subsidiary of the Company or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Restricted Subsidiary of the Company (other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase Capital
Stock (other than Disqualified Stock), and (y) in the case of Restricted
Subsidiaries of the Company, dividends or distributions payable to the Company
or to a Wholly-Owned Restricted Subsidiary), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Company
or any of the Restricted Subsidiaries (other than Capital Stock owned by the
Company or a Wholly-Owned Restricted Subsidiary), (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase, redemption or
other acquisition or retirement for value, prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any Indebtedness
which is subordinated or pari passu in right of payment to the Notes, (iv) the
making of any Investment or guarantee of any Investment in any Person other
than a Permitted Investment, (v) any designation of a Restricted Subsidiary as
an Unrestricted Subsidiary to the extent set forth in the definition of
Unrestricted Subsidiary and (vi) forgiveness of any Indebtedness of an
Affiliate of the Company (other than a Wholly-Owned Restricted Subsidiary) to
the Company or a Restricted Subsidiary. For purposes of determining the amount
expended for Restricted Payments, cash distributed or invested shall
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be valued at the face amount thereof and property other than cash shall be
valued at its fair market value.
"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 of the Company
may designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary of the Company 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 (other than Permitted Indebtedness)
pursuant to Section 4.10 and no Default or Event of Default shall have occurred
and be continuing.
"S&P" means Standard & Poor's Corporation and its successors.
"SBA Indebtedness" means Indebtedness incurred pursuant to the
United States Small Business Administration Disaster Relief Loan program or any
similar loan program, provided that such Indebtedness shall at all times be
prepayable without penalty at the option of the obligor.
"SEC" means the United States Securities and Exchange Commission
as constituted from time to time or any successor performing substantially the
same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit Agreements dated as of
May 19, 1993, as amended to date, and December 22, 1995, as amended to date,
respectively, among the Company, the guarantor parties thereto, the several
lenders from time to time parties thereto and The Chase Manhattan Bank, as
agent, together with the documents related 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
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from time to time, including any agreement extending the maturity of,
refinancing, replacing, consolidating or otherwise restructuring (including
adding Subsidiaries of the Company as additional guarantors 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 and whether or not increasing the amount of Indebtedness that
may be incurred thereunder.
"Senior Indebtedness" means the principal of and premium, if any,
and interest (including, without limitation, interest accruing or that would
have accrued but for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes an allowable
claim in such proceeding) on, and any and all other fees, charges, expense
reimbursement obligations, and other amounts due pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all obligations
owed to lenders under the Senior Credit Facility, (b) all obligations with
respect to any Interest Rate Agreement, (c) all obligations to reimburse any
bank or other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments, (d) all other current or future
Indebtedness which does not provide that it is to rank pari passu with or
subordinate to the Notes or the Guarantees and (e) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements to,
any of the Senior Indebtedness described above. Notwithstanding anything to
the contrary in the foregoing, Senior Indebtedness will not include (i)
Indebtedness of the Company to any of its Subsidiaries or Indebtedness of any
Subsidiary of the Company to the Company or any other Subsidiary of the
Company, (ii) Indebtedness represented by the Notes and the Guarantees, (iii)
any Indebtedness which by the express terms of the agreement or instrument
creating, evidencing or governing the same is junior or subordinate in right of
payment to any item of Senior Indebtedness, (iv) to the extent it constitutes
Indebtedness, any trade payable arising from the purchase of
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goods or materials or for services obtained in the ordinary course of business,
(v) Indebtedness represented by Disqualified Capital Stock or (vi) that portion
of any Indebtedness which is incurred in violation of this Indenture, provided,
however, that in the case of any Indebtedness (regardless of whether or not
such Indebtedness is incurred pursuant to the first or second paragraph of
Section 4.10), such Indebtedness shall not be deemed to have been incurred in
violation of this Indenture if the holder(s) of such Indebtedness or their
agent or representative shall have received a representation from the Company
to the effect that the incurrence of such Indebtedness does not violate the
provisions of this Indenture (but nothing in this clause (vi) shall preclude
the existence of any Default or Events of Default in the event that such
Indebtedness is in fact incurred in violation of this Indenture).
"Stated Maturity" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable, and when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, officers or trustees thereof is held, directly or indirectly by
such Person or any of its Subsidiaries; or (ii) in the case of a partnership,
joint venture, association or other business entity, with respect to which such
Person or any of its Subsidiaries has the power to direct or cause the
direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is
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consolidated with such Person for financial statement purposes.
"Temporary Cash Investments" or "cash equivalents" means (i)
Investments in marketable, direct obligations issued or guaranteed by the
United States of America, or of any governmental agency or political
subdivision thereof, maturing within 365 days of the date of purchase; (ii)
Investments in certificates of deposit issued by a bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia, in each case having capital, surplus and undivided profits totaling
more than $500,000,000 and rated at least A by S&P and A-2 by Xxxxx'x, maturing
within 365 days of purchase; or (iii) Investments not exceeding 365 days in
duration in money market funds that invest substantially all of such funds'
assets in the Investments described in the preceding clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer trust accounts.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company, but only so long as (i) no
portion of the Indebtedness or any other obligation (contingent or otherwise)
of such Unrestricted Subsidiary (other than obligations in respect of
performance and surety bonds and in respect of reimbursement obligations for
undrawn letters of credit supporting insurance arrangements and performance and
surety bonds, each incurred in the ordinary course of business and not as part
of a financing
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transaction (collectively, "Permitted Unrestricted Subsidiary Obligations"))
(A) is guaranteed by the Company or any Restricted Subsidiary, (B) is recourse
to or obligates the Company or any Restricted Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to satisfaction thereof,
(ii) such Unrestricted Subsidiary has no Indebtedness or any other obligation
(other than Permitted Unrestricted Subsidiary Obligations) that, if in default
in any respect (including a payment default), would permit (upon notice, lapse
of time or both) any holder of any other Indebtedness of the Company or its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity and (iii) no Default or Event of Default shall have occurred and be
continuing. Any designation of a Subsidiary as an Unrestricted Subsidiary
shall be deemed a Restricted Payment in an amount equal to the fair market
value of such Subsidiary (as determined in good faith by the Board of Directors
of the Company) and any such designation shall be permitted only if it complies
with Section 4.12. The Trustee shall be given prompt notice by the Company of
each resolution adopted by the Board of Directors of the Company pursuant to
the foregoing sentence, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Voting Stock" means, with respect to any Person, securities of
any class or classes of Capital Stock in such Person entitling the holders
thereof to vote under ordinary circumstances in the election of members of the
board of directors or other governing body of such Person.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding Voting Stock (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company.
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Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Defined
Term in Section
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . 4.15
"Bankruptcy Law" . . . . . . . . . . . . . . . 6.01
"Business Day" . . . . . . . . . . . . . . . . 12.08
"Change of Control Offer" . . . . . . . . . . . 4.21
"Change of Control Date" . . . . . . . . . . . 4.21
"Change of Control Purchase Price" . . . . . . 4.21
"Covenant Defeasance" . . . . . . . . . . . . . 9.03
"Custodian" . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . 6.01
"Excess Proceeds Offer" . . . . . . . . . . . . 4.14
"Funding Guarantor" . . . . . . . . . . . . . . 10.11
"Guarantee Payment Blockage Period" . . . . . . 10.07
"Guarantor Payment Default" . . . . . . . . . . 10.07
"Guarantor Payment Notice" . . . . . . . . . . 10.07
"Legal Defeasance" . . . . . . . . . . . . . . 9.02
"Legal Holiday" . . . . . . . . . . . . . . . . 12.08
"Offer Period" . . . . . . . . . . . . . . . . 4.14
"Pari Passu Excess Proceeds Offer . . . . . . . 4.14
"Paying Agent" . . . . . . . . . . . . . . . . 2.03
"Payment Blockage Period" . . . . . . . . . . . 11.03
"Payment Default" . . . . . . . . . . . . . . . 11.03
"Payment Notice" . . . . . . . . . . . . . . . 11.03
"Purchase Date" . . . . . . . . . . . . . . . . 4.14
"Registrar" . . . . . . . . . . . . . . . . . . 2.03
"Reinvestment Date" . . . . . . . . . . . . . . 4.14
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Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes or the Guarantees.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
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(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
The Notes (including Global Notes) and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A which is
incorporated in and made part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company may use "CUSIP" numbers in issuing the Notes. The Company shall
approve the form of the Notes. Each Note shall be dated the date of its
authentication.
If so provided in a Company Request pursuant to Section 2.02, the
Notes shall be issued under this Indenture in the form of Global Notes. In
such case, The Depositary Trust Company shall be the initial Depositary for
such Global Notes. Global Notes will be registered in the name of the
Depositary or a nominee of the Depositary.
The terms and provisions contained in the Notes and the Guarantee
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the
Company.
Such signature may be either manual or facsimile. The Company's
seal may be impressed, affixed, imprinted or reproduced on the Notes and may be
in facsimile form.
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If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate Notes
for original issue in the aggregate principal amount of $225,000,000 upon a
Company Request. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof. The
Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 and integral multiples thereof.
The Company Request directing the authentication and delivery of
Notes shall specify whether such Notes shall be issued in the form of
definitive Notes or Global Notes. If the Company Request specifies that the
Notes are to be issued in the form of one or more Global Notes, then the
Company shall execute and the Trustee shall, in accordance with this Section
and such Company Request, authenticate and deliver one or more Global Notes in
definitive form that:
(a) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Notes,
(b) shall be registered in the name of the Depositary or a
nominee of such Depositary,
(c) shall, at the instruction of the Company, be delivered by
the Trustee to the Depositary or held by the Trustee on behalf of the
Depositary, and
(d) shall include and bear a legend substantially to the
effect that unless and until it is exchanged in whole or in part for definitive
Notes, such Global Notes may not be transferred except as a whole by the
Depositary to a
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nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
The Depositary must, at the time of its designation and at all
times when it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same right as an Agent to deal with the
Company or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Notes may be presented for payment ("Paying Agent") and an office or
agency where notices and demands to or upon the Company or any Guarantor in
respect of the Notes, Guarantees and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. Neither the Company nor any Affiliate of the Company
may act as Paying Agent. The Company may change any Paying Agent, Registrar or
co-registrar without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent.
The Company shall notify the Trustee of the name and address of any such Agent.
If the Company fails to maintain a Registrar or Paying Agent, or agent for
service of notices
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and demands, or fails to give the foregoing notice, the Trustee shall act as
such. The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes and
the office or agency in the Borough of Manhattan for purposes of this Section
2.03 and 4.09 shall initially be ______________________.
Section 2.04. Paying Agent To Hold Assets in Trust.
The Trustee as Paying Agent shall, and the Company shall require
each Paying Agent other than the Trustee to agree in writing that, subject to
Articles 10 and 11, each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee in writing 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 distribute all assets
held by it to the Trustee and account for any assets disbursed and the Trustee
may at any time during the continuance of any payment default with respect to
the Notes, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent, the Paying Agent shall have
no further liability for such assets.
Section 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee as of each Record Date and on or before each related Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
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Section 2.06. Transfer and Exchange.
Subject to the provisions of this Section 2.06, when a Note is
presented to the Registrar with a request to register the transfer thereof, the
Registrar shall register the transfer as requested if the requirements of
applicable law are met and, when Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall make the exchange as requested.
To permit transfers and exchanges, upon surrender of any Note for registration
of transfer at the office or agency maintained pursuant to Section 2.03 hereof,
subject to the provisions of this Section 2.06, the Company shall execute and
the Trustee shall authenticate Notes at the Registrar's request.
Notwithstanding any other provision of this Section 2.06, unless
and until it is exchanged in whole or in part for definitive Notes, a Global
Note may not be transferred except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
If (i) the Depositary is at any time unwilling, unable or
ineligible to continue as Depositary and a successor Depositary is not
appointed by the Company within 60 days of the date the Company is so informed
in writing or becomes aware of the same, or (ii) an Event of Default has
occurred and is continuing, the Company promptly will execute and deliver to
the Trustee definitive Notes (and the Guarantors will execute and deliver the
Guarantees endorsed thereon), and the Trustee, upon receipt of a Company
Request for the authentication and delivery of such definitive Notes (which the
Company will promptly execute and deliver to the Trustee), will authenticate
and deliver definitive Notes, without charge, in an aggregate principal amount
equal to the principal amount of the outstanding Global Notes, in exchange for
all such Global Notes.
In any exchange provided for in the preceding paragraph, the
Company will execute (and the Guarantors will
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execute the Guarantees endorsed thereon) and the Trustee will authenticate and
deliver definitive Notes in the authorized denominations provided by Section
2.01.
Upon the exchange of a Global Note for definitive Notes, such
Global Note shall be canceled by the Trustee. Definitive Notes issued in
exchange for Global Notes pursuant to this Section 2.06 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration or transfer or exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar or a co-
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or a co-
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
Any exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Sections 2.09, 3.06, 4.14, 4.21 or 8.05 hereof. The Trustee shall not be
required to register transfers of Notes or to exchange Notes for a period of 15
days before selection of any Notes to be redeemed. The Trustee shall not be
required to exchange or register transfers of any Notes called or being called
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
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Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Company and the
Trustee that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. An indemnity bond may be required by the
Company or the Trustee that is sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. The Company may charge
such Holder for its reasonable, out-of-pocket expenses in replacing a Note,
including reasonable fees and expenses of counsel. Every replacement Note is
an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding until
the Company and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If a Paying Agent holds on a Redemption Date or Maturity Date
money sufficient to pay the principal of, premium, if any, and accrued interest
on Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
Subject to Section 12.06, a Note does not cease to be outstanding
solely because the Company or an Affiliate holds the Note.
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Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes
presented to it.
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent, and no
one else, shall cancel and at the written request of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or cancellation. If
the Company or any Guarantor shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.10.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the special record date, the Company shall mail or cause
to be mailed to each Noteholder, with a copy to the Trustee, a notice that
states the special record date, the payment date, and the amount of defaulted
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interest, and interest payable on such defaulted interest, if any, to be paid.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment
Date and on the Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or on the Maturity Date, as the case may
be, in a timely manner which permits the Trustee to remit payment to the
Holders on such Interest Payment Date or on the Maturity Date, as the case may
be.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes.
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 6 of
the Notes, it shall notify the Trustee of the Redemption Date and the principal
amount of Notes to be redeemed at least 30 days (unless a shorter notice shall
be satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
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Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed pro rata, by lot or by any other method
that the Trustee considers fair and appropriate and, if such Notes are listed
on any securities exchange, by a method that complies with the requirements of
such exchange; provided, however, that if a partial redemption is made with the
proceeds of a Public Equity Offering, selection of Notes for redemption shall
be made on a pro rata basis, unless such method is otherwise prohibited.
The Trustee shall make the selection from the Notes outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee
may select for redemption portions (equal to $1,000 or integral multiples
thereof) of the principal amount of Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption
Date, the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
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(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless (a) the Company defaults in making the
redemption payment or (b) such redemption payment is prohibited pursuant
to Article 10 or 11 hereof or otherwise, interest on the Notes called
for redemption ceases to accrue on and after the Redemption Date, and
the only remaining right of the Holders of such Notes is to receive
payment of the redemption price upon surrender to the Paying Agent of
the Notes redeemed;
(7) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, plus interest, if any, accrued to the
Redemption Date. Upon
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surrender to the Trustee or Paying Agent, such Notes shall be paid at the
redemption price, plus accrued interest, if any, to the Redemption Date unless
prohibited by Article 10 or 11, provided that if the Redemption Date is after a
regular interest payment record date and on or prior to the Interest Payment
Date, the accrued interest shall be payable to the Holder of the redeemed Notes
registered on the relevant record date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest, if
any, on all Notes to be redeemed on that date other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph and the
Company and the Paying Agent are not prohibited from paying such moneys to
Holders, the Notes called for redemption will cease to accrue interest and the
only right of the Holders of such Notes will be to receive payment of the
redemption price of and, subject to the proviso in Section 3.04, accrued and
unpaid interest on such Notes to the Redemption Date. If any Note called for
redemption shall not be so paid, interest will be paid, from the Redemption
Date until such redemption payment is made, on the unpaid principal of the Note
and any interest not paid on such unpaid principal, in each case, at the rate
and in the manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
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ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment and is not prohibited
from paying such money to the Holders pursuant to the terms of this Indenture
or otherwise.
The Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
The Company will deliver to the Trustee and Holders of Notes
within 15 days after the filing of the same with the SEC, copies of the
quarterly and annual report and of the information documents and other reports,
if any, which the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company will file with the SEC, to the extent permitted, and provide
the Trustee, Holders of Notes and prospective holders of Notes with such
quarterly and annual reports and such information, documents and other reports
specified in Section 13 and 15(d) of the Exchange Act. The Company will also
comply with the other provisions of TIA Section 314(a).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenant (to the extent that it
may lawfully do so) that they will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage
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of, any stay or extension law or any usury law or other law which would
prohibit or forgive the Company or such Guarantor, as the case may be, from
paying all or any portion of the principal of, premium, if any, and/or interest
on the Notes as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that they may lawfully do so) the Company
and each Guarantor hereby expressly waive all benefit or advantage of any such
law, and covenant that they 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 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company and on or before 45 days after
the end of the first, second and third quarters of each fiscal year of the
Company, an Officers' Certificate which complies with TIA Section 314(a)(4)
stating that a review of the activities of the Company and its Subsidiaries
during such fiscal year or fiscal quarter, as the case may be, has been made
under the supervision of the signing Officers with a view to determining
whether each has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action each is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has
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occurred, a description of the event and what action each is taking or proposes
to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.02 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of this Article 4 or Article 5 hereof of
this Indenture or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants
shall not be liable directly or indirectly for any failure to obtain knowledge
of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
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appropriate proceedings and an adequate reserve has been established therefor
to the extent required by GAAP.
Section 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used in, or useful
to the conduct of, its business or the business of any of its Subsidiaries to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company are adequate and appropriate for
the conduct of the business of the Company and such Restricted Subsidiaries in
a prudent manner, 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, in the good
faith judgment of the Company, for corporations similarly situated in the
industry, unless the failure to provide such insurance (together with all other
such failures) would not have a
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material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
Section 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries to,
comply with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of its businesses and the ownership of its properties, except for
such noncompliances as would not in the aggregate have a material adverse
effect on the business or financial condition of the Company and its
Subsidiaries, taken as a whole.
Section 4.08. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company and of
each Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.09. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes may be
surrendered for registration of transfer
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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 shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 12.02.
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.
The Company shall give prompt written notice to the Trustee of
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee set forth in Section 12.02 as such office of the Company.
Section 4.10. Limitation on Additional Indebtedness and Preferred Stock of
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) other than Permitted Indebtedness and will not permit
any Restricted Subsidiary to issue any Preferred Stock, unless (a) after giving
effect to the incurrence of such Indebtedness and the issuance of any such
Preferred Stock and the receipt and application of the proceeds thereof, the
Company's Leverage Ratio is less than (i) 6.50 to 1 if such Indebtedness is
incurred or Preferred Stock is issued, as the case may be, on or prior to
_____________, 1999, (ii) 6.25 to 1 if such Indebtedness is incurred or
Preferred Stock is issued, as the case may be, after _______________, 1999 and
on or prior to _______________, 2001 and (iii) 6.00 to 1 if such Indebtedness
is incurred or Preferred Stock is issued, as the case may be thereafter, and
(b) no Default or Event of
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Default shall have occurred and be continuing at the time or as a consequence
of the incurrence of such Indebtedness or issuance of such Preferred Stock.
Notwithstanding the foregoing, Preferred Stock may only be issued by a
Restricted Subsidiary of the Company pursuant to the preceding sentence to the
extent such Restricted Subsidiary is a Guarantor.
Notwithstanding the foregoing, the Company and the Restricted
Subsidiaries may incur Permitted Indebtedness; provided that the Company will
not incur any Permitted Indebtedness that ranks junior in right of payment to
the Notes that has a maturity or mandatory sinking fund payment prior to the
maturity of the Notes.
Section 4.11. Limitation on Issuances and Sales of Preferred Stock by
Restricted Subsidiaries.
The Company (a) will not permit any of its Restricted
Subsidiaries to issue any Preferred Stock (other than to the Company or a
Wholly-Owned Restricted Subsidiary of the Company or as permitted by the first
paragraph of Section 4.10) and (b) will not permit any Person (other than the
Company or a Wholly-Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company; provided, however,
that this Section 4.11 shall not prohibit the issuance and sale of (x) all, but
not less than all, of the issued and outstanding Capital Stock of any
Restricted Subsidiary of the Company owned by the Company or any of its
Restricted Subsidiaries in compliance with the other provisions of this
Indenture or (y) to the extent mandated by applicable law, directors'
qualifying shares or investments by foreign nationals.
Section 4.12. Limitation on Restricted Payments.
The Company will not make, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or
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immediately after giving effect to such Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made after
the Issue Date does not exceed the sum of (1) 100% of the Company's
Cumulative EBITDA minus 1.4 times the Company's Cumulative Consolidated
Interest Expense, plus (2) 100% of the aggregate Net Proceeds and the
fair market value of securities or other property received by the
Company from the issue or sale, after the Issue Date, of Capital Stock
(other than Disqualified Capital Stock or Capital Stock of the Company
issued to any Subsidiary of the Company) of the Company or any
Indebtedness or other securities of the Company convertible into or
exercisable or exchangeable for Capital Stock (other than Disqualified
Capital Stock) of the Company which has been so converted or exercised
or exchanged, as the case may be, plus (3) $25 million plus (4) the net
reductions in Investments (other than reductions in Permitted
Investments) in any Person resulting from payments of interest on
Indebtedness, dividends, repayments of loans, partial or total releases
or discharges of Guaranteed Permitted Unrestricted Subsidiary
Obligations, or from designations of Unrestricted Subsidiaries as
Restricted Subsidiaries, valued in each case at the fair market value
thereof, not to exceed the amount of Investments previously made by the
Company and its Restricted Subsidiaries in such Person. For purposes of
determining under this clause (c) the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof
and property other than cash shall be valued at its fair market value as
determined by the Board of Directors of the Company reasonably and in
good faith.
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The provisions of this Section 4.12 shall not prohibit (i) the
payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture, (ii) the retirement of any shares of Capital
Stock of the Company or Indebtedness which is subordinated or pari passu in
right of payment to the Notes by conversion into, or by or in exchange for,
shares of Capital Stock (other than Disqualified Capital Stock), or out of the
Net Proceeds of the substantially concurrent sale (other than to a Subsidiary
of the Company) of other shares of Capital Stock of the Company (other than
Disqualified Capital Stock); provided, however, that the amount of any such Net
Proceeds that are utilized for any such retirement shall be excluded from
clause (c)(2) of the previous paragraph, (iii) the redemption or retirement of
Indebtedness of the Company which is subordinated or pari passu in right of
payment to the Notes in exchange for, by conversion into, or out of the Net
Proceeds of, a substantially concurrent sale or incurrence of Indebtedness of
the Company (other than any Indebtedness owed to a Subsidiary of the Company)
that is, with respect to any such subordinated Indebtedness, contractually
subordinated in right of payment to the Notes to at least the same extent as
the subordinated Indebtedness being redeemed or retired, with respect to any
such pari passu Indebtedness, pari passu or subordinated in right of payment to
the Notes and, with respect to any such subordinated or pari passu
Indebtedness, (x) has no Stated Maturity earlier than the 91st day after the
Final Maturity Date or the final maturity date of the Indebtedness being
redeemed or retired, whichever is earlier and (y) has an Average Life to Stated
Maturity equal to or greater than the remaining Average Life to Stated Maturity
of the Indebtedness being redeemed or retired; provided, however, that the
amount of any such Net Proceeds that are utilized for any such redemption or
retirement shall be excluded from clause (c)(2) of the preceding paragraph,
(iv) the funding of loans (but not including the forgiveness of any such loan)
to executive officers, directors and shareholders for relocation loans, bonus
advances and other purposes consistent with past practices or the purchase,
redemption or other acquisition for value of shares of Capital Stock of
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the Company (other than Disqualified Capital Stock) or options on such shares
held by the Company's or the Restricted Subsidiaries' officers or employees or
former officers or employees (or their estates or trusts or beneficiaries under
their estates or trusts for the benefit of such beneficiaries) upon the death,
disability, retirement or termination of employment of such current or former
officers or employees pursuant to the terms of an employee benefit plan or any
other agreement pursuant to which such shares of Capital Stock or options were
issued or pursuant to a severance, buy-sell or right of first refusal agreement
with such current or former officer or employee; provided that the aggregate
amount of any such loans funded and cash consideration paid, or distributions
made, pursuant to this clause (iv) do not in any one fiscal year exceed $1
million, and (v) the making of Investments in Unrestricted Subsidiaries and
joint ventures in an aggregate amount not to exceed $20 million; provided,
however, that the Company or the Restricted Subsidiaries may make additional
Investments pursuant to this clause (v) up to an aggregate amount not to exceed
$10 million if the Company is able, at the time of any such Investment and
immediately after giving effect thereto, to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.10; provided, further, that in calculating the aggregate amount of Restricted
Payments made subsequent to the Issue Date for purposes of clause (c) of the
immediately preceding paragraph, amounts expended pursuant to clause (i) and
(v) shall be included in the calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.12 were computed, which calculations
may be based upon the Company's latest available financial statements, and that
no Default or Event of Default exists and is continuing and no Default or Event
of Default will occur immediately after giving effect to any Restricted
Payments.
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Section 4.13. Limitation on Other Senior Subordinated Debt.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness that is both (i) subordinate in right of payment to any Senior
Indebtedness of the Company or any of the Guarantors, as the case may be, and
(ii) senior in right of payment to the Notes or any of the Guarantees, as the
case may be.
Section 4.14. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Company's Board of Directors, and
evidenced by a Board Resolution); (ii) not less than 75% of the consideration
received by the Company or such Restricted Subsidiary, as the case may be, is
in the form of cash or Temporary Cash Investments; provided, however, that the
amount of (x) any liabilities of the Company or any Restricted Subsidiaries
that are assumed by the transferee of such assets and for which the Company and
its Restricted Subsidiaries are released, including any such Indebtedness of a
Restricted Subsidiary whose stock is purchased by the transferee and (y) any
notes or other securities received by the Company or any such Restricted
Subsidiary which are converted into cash within 180 days of such Asset Sale (to
the extent of cash received) shall be deemed to be cash for purposes of this
provision; provided, further, that the Company or such Restricted Subsidiary
will not be required to comply with this clause (ii) with respect to a
Permitted Asset Swap; and (iii) the Asset Sale Proceeds received by the Company
or such Restricted Subsidiary are applied (a) first, to the extent the Company
elects, or is required, to permanently prepay, repay or purchase existing
Senior Indebtedness (or Purchase Money Indebtedness that ranks pari passu in
right of payment with the Notes solely to the extent that such Asset Sale
involves property or assets securing such Purchase Money Indebtedness pursuant
to
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a Lien granted pursuant to clause (v) of the definition of Permitted Liens)
within 270 days following the receipt of the Asset Sale Proceeds from any Asset
Sale; provided that any such repayment shall result in a permanent reduction of
the commitments thereunder in an amount equal to the principal amount so
repaid; (b) second, to the extent of the balance of Asset Sale Proceeds after
application as described above, to the extent the Company elects, to an
investment in assets (including Capital Stock or other securities purchased in
connection with the acquisition of Capital Stock or property of another Person)
used or useful in businesses similar or ancillary to the business of the
Company and the Restricted Subsidiaries as conducted at the time of such Asset
Sale, provided that such investment occurs and such Asset Sale Proceeds are so
applied within 270 days following the receipt of such Asset Sale Proceeds (the
"Reinvestment Date"); and (c) third, if on the Reinvestment Date with respect
to any Asset Sale, the Available Asset Sale Proceeds exceed $10 million, the
Company shall apply an amount equal to such Available Asset Sale Proceeds to an
offer to repurchase the Notes, at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (an "Excess Proceeds Offer"); provided, however, that the Company
may, at the time that it makes any such Excess Proceeds Offer, also offer to
purchase, at a price in cash equal to 100% of the outstanding principal amount
thereof plus accrued and unpaid interest, if any, to the purchase date, any
Indebtedness which ranks pari passu in right of payment to the Notes (a "Pari
Passu Excess Proceeds Offer") and to the extent the Company so elects to make a
Pari Passu Excess Proceeds Offer, Notes and such pari passu Indebtedness shall
be purchased pursuant to such Excess Proceeds Offer and Pari Passu Excess
Proceeds Offer, respectively, on a pro rata basis based on the aggregate
principal amount of such Notes and pari passu Indebtedness then outstanding.
To the extent that the aggregate principal amount of Notes tendered pursuant to
an Excess Proceeds Offer is less than the Available Asset Sale Proceeds, the
Company may use such deficiency for general corporate purposes. To the extent
that the aggregate principal amount of pari passu Indebtedness tendered
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pursuant to a Pari Passu Excess Proceeds Offer is less than such pari passu
Indebtedness' pro rata share of such Available Asset Sale Proceeds, the Company
shall use such remaining Available Asset Sale Proceeds to purchase any Notes
validly tendered and not withdrawn pursuant to such Excess Proceeds Offer. If
the aggregate principal amount of Notes validly tendered and not withdrawn by
holders thereof exceeds the Available Asset Sale Proceeds or to the extent the
Company elects to make a Pari Passu Excess Proceeds Offer, exceeds the Notes'
pro rata share of such Available Asset Sale Proceeds, then Notes to be
purchased will be selected on a pro rata basis. Upon completion of such Excess
Proceeds Offer, the amount of Available Asset Sale Proceeds shall be reset to
zero.
(b) If the Company is required to make an Excess Proceeds
Offer, the Company shall mail, within 30 days following the Reinvestment Date,
a notice to the Holders with a copy to the Trustee which shall include, among
other things, the instructions, determined by the Company, that each such
Holder must follow in order to have such Notes repurchased and the calculations
used in determining the amount of Available Asset Sale Proceeds to be applied
to the repurchase of such Notes. The notice, which shall govern the terms of
the Excess Proceeds Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.14 and that the Excess Proceeds Offer shall remain open
for a period of 20 Business Days following its commencement or such
longer period as may be required by law (the "Offer Period");
(2) that such Holders have the right to require the Company to
apply the Available Asset Sale Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase;
(3) the purchase price and the purchase date (the "Purchase
Date") which shall be no earlier than 30 days and not later than 60 days
from the date such notice is mailed;
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(4) that any Note not tendered or accepted for payment will
continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date;
(6) that Holders electing to have a Note purchased pursuant to
any Excess Proceeds Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice at
least three Business Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Xxxxxx is withdrawing his election to have the Note
purchased;
(8) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered;
(9) whether the Company is also making a Pari Passu Excess
Proceeds Offer and to the extent the Company is also making such a Pari
Passu Excess Proceeds Offer the aggregate principal amount of Notes and
such pari passu Indebtedness which may be purchased by the Company on a
pro rata basis based on the aggregate principal amount of Notes and such
pari passu Indebtedness then outstanding (including any calculations
with respect thereto); and
(10) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset Sale Proceeds or to
the extent the Company elects
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to make a Pari Passu Excess Proceeds Offer, the Notes' pro rata share of
such Available Asset Sale Proceeds, the Company shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof tendered pursuant to the Excess Proceeds Offer, deposit
with the Paying Agent U.S. legal tender sufficient to pay the purchase price
plus accrued interest, if any, on the Notes to be purchased and deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.14. The Paying Agent shall promptly (but in any case not later than
three Business Days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Note tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Note, and the Trustee shall authenticate and mail or make available
for delivery such new Note to such Holder equal in principal amount to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Excess Proceeds Offer on the Purchase
Date.
Section 4.15. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
the Restricted Subsidiaries owns a minority interest) or holder of 5% or more
of the Company's Common Stock (each of the foregoing, an "Affiliate
Transaction") or extend, renew, waive or otherwise modify
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the terms of any Affiliate Transaction entered into prior to the Issue Date
unless the terms of such Affiliate Transaction are fair and reasonable to the
Company or such Restricted Subsidiary, as the case may be, and the terms of
such Affiliate Transaction are at least as favorable as the terms which could
be obtained by the Company or such Restricted Subsidiary, as the case may be,
in a comparable transaction made on an arm's-length basis between unaffiliated
parties. In any Affiliate Transaction involving an amount or having a value in
excess of $1 million, the Company must obtain a Board Resolution approved by a
majority of the members of the Board of Directors of the Company (and a
majority of the disinterested members of the Board of Directors of the Company)
certifying that such Affiliate Transaction complies with this Section 4.15. In
any Affiliate Transaction with a value in excess of $5 million, the Company
must obtain a written opinion that such Affiliate Transaction complies with
this Section 4.15 from an independent investment banking firm of nationally
recognized standing.
(b) The foregoing provisions will not apply to (i) any
Restricted Payment that is not prohibited by Section 4.12, (ii) any transaction
between the Company and any of its Restricted Subsidiaries or between
Restricted Subsidiaries, or (iii) the payment of reasonable and customary
regular fees to directors of the Company who are not employees of the Company
and any employment and consulting agreements entered into by the Company or any
Restricted Subsidiary with their executives or consultants in the ordinary
course of business.
Section 4.16. Limitations on Liens.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any Property,
assets, income or profits of the Company or any Restricted Subsidiary or any
shares of stock or debt of any Restricted Subsidiary (whether or not any of the
foregoing is now owned or hereafter acquired), unless (i) if such Lien secures
Indebtedness which is pari passu in right of payment with
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the Notes, then the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligation is no longer secured
by a Lien or (ii) if such Lien secures Indebtedness which is subordinated in
right of payment to the Notes, any such Lien shall be subordinated to the Lien
granted to the Holders of the Notes in the same collateral as that securing
such Lien to the same extent as such subordinated Indebtedness is subordinated
to the Notes.
Section 4.17. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions to the Company or any Restricted Subsidiary on its Capital Stock,
(b) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (c)
make loans or advances to the Company or any Restricted Subsidiary, (d)
transfer any of its properties or assets to the Company or any Restricted
Subsidiary, (e) grant Liens on or security interests on the assets of the
Company or the Restricted Subsidiaries in favor of the Holders of the Notes, or
(f) guarantee the Notes or any renewals or refinancings thereof, except for
Permitted Dividend Encumbrances.
Section 4.18. Guarantees of Certain Indebtedness.
The Company will not permit any of the Restricted Subsidiaries
(other than the Guarantors) to (a) incur, guarantee or secure through the
granting of Liens the payment of any Indebtedness of the Company or any other
Restricted Subsidiary or (b) pledge any intercompany notes representing
obligations of any of the Restricted Subsidiaries to secure the payment of any
Indebtedness of the Company, in each case unless such Restricted Subsidiary,
the Company and the Trustee execute and deliver a supplemental indenture
evidencing such Restricted Subsidiary's Guarantee of the Notes pursuant to
Article 10
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of this Indenture. Thereafter, such Restricted Subsidiary shall be a Guarantor
for all purposes of this Indenture.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Notes which so consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
Section 4.20. Line of Business.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly engage to any substantial extent in any
line or lines of business activity other than that which, in the reasonable
good faith judgment of the Board of Directors of the Company, is a Related
Business.
Section 4.21. Change of Control.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence, the "Change of Control Date"), the Company will notify the
Holders of the Notes in writing of such occurrence and shall make an offer to
purchase (a "Change of Control Offer"), and shall purchase, on a Business Day
(a "Change of Control Purchase Date") not more than 60 nor less than 30 days
following the Change of Control Date all of the then outstanding Notes at a
purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the Change of Control Purchase Date.
(b) Notice of a Change of Control Offer shall be sent, by
first-class mail, postage prepaid, by the Company not later than the 30th day
after the Change of Control Date to the Holders of the Notes at their last
registered
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addresses with a copy to the Trustee and the Paying Agent. The Change of
Control Offer shall remain open from the time of mailing for at least 20
Business Days and until 5:00 p.m., New York City time, on the Change of Control
Purchase Date. The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.21 and that all Notes validly tendered into the Change of
Control Offer and not withdrawn will be accepted for payment;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Note, the Change of Control Purchase Date and
the date on which the Change of Control Offer expires;
(iii) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(iv) that, unless the Company shall default in the payment of
the purchase price, any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
(v) that Holders electing to have Notes purchased pursuant to
a Change of Control Offer will be required to surrender their Notes to
the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Purchase Date and
must complete any form of letter of transmittal proposed by the Company
and reasonably acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New
York City time, on the Change of Control Purchase Date, a tested telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder
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delivered for purchase, the Note certificate number (if any) and a
statement that such Xxxxxx is withdrawing its election to have such
Notes purchased;
(vii) that Holders whose Notes are purchased only in part will
be issued Notes equal in principal amount to the unpurchased portion of
the Notes surrendered;
(viii) the instructions that Holders must follow in order to
tender their Notes; and
(ix) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
SEC pursuant to the Exchange Act (or, if the Company is not then
permitted to file any such reports with the SEC, the comparable reports
prepared pursuant to Section 4.02), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such
Change of Control and such other information concerning the
circumstances and relevant facts regarding such Change of Control Offer
as would be material to a Holder of Notes in connection with the
decision of such Holder as to whether or not it should tender Notes
pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof validly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, sufficient to pay the purchase price of all Notes
or portions thereof so tendered and accepted and (iii) deliver to the Trustee
the Notes so accepted together with an Officers' Certificate setting forth the
Notes or portions thereof tendered to and accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to the Holders of Notes so
accepted payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be issued in an original principal
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amount in denominations of $1,000 and integral multiples thereof. Any Notes
not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Change
of Control Offer not later than the first Business Day following the Change of
Control Purchase Date.
(c) (i) If the Company or any Restricted Subsidiary has issued
any outstanding Indebtedness that is subordinated in right of payment to the
Notes or the Guarantee of such Restricted Subsidiary, as the case may be, or
the Company or any Restricted Subsidiary has issued any Preferred Stock, and
the Company or such Restricted Subsidiary is required to make a change of
control offer or to repurchase or make a distribution with respect to such
subordinated Indebtedness or Preferred Stock in the event of a change of
control, the Company or such Restricted Subsidiary shall not consummate any
such change of control offer, repurchase or distribution with respect to such
subordinated Indebtedness or Preferred Stock until such time as the Company
shall have paid the Change in Control Purchase Price in full to Holders of
Notes that have accepted the Company's Change of Control Offer and shall
otherwise have consummated the Change of Control Offer made to Holders of the
Notes and (ii) the Company or any Restricted Subsidiary will not issue
Indebtedness that is subordinated in right of payment to the Notes or the
Guarantee of such Restricted Subsidiary and the Company and its Restricted
Subsidiaries will not issue Preferred Stock with change of control provisions
requiring the payment of such Indebtedness or Preferred Stock prior to the
payment of the Notes in the event of a Change of Control under this Indenture.
In the event that a Change of Control occurs and the holders of
Notes exercise their right to require the Company to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of
Rule 14e-1 as then in effect with respect to such repurchase.
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ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or Persons, and
the Company will not permit any of its Restricted Subsidiaries to enter into
any such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless at the
time of and after giving effect thereto (i) either (A) if the transaction or
series of transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person formed by
such consolidation or into which the Company or such Restricted Subsidiary is
merged or to which the properties and assets of the Company or such Restricted
Subsidiary, as the case may be, are transferred (any such surviving person or
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Company
under the Notes and this Indenture, and in each case, this Indenture shall
remain in full force and effect; and (ii) immediately before and immediately
after giving effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), no Default
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or Event of Default shall have occurred and be continuing and the Company or
the Surviving Entity, as the case may be, after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.10 hereof (assuming a market rate of
interest with respect to such additional Indebtedness).
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.01, the Company shall deliver, or
cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such transaction
or transactions have been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Restricted Subsidiary in
accordance with Section 5.01 above, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer 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 corporation had been named as the Company herein, and thereafter
(except with respect to any such transfer which is a lease) the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Notes.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not
such payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any
Note 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 11 hereof;
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 45
days after written notice from the Trustee or the Holders of not less
than 25% in the aggregate principal amount of the Notes then
outstanding;
(4) there is a default or are defaults under one or more
agreements, instruments, mortgages, bonds, debentures or other evidences
of Indebtedness under which the Company or any Restricted Subsidiary of
the Company then has outstanding Indebtedness in excess of $10 million,
individually or in the aggregate, and either (a) such Indebtedness is
already due and payable in full or (b) such default or defaults have
resulted in the acceleration of the maturity of such Indebtedness;
(5) a court of competent jurisdiction enters a final judgment
or judgments which can no longer be appealed for the payment of money in
excess of $10 million (not covered by insurance) against the Company or
any Restricted Subsidiary and such judgment remains
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undischarged for a period of 60 consecutive days during which a stay of
enforcement of such judgment shall not be in effect;
(6) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become
due; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Restricted Subsidiary or for all or substantially all of the
property of the Company or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any
Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee,
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assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of
any Default (except in payment of principal or premium, if any, or interest on
the Notes) in accordance with Section 7.05.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising
under Section 6.01(6) or (7)) occurs and is continuing, the Trustee by written
notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may by written notice to the
Company and the Trustee declare that the entire principal amount of all the
Notes then outstanding plus accrued and unpaid interest to the date of
acceleration are immediately due and payable, in which case either (i) such
amounts shall become immediately due and payable; or (ii) if there are any
amounts outstanding under or in respect of the Senior Credit Facility, such
amounts shall become due and payable upon the first to occur of an acceleration
under or in respect of the Senior Credit Facility or five Business Days after
receipt by the Company and the agent for the lenders under the Senior Credit
Facility of notice of the acceleration of the Notes; provided, however, that
after such acceleration but before a judgment or decree based on such
acceleration is obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the outstanding Notes may rescind and annul such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid and (iii) if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.01(6) or (7) with respect to
the
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Company occurs, such principal, premium, if any, and interest amount with
respect to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of the
Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. 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.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding 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
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the Trustee by this Indenture. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of another Noteholder or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights
of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture (but in any
event subject to the provisions of Articles 10 and 11), the right of any Holder
of a Note to
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receive payment of principal of, or premium, if any, and interest of the Note
on or after the respective due dates expressed in the Note, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or the Guarantors (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate then borne by the Notes, and such further amounts 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 the
Noteholders allowed in any judicial proceedings relative to the Company or the
Guarantors (or any other obligor upon the Notes), any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of
its charges and expenses to the extent that any such charges and expenses are
not paid out of the estate in any such proceedings and any custodian in any
such judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to
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the making of such payments directly to the Noteholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan or 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 Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest as to each, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders 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 in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of
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the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 hereof or a suit by
Holders of more than 10% in principal amount of the Notes then outstanding.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the same circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 and 6.05 hereof.
(d) 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 rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person.
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The Trustee need not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 12.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full
and complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
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 make loans to, accept deposits from,
perform services for or otherwise deal with the Company or any Guarantor, or
any
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Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes or any money paid to the
Company pursuant to the terms of this Indenture and it shall not be responsible
for any statement in the Notes other than its certificate of authentication.
Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Noteholder notice
of the Default or the Event of Default, as the case may be, within 30 days
after it occurs. Except in the case of a Default or an Event of Default in
payment of the principal of, or premium, if any, or interest on any Note the
Trustee may withhold the notice if and so long as the Board of Directors of the
Trustee, the executive committee or any trust committee of such board and/or
its Trust Officers in good faith determine(s) that withholding the notice is in
the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of each year, commencing the May 15
following the date of this Indenture, the Trustee shall mail to each Noteholder
a brief report dated as of such May 15 that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders
shall be filed with the SEC, the New York Stock Exchange and each other stock
exchange, if any, on which the Notes are listed. The Company shall promptly
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notify the Trustee when the Notes are listed on any other stock exchange and
the Trustee shall comply with TIA Section 313(d).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of 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 it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations. Notwithstanding the
foregoing, the Company and the Guarantors need not reimburse the Trustee for
any expense or indemnify it against any loss or liability incurred by the
Trustee through its negligence or bad faith. To secure the payment obligations
of the Company and the Guarantors 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 except such money or property held in trust to pay principal of and
interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section
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6.01(6) or (7) hereof occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the removed Trustee in writing and
may appoint a successor Trustee with the Company's written consent which
consent shall not be unreasonably withheld. The Company may remove the Trustee
at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise 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 notify each
Holder of such event and shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the provision in Section
310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee
to execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any obligor
on the Notes) in trust for the benefit of Holders of the Notes or the
Trustee;
(2) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(3) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to
certificated Notes;
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(3) to add new Subsidiary Guarantors pursuant to Section
10.04;
(4) to comply with any requirements of the SEC under the TIA;
or
(5) to cure any ambiguity, defect or inconsistency, or to make
any other change that does not adversely affect the rights of any
Noteholder.
The Trustee is hereby authorized to join with the Company and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company, the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes with the written consent of the Holders of not less than
a majority in aggregate principal amount of the outstanding Notes without
notice to any Noteholder. The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes
without notice to any Noteholder. Subject to Section 8.04, without the consent
of each Noteholder affected, however, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of
interest on any Note;
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(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) make any Note payable in money other than that stated in
the Note;
(5) change the amount or time of any payment required by the
Notes or reduce the premium payable upon any redemption of the Notes, or
change the time before which no such redemption may be made;
(6) waive a default in the payment of the principal of,
interest on, or redemption payment with respect to, any Note;
(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(8) amend, alter, change or modify the obligation of the
Company to make and consummate a Change of Control Offer in the event of
a Change of Control or make and consummate an Excess Proceeds Offer
after such obligation has arisen or waive any Default in the performance
of any such offers or modify any of the provisions or definitions with
respect to any such offers; or
(9) take any other action otherwise prohibited by this
Indenture to be taken without the consent of each holder affected
thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the notice of revocation before the date the amendment, supplement, waiver or
other action becomes effective.
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 which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only such 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, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described
in any of clauses (1)
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through (10) of Section 8.02 hereof. In that case the amendment, supplement,
waiver or other action shall bind each Holder of a Note who has consented to it
and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal of
and interest on a Note, on or after the respective due dates expressed in such
Note, or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Note about the changed terms and return it to the Holder. 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 security 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 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company or any Guarantor may not sign an amendment or
supplement until the Board of Directors of the Company or such Guarantor, as
appropriate, approves it.
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ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations
under the Notes, the Guarantees and this Indenture, except the obligations
referred to in the last paragraph of this Section 9.01, if there shall have
been canceled by the Trustee or delivered to the Trustee for cancellation all
Notes theretofore authenticated and delivered (other than any Notes that are
asserted to have been destroyed, lost or stolen and that shall have been
replaced as provided in Section 2.07 hereof) and the Company has paid all sums
payable by it hereunder or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantors' obligations under
the Notes, the Guarantees and this Indenture except for those surviving
obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall
survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged
from its obligations with respect to the Notes and the Guarantors discharged
from their obligations under the Guarantees on the date the conditions set
forth in Section 9.04 below are satisfied (hereinafter, "Legal Defeasance").
For this purpose, such Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the Notes
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall, subject to Section 9.06 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or
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discharged hereunder: (A) the rights of Holders of outstanding Notes to
receive solely from the trust funds described in Section 9.04 hereof and as
more fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the rights, powers, trusts, duties,
and immunities of the Trustee hereunder (including claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 9, the Company may exercise its option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company and the Guarantors shall be released from their respective obligations
under Sections 4.02 through 4.08 and Sections 4.10 through 4.21 hereof,
inclusive, and Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 9.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Company and the Guarantors may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section
9.02 or Section 9.03 hereof to the outstanding Notes:
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(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article 9 applicable to it) as funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Notes, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and accrued interest on
the outstanding Notes at the maturity date of such principal, premium,
if any, or interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in accordance with the
terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, or
shall have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in respect of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes of the TIA
with respect to any securities of the Company;
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(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any
other agreement or instrument to which the Company is a party or by
which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee will be required
to register as an investment company under the Investment Company Act of
1940, as amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
or (ii) there has been a change in any applicable Federal income tax law
with the effect that, and such opinion shall confirm that, the Holders
of the outstanding Notes or persons in their positions will not
recognize income, gain or loss for Federal income tax purposes solely as
a result of such Legal Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner, including as a result of
prepayment, and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance
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under Section 9.02 above or the Covenant Defeasance under Section 9.03
hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was not
made by the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or
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U.S. Government Obligations held by it as provided in Section 9.04 hereof
which, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02, 9.03 or 9.04
hereof 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 and each Guarantor's obligations
under this Indenture, the Notes and the Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 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 9.01, 9.02, 9.03 or
9.04 hereof; provided, however, that if the Company or the Guarantors have
made any payment of principal of, premium, if any, or accrued interest on any
Notes because of the reinstatement of their obligations, the Company or the
Guarantors, as the case may be, 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.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Company (or, if such moneys had been deposited by the Guarantors, to such
Guarantors), and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
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Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Company or the Guarantors in trust for the payment of the principal
of, or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which
the principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
and the Guarantors for the payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Noteholder affected, at the address shown in
the register of the Notes maintained by the Registrar pursuant to Section 2.03
hereof, or cause to be published once a week for two successive weeks, in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in the City of New York, New York, a
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors or the release
of any money held in trust by the Company or any Guarantors, as the case may
be, Noteholders entitled to the money must look only to the Company and the
Guarantors for payment as general creditors unless applicable abandoned
property law designates another person.
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ARTICLE 10.
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor
hereby jointly and severally unconditionally guarantees to each Holder and to
the Trustee, on behalf of the Holders, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
of, and premium, if any, and interest on the Notes, to the extent lawful, and
the due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any
failure to enforce the provisions of any such Note or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
such Note except by payment in full of the principal thereof, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such
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Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided
for in this Article 10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be valid
or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each
Guarantor hereby agrees that a notation of such Guarantee shall be placed on
each Note authenticated and made available for delivery by the Trustee and that
this Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees of
Senior Indebtedness) and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of
such Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. In making any calculation
relevant to determining such maximum amount, all Senior Indebtedness shall be
deemed to have been incurred prior to the Issue Date.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it will cause any
Restricted Subsidiary which becomes obligated to guarantee the Notes, pursuant
to the terms of Section 4.18 hereof, to execute a supplemental indenture
satisfactory in form and substance to the Trustee pursuant to which such
Restricted Subsidiary shall guarantee the obligations of the Company under the
Notes and this Indenture in accordance with this Article 10 with the same
effect and to the same extent as if such Person had been named herein as a
Guarantor. Upon the execution of such a Supplemental Indenture, the Guarantee
of such Restricted Subsidiary shall be deemed to be notated on each outstanding
Note. Notes delivered by the Trustee after the execution and delivery of such
Supplemental Indenture shall include the notation of the Guarantee of such
Restricted Subsidiary but the failure to include such a notation shall not
otherwise effect the validity or enforceability of such Guarantee.
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Section 10.05. Release of Guarantor.
Upon (i) the release of all guarantees by a Guarantor of any
Indebtedness of the Company and the release of all Liens on the property and
assets of such Guarantor securing such guarantees or Indebtedness or (ii) the
sale or disposition (whether by merger, sale of stock or otherwise) of a
Guarantor (or substantially all of its assets) to an entity which is not a
Subsidiary of the Company which is otherwise in compliance with this Indenture
(and providing that the guarantees and Liens referred to in the foregoing
clause (i) are also released at such time), and in each such case, the delivery
to the Trustee of an Officers' Certificate and an Opinion of Counsel, each
stating that all such conditions in the foregoing clause (i) or (ii), as the
case may be, have been complied with, such Guarantor shall be deemed released
from all of its obligations under this Indenture and its Guarantor.
Section 10.06. Guarantee Obligations Subordinate to Senior Indebtedness.
Each Guarantor and each Holder, by its acceptance of the Notes,
agree that the payment of the principal of and interest on the Notes pursuant
to the Guarantees and any other payment in respect of the Notes by each
Guarantor is subordinated, to the extent and in the manner provided in this
Article 10, to the prior payment in full in cash of all Senior Indebtedness of
such Guarantor and that these subordination provisions are for the benefit of
the holders of Senior Indebtedness of the Guarantors.
This Article 10 shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness of a Guarantor, and such provisions are made for
the benefit of the holders of Senior Indebtedness of the Guarantors, and such
holders are made obligees hereunder and any one or more of them may enforce
such provisions.
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Section 10.07. No Payment on Guarantees in Certain Circumstances.
(a) No payment (by set-off or otherwise) shall be made by or on
behalf of a Guarantor on account of its Obligations on its Guarantee) (other
than Junior Securities), (i) upon the maturity of any Senior Indebtedness of
such Guarantor by lapse of time, acceleration (unless waived) or otherwise,
unless and until all principal of, premium, if any, and interest on such Senior
Indebtedness of such Guarantor are first paid in full in cash or (ii) in the
event of default in the payment of any principal of, premium, if any, or
interest on Senior Indebtedness of such Guarantor when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise (a "Guarantor Payment Default"), unless and until such
Guarantor Payment Default has been cured or waived or otherwise has ceased to
exist.
(b) Upon (i) the happening of an event of default (other than a
Guarantor Payment Default) that permits the holders of Designated Senior
Indebtedness of a Guarantor to declare such Designated Senior Indebtedness of
such Guarantor to be due and payable and (ii) written notice of such event of
default given to such Guarantor, the Company and the Trustee by the
representative of the holders of such Designated Senior Indebtedness of such
Guarantor (a "Guarantor Payment Notice"), then, unless and until such event of
default has been cured or waived or otherwise has ceased to exist, no payment
(by set-off or otherwise) may be made by or on behalf of such Guarantor on
account of its Obligations under its Guarantee, other than payments made with
Junior Securities. Notwithstanding the foregoing, unless the Designated Senior
Indebtedness of such Guarantor in respect of which such event of default exists
has been declared due and payable in its entirety within 179 days after the
Guarantor Payment Notice is delivered as set forth above (the "Guarantor
Payment Blockage Period") (and such declaration has not been rescinded or
waived), at the end of the Guarantor Payment Blockage Period, such Guarantor
shall, unless a Guarantor Payment Default with respect to such
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Designated Senior Indebtedness of such Guarantor exists, resume making any and
all required payments in respect of its Obligations under its Guarantee. Any
number of Guarantor Payment Notices may be given; provided, however, that (i)
not more than one Guarantor Payment Notice shall be given within a period of
any 360 consecutive days, and (ii) no default that existed upon the date of
such Guarantor Payment Notice if the representative of the holders of
Designated Senior Indebtedness of such Guarantor that gave such Guarantor
Payment Notice knew of such default on such date (whether or not such event of
default is on the same issue of Designated Senior Indebtedness of such
Guarantor) shall be made the basis for the commencement of any other Guarantor
Payment Blockage Period unless such default has been cured or waived for a
period of at least 90 consecutive days.
(c) In furtherance of the provisions of Section 10.01, in the
event that, notwithstanding the foregoing provisions of this Section 10.07, any
payment on account of a Guarantor's Obligations on its Guarantee (other than
Junior Securities) shall be received by the Trustee at a time when such payment
is prohibited by the provisions of this Section 10.07, such payment shall be
held in trust for the benefit of the holders of Senior Indebtedness of such
Guarantor, and shall be paid or delivered by the Trustee, to the holders of
Senior Indebtedness of such Guarantor remaining unpaid or to their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness of such Guarantor may have been issued, ratably according to the
aggregate principal amounts remaining unpaid on account of such Senior
Indebtedness of such Guarantor held or represented by each, for application to
the payment of all such Senior Indebtedness of such Guarantor remaining unpaid,
to the extent necessary to pay or provide for the payment of all such Senior
Indebtedness of such Guarantor in full in cash after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness
of such Guarantor.
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Section 10.08. Guarantee Obligations Subordinated to Prior Payment of All
Senior Indebtedness of Guarantors on Dissolution, Liquidation or
Reorganization.
Upon any distribution of assets of a Guarantor upon any
dissolution, winding up, total or partial liquidation or reorganization of such
Guarantor, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Indebtedness of such Guarantor
will first be entitled to receive payment in full in cash before the Holders
are entitled to receive any payment on account of such Guarantor's Obligations
on its Guarantee (other than Junior Securities);
(b) any payment or distribution of assets of such Guarantor of
any kind or character from any source, whether in cash, property or securities
(other than Junior Securities) to which the Holders or the Trustee on behalf of
the Holders would be entitled (by set-off or otherwise), except for the
provisions of this Article 10, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution directly to the
holders of such Senior Indebtedness of such Guarantor or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness of such
Guarantor may have been issued, ratably according to the aggregate principal
amounts remaining unpaid on account of such Senior Indebtedness of such
Guarantor held or represented by each, for application to the payment of all
such Senior Indebtedness of such Guarantor remaining unpaid, to the extent
necessary to make payment in full (or have such payment duly provided for) on
all such Senior Indebtedness of such Guarantor remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness of such Guarantor; and
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(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of such Guarantor (other than Junior
Securities) shall be received by the Trustee at a time when such payment or
distribution is prohibited by the foregoing provisions, such payment or
distribution shall be held in trust for the benefit of the holders of such
Senior Indebtedness of such Guarantor, and shall be paid or delivered by the
Trustee to the holders of such Senior Indebtedness of such Guarantor remaining
unpaid, to their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Indebtedness of such Guarantor may have been issued, ratably
according to the aggregate principal amounts remaining unpaid on account of
such Senior Indebtedness of such Guarantor held or represented by each, for
application to the payment of all such Senior Indebtedness of such Guarantor
remaining unpaid, to the extent necessary to pay all such Senior Indebtedness
of such Guarantor in full in cash after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness of such Guarantor.
Section 10.09. Holders to be Subrogated to Rights of Holders of Senior
Indebtedness of Guarantors.
Subject to the payment in full in cash of all Senior Indebtedness
of each Guarantor as provided herein, the Holders of Notes shall be subrogated
to the rights of the holders of such Senior Indebtedness of such Guarantor to
receive payments or distributions of assets of such Guarantor applicable to the
Senior Indebtedness of such Guarantor until all amounts owing on the Notes
shall be paid in full, and for the purpose of such subrogation no such payments
or distributions to the holders of such Senior Indebtedness of such Guarantor
by or on behalf of such Guarantor, or by or on behalf of the Holders by virtue
of this Article 10, which otherwise would have been made to the Holders shall,
as between such Guarantor and the Holders, be deemed to be payment by such
Guarantor or on account of such Senior Indebtedness of such Guarantor, it being
understood that the provisions of this Article 10 are and are intended
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solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of such Senior Indebtedness of such Guarantor, on the
other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article 10, to the
payment of amounts payable under Senior Indebtedness of a Guarantor, then the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness of such Guarantor any payments or distributions received by such
holders of Senior Indebtedness of such Guarantor in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness of such Guarantor in full in cash.
Section 10.10. Application of Certain Article 11 Provisions.
The provisions of Sections 11.05, 11.06, 11.07, 11.08. 11.09,
11.10, 11.11, and 11.12 hereof shall apply, mutatis mutandis, to each Guarantor
and their respective holders of Senior Indebtedness and the rights, duties and
obligations set forth therein shall govern the rights, duties and obligations
of each Guarantor, the holders of Senior Indebtedness of such Guarantor, the
Holders and the Trustee with respect to the Guarantee of such Guarantor and all
references therein to Article 11 hereof shall mean this Article 10.
Section 10.11. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the
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Notes or any other Guarantor's Obligations with respect to its Guarantee.
ARTICLE 11.
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Company and each Holder, by its acceptance of the Notes,
agree that (a) the payment of the principal of and interest on the Notes and
(b) any other payment in respect of the Notes, including on account of the
acquisition or redemption of the Notes by the Company (including, without
limitation, pursuant to Section 4.14 or 4.21) is subordinated, to the extent
and in the manner provided in this Article 11, to the prior payment in full in
cash of all Senior Indebtedness of the Company and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
This Article 11 shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
Section 11.02. No Payment on Notes in Certain Circumstances.
(a) No payment (by set-off or otherwise) shall be made by or on
behalf of the Company on account of the principal of, premium, if any, or
interest on the Notes (including any repurchases of Notes), or on account of
the redemption provisions of the Notes, for cash or property (other than Junior
Securities), (i) upon the maturity of any Senior Indebtedness of the Company by
lapse of time, acceleration (unless waived) or otherwise, unless and until all
principal of, premium, if any, and interest on such Senior Indebtedness are
first paid in full in cash or (ii) in the event of default in the payment of
any principal of,
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premium, if any, or interest on Senior Indebtedness of the Company when it
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration or otherwise (a "Payment Default"), unless and until such
Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than a
Payment Default) that permits the holders of Designated Senior Indebtedness to
declare such Designated Senior Indebtedness to be due and payable and (ii)
written notice of such event of default given to the Company and the Trustee by
the representative of the holders of such Designated Senior Indebtedness (a
"Payment Notice"), then, unless and until such event of default has been cured
or waived or otherwise has ceased to exist, no payment (by set-off or
otherwise) may be made by or on behalf of the Company on account of the
principal of, premium, if any, or interest on the Notes, or on account of the
redemption provisions of the Notes, other than payments made with Junior
Securities. Notwithstanding the foregoing, unless the Designated Senior
Indebtedness in respect of which such event of default exists has been declared
due and payable in its entirety within 179 days after the Payment Notice is
delivered as set forth above (the "Payment Blockage Period") (and such
declaration has not been rescinded or waived), at the end of the Payment
Blockage Period, the Company shall, unless a Payment Default exists, be
required to pay all sums not paid to the Holders of the Notes during the
Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Notes. Any number of Payment Notices may
be given; provided, however, that (i) not more than one Payment Notice shall be
given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of such Payment Notice if the representative of the
holders of Designated Senior Indebtedness that gave such Payment Notice knew of
such default on such date (whether or not such event of default is on the same
issue of Designated Senior Indebtedness) shall be made the basis for the
commencement of any other Payment Blockage Period unless such default has been
cured or waived for a period of at least 90 consecutive days.
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(c) In furtherance of the provisions of Section 11.01, in the
event that, notwithstanding the foregoing provisions of this Section 11.02, any
payment or distribution of assets of the Company (other than Junior Securities)
shall be received by the Trustee at a time when such payment or distribution is
prohibited by the provisions of this Section 11.02, such payment or
distribution shall be held in trust for the benefit of the holders of such
Senior Indebtedness, and shall be paid or delivered by the Trustee, to the
holders of such Senior Indebtedness remaining unpaid or to their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate principal amounts remaining
unpaid on account of such Senior Indebtedness held or represented by each, for
application to the payment of all such Senior Indebtedness remaining unpaid, to
the extent necessary to pay or provide for the payment of all such Senior
Indebtedness in full in cash after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Section 11.03. Notes Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Indebtedness of the Company will
first be entitled to receive payment in full in cash before the Holders are
entitled to receive any payment on account of the principal of, premium, if
any, and interest on the Notes (other than Junior Securities);
(b) any payment or distribution of assets of the Company of any
kind or character from any source, whether in cash, property or securities
(other than Junior Securities)
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to which the Holders or the Trustee on behalf of the Holders would be entitled
(by set-off or otherwise), except for the provisions of this Article 11, shall
be paid by the liquidating trustee or agent or other person making such a
payment or distribution directly to the holders of such Senior Indebtedness or
their representative to the extent necessary to make payment in full (or have
such payment duly provided for) on all such Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company (other than Junior Securities)
shall be received by the Trustee at a time when such payment or distribution is
prohibited by the foregoing provisions, such payment or distribution shall be
held in trust for the benefit of the holders of such Senior Indebtedness, and
shall be paid or delivered by the Trustee to the holders of such Senior
Indebtedness remaining unpaid, to their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate principal amounts remaining unpaid on
account of such Senior Indebtedness held or represented by each, for
application to the payment of all such Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness in full in cash after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
Section 11.04. Holders to be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full in cash of all Senior Indebtedness
of the Company as provided herein, the Holders of Notes shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Notes shall be paid in full, and for the purpose
of such subrogation no such payments or distributions to the holders of such
Senior Indebtedness by or on behalf of the Company,
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or by or on behalf of the Holders by virtue of this Article 11, which otherwise
would have been made to the Holders shall, as between the Company and the
Holders, be deemed to be payment by the Company or on account of such Senior
Indebtedness, it being understood that the provisions of this Article 11 are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of such Senior Indebtedness, on the
other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 11 shall
have been applied, pursuant to the provisions of this Article 11, to the
payment of amounts payable under Senior Indebtedness of the Company, then 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 sufficient to pay all amounts payable
under or in respect of such Senior Indebtedness in full in cash.
Section 11.05. Obligations of the Company Unconditional.
Nothing contained in this Article 11 or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the
Company and the Holders, the obligation of each such Person, 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
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article 11, of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy. Notwithstanding anything to the contrary in this Article 11 or
elsewhere in this Indenture or in the
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Notes, upon any distribution of assets of the Company referred to in this
Article 11, the Trustee, subject to the provisions of Sections 7.01 and 7.02,
and the Holders shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution 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 11 so long as such court has been apprised of the
provisions of, or the order, decree or certificate makes reference to, the
provisions of this Article 11. Nothing in this Section 11.05 shall apply to
the claims of, or payments to, the Trustee under or pursuant to Section 7.07.
Section 11.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee unless and until a Trust Officer of the Trustee or any Paying
Agent shall have received, no later than the close of business on the Business
Day prior to such payment, written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any representative therefor and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Sections 7.01 and 7.02, shall be entitled in all respects
conclusively to assume that no such fact exists.
Section 11.07. Application by Trustee of Assets Deposited With it.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article 9 shall be for the sole benefit of Holders of Notes and
shall not be subject to the subordination provisions of this Article 11.
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Otherwise, any deposit of assets with the Trustee or the Paying Agent (whether
or not in trust) for the payment of principal of or interest on any Notes shall
be subject to the provisions of Sections 11.01, 11.02, 11.03 and 11.04;
provided that, if prior to one Business Day preceding the date on which by the
terms of this Indenture any such assets may become distributable for any
purpose (including without limitation, the payment of either principal of or
interest on any Note) the Trustee or such Paying Agent shall not have received
with respect to such assets the written notice provided for in Section 11.06,
then the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
Section 11.08. Subordination Rights Not Impaired by Acts of 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 provisions contained in this Article 11
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or 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 which any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise
deal freely with the Company, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders.
Section 11.09. Holders Authorize Trustee to Effectuate Subordination of Notes.
Each Holder of the Notes by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this
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Article 11 and to protect the rights of the Holders pursuant to this Indenture,
and appoints the Trustee his attorney-in-fact for such purpose, including, in
the event of any dissolution, winding up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of the Company), the immediate filing of a claim for the unpaid
balance of his Notes in the form required in said proceedings and causing said
claim to be approved. If the Trustee does not file a proper claim or proof of
debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Notes. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Indebtedness or
their representative 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 or the holders of Senior Indebtedness or their representative to vote
in respect of the claim of any Holder in any such proceeding.
Section 11.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in
this Article 11 in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
Section 11.11. Article 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 11 shall not be
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construed as preventing the occurrence of a Default or an Event of Default
under Section 6.01 or in any way limit the rights of the Trustee or any Holder
to pursue any other rights or remedies with respect to the Notes.
Section 11.12. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Notes or the Company or any
other Person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 11 or otherwise.
Nothing in this Section 11.12 shall affect the obligation of any other such
Person to hold such payment for the benefit of, and to pay such payment over
to, the holders of Senior Indebtedness or their representative. In the event
of any conflict between the fiduciary duty of the Trustee to the Holders of
Notes and to the holders of Senior Indebtedness, the Trustee is expressly
authorized to resolve such conflict in favor of the Holders.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
Section 12.02. Notices.
Any notice or communication shall be given in writing and
delivered in person, sent by facsimile, delivered by commercial courier service
or mailed by first-class mail, postage prepaid, addressed as follows:
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If to the Company or any Guarantor:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Trustee:
State Street Bank and Trust Company
________________________________
________________________________
Attention: ____________________
The Company, the Guarantors or the Trustee by written notice to
the others may designate additional or different addresses for subsequent
notices or communications. Any notice or communication to the Company, the
Trustee, or the Guarantors shall be deemed to have been given or made as of the
date so delivered if personally delivered; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and five (5) calendar days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its
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sufficiency with respect to other Noteholders. If a notice or communication to
a Noteholder is mailed in the manner provided above, it shall be deemed duly
given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or
by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor
to the Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05 below) 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
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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Section 12.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it
or him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
Section 12.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any Guarantor or any other obligor on the Notes or
by any Affiliate of any of them shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which the Trustee actually
knows are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect to
the Notes and that the pledgee is not the Company, a Guarantor or any other
obligor upon the Notes or any Affiliate of any of them.
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Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
Section 12.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the Commonwealth of Massachusetts.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
Section 12.09. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES 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, THE NOTES OR THE
GUARANTEES.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or any Guarantor shall not have any liability for any
obligations of the Company or
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any Guarantor under the Notes, the Guarantees or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Noteholder by accepting a Note waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Notes.
Section 12.12. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
Section 12.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet 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 or provisions hereof.
Section 12.15. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or 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.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed, and the Company's corporate seal to be hereunto affixed and
attested, all as of the date and year first written above.
XXXXX ADVERTISING COMPANY
By:
-----------------------------
Name:
Title:
ATTEST:
------------------------------
Name:
Title:
Guarantors:
The Xxxxx Corporation
Interstate Logos, Inc.
Xxxxx Advertising of
Colorado Springs, Inc.
Xxxxx Advertising of
Xxxxxxx, Inc.
Xxxxx Advertising of
Mobile, Inc.
Xxxxx Advertising of
South Georgia, Inc.
Xxxxx Advertising of
South Mississippi, Inc.
Xxxxx Advertising of
Tallahassee, Inc.
TLC Properties, Inc.
Missouri Logos, Inc.
Nebraska Logos, Inc.
Oklahoma Logo Signs, Inc.
Utah Logos, Inc.
Ohio Logos, Inc.
Georgia Logos, Inc.
Kansas Logos, Inc.
Lamar Air, LLC
Lamar Pensacola Transit, Inc.
Xxxxx Tennessee Limited
Partner, Inc.
Xxxxx Tennessee Limited
Partnership
Xxxxx Tennessee Limited
Partnership II
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Xxxxx Texas General Partner, Inc.
Xxxxx Texas Limited Partnership
Michigan Logos, Inc.
Minnesota Logos, Inc.
Minnesota Logos, a Partnership
Mississippi Logos, Inc.
New Jersey Logos, Inc.
South Carolina Logos, Inc.
Tennessee Logos, Inc.
Texas Logos, Inc.
TLC Properties II, Inc.
Virginia Logos, In.
Xxxxx Advertising of Youngstown,
Inc.
By:
-----------------------------
Name:
Title:
ATTEST:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-----------------------------
Name:
Title:
ATTEST:
------------------------------
Name:
Title:
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EXHIBIT A
[LEGEND FOR INCLUSION ON GLOBAL NOTES -- THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.] [LEGEND FOR
INCLUSION IF THE DEPOSITARY TRUST COMPANY IS THE DEPOSITARY -- UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION, TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
CUSIP__________
No. ___________ $____________
XXXXX ADVERTISING COMPANY
[____]% SENIOR SUBORDINATED NOTE DUE 2006
Xxxxx Advertising Company, a Delaware corporation (the "Company",
which term includes any successor corporation), for value received promises to
pay to _____________________________or registered assigns the principal sum of
____________________________________________________ Dollars, on ____________,
2006.
Interest Payment Dates: ___________ and __________, commencing __
________, 1997.
Record Dates: ____________ and __________________.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
XXXXX ADVERTISING COMPANY
By:
-----------------------------------
By:
-----------------------------------
[SEAL]
Certificate of Authentication:
This is one of the [ ]%
----
Senior Subordinated Notes due
2006 referred to in the
within-mentioned Indenture
Date:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
------------------------------
Authorized Signatory
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(REVERSE SIDE)
XXXXX ADVERTISING COMPANY
[____]% SENIOR SUBORDINATED NOTE DUE 2006
1. INTEREST.
Xxxxx Advertising Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
semiannually on ______ and ______ of each year (each an "Interest Payment
Date"), commencing on ____________, 1997 at the rate of [____]% per annum.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes.
The Company shall pay interest on overdue principal, and on
overdue premium, if any, and overdue interest, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in
Paragraph 1 above (except defaulted interest) to the person who is the
registered Holder of this Note at the close of business on the Record Date
immediately preceding the Interest Payment Date. The Holder must surrender
this Note to a Paying Agent to collect principal payments. The Company will
pay principal, premium, if any, and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts;
provided, however, that so long as this Note is a Global Note such payments
will be made in immediately available funds and the Company may pay principal,
premium, if any, and interest on a Note which is not a Global Note by check
payable in such money. The Company may mail an interest check with respect to
any Note that is not a Global Note to the Holder's registered address.
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3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company, a trust company
duly organized under the laws of the Commonwealth of Massachusetts (the
"Trustee"), will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to the Holders of the Notes. Neither
the Company nor any of its Subsidiaries or Affiliates may act as Paying Agent
but may act as registrar or co-registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of
______ __, 1996 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of this Note include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the
Indenture. This Note is subject to all such terms, and the Holder of this Note
is referred to the Indenture and said Trust Indenture Act for a statement of
them. All capitalized terms in this Note, unless otherwise defined, have the
meanings assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company
limited to $225,000,000 aggregate principal amount. The Indenture imposes
certain restrictions on, among other things, the incurrence of Indebtedness and
Liens by the Company and its Restricted Subsidiaries, mergers and sale of
assets, the payment of dividends on, or the repurchase of, Capital Stock of the
Company and its Restricted Subsidiaries, certain other Restricted Payments by
the Company and its Restricted Subsidiaries and certain transactions with
Affiliates.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in
the manner provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full in cash of all Senior Indebtedness, and
this
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Note is issued subject to such provisions. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in
whole or in part, at any time on or after _____________, 2001 at the following
redemption prices (expressed as a percentage of principal amount), together, in
each case, with accrued and unpaid interest to the redemption date, if redeemed
during the twelve-month period beginning on ________, of each year listed
below:
Year Percentage
---- ----------
2001 . . . . . . . . . . . . . . . . %
2002 . . . . . . . . . . . . . . . . %
2003 . . . . . . . . . . . . . . . . %
2004 and thereafter . . . . . . . . . 100.0000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to $75 million of the original principal amount of the Notes at
any time and from time to time prior to ___________, 1999 at a redemption price
equal to _____% of the aggregate principal amount so redeemed, plus accrued
interest to the redemption date out of the Net Proceeds of one or more Public
Equity Offerings; provided that at least $150 million of the aggregate
principal amount of the Notes originally issued remain outstanding immediately
after the occurrence of any such redemption and that any such redemption occurs
within 120 days following the closing of any such Public Equity Offering.
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7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first-class mail at least
30 days but not more than 60 days prior to the redemption date to each Holder
of Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth
in the Indenture. The Company is also required to make an offer to purchase
Notes upon occurrence of a Change of Control in accordance with procedures set
forth in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations
of $1,000 and integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, 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 of or
exchange any Note selected for redemption or register the transfer of or
exchange any Note for a period of 15 days before a selection of Notes to be
redeemed or any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of
it for all purposes.
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11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to
money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Company, the Guarantors and the
Trustee 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 in a particular instance with the consent of
the Holders of a majority in principal amount of the Notes then outstanding.
Without the consent of Holders, the Company, the Guarantors and the Trustee may
amend the Indenture or the Notes or supplement the Indenture for certain
specified purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or
making any other change that does not adversely affect the rights of any
Holder.
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity reasonably satisfactory to it before it enforces
the Indenture or the Notes. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of Notes notice of any continuing Default or Event of Default
(except a Default in
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payment of principal or interest) if it determines that withholding notice is
in their interest.
14. 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, any Guarantor or their Affiliates, and may otherwise deal with the
Company, any Guarantor or their Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company or any Guarantor under
the Notes or the Indenture or for any claim based on, in respect or by reason
of, such obligations or their creation. The Holder of this Note by accepting
this Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Note.
16. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note 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).
18. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the
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Company has caused CUSIP Numbers to be printed on the Notes and has directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders of the Notes. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE AGREES 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 THE INDENTURE OR THIS NOTE.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
XXXXX ADVERTISING COMPANY, 0000 XXXXXXXXX XXXXXXXXX, XXXXX XXXXX, XXXXXXXXX
00000, Attention: Chief Financial Officer.
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
------------------- ------------------------
---------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
----------------------------------
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[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Each Guarantor (the "Guarantor", which term includes any
successor Person under the Indenture) has unconditionally guaranteed, on a
senior subordinated basis, jointly and severally, to the extent set forth in
the Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and interest on the Notes, to the extent permitted by law
and the due and punctual performance of all other Obligations of the Company to
the Noteholders or the Trustee all in accordance with the terms set forth in
the Indenture, and (b) in case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Noteholders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Guarantee
is noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
Guarantors:
THE XXXXX CORPORATION
INTERSTATE LOGOS, INC.
XXXXX ADVERTISING OF
COLORADO SPRINGS, INC.
XXXXX ADVERTISING OF
XXXXXXX, INC.
XXXXX ADVERTISING OF
MOBILE, INC.
XXXXX ADVERTISING OF
SOUTH GEORGIA, INC.
XXXXX ADVERTISING OF
SOUTH MISSISSIPPI, INC.
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134
XXXXX ADVERTISING OF
TALLAHASSEE, INC.
TLC PROPERTIES, INC.
MISSOURI LOGOS, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
UTAH LOGOS, INC.
OHIO LOGOS, INC.
GEORGIA LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR AIR, LLC
LAMAR PENSACOLA TRANSIT, INC.
XXXXX TENNESSEE LIMITED
PARTNER, INC.
XXXXX TENNESSEE LIMITED
PARTNERSHIP
XXXXX TENNESSEE LIMITED
PARTNERSHIP II
XXXXX TEXAS GENERAL PARTNER, INC.
XXXXX TEXAS LIMITED PARTNERSHIP
MICHIGAN LOGOS, INC.
MINNESOTA LOGOS, INC.
MINNESOTA LOGOS, A PARTNERSHIP
MISSISSIPPI LOGOS, INC.
NEW JERSEY LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
TENNESSEE LOGOS, INC.
TEXAS LOGOS, INC.
TLC PROPERTIES II, INC.
VIRGINIA LOGOS, INC.
Xxxxx Advertising of Youngstown,
Inc.
By:
----------------------------------
Name:
Title:
ATTEST:
------------------------------
Name:
Title:
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135
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.14 or Section 4.21 of the
Indenture, check the appropriate box:
/ / Section 4.14 / / Section 4.21
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.14 or Section 4.21 of the Indenture, state the
amount you elect to have purchased:
$
-----------------
Date:
-----------
Your Signature:
-----------------------------
(Sign exactly as your name appears on the face
of this Note)
---------------------------
Signature Guaranteed
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